What the panel ordered
Petition for Reconsideration denied
Petition for Reconsideration filed by defendant after Findings and Award and Opinion on Decision dated January 19, 2022, challenging PD rating and apportionment
What was disputed, and how it came out
Each issue the panel decided, with the reasoning it gave. An outcome is what this panel did on this record — not a rule, and not a prediction.
Defendant failed to prove overlap of disabilities from prior and current injuries to same body part, as required by Labor Code 4664 and case law, so apportionment was not applied.
From the decision · page 4A. DEFENDANT DID [NOT] PROVE THERE WAS OVERLAP FOR APPORTIONMENT PURSUANT TO L.C. § 4664
WCJ properly relied on Panel QME Dr. Bashner's rating and did not err in awarding 9% PD.
From the decision · page 4The trial was scheduled before the undersigned judge on December 10, 2021, at which time the matter was submitted on the record, with no testimony. The undersigned then issued a Findings and Award and Opinion on Decision, on January 19, 2022, finding that the applicant was entitled to an un-apportioned award of 9% PD, pursuant to the findings of the Panel QME Dr. Bashner. Opinion on Decision, page 2, and Findings and Award, both dated January 19, 2022.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Defendant did not provide medical records for prior injury to establish overlap
Favours Applicant prevailed
Without records, overlap of disabilities could not be proven, so apportionment was denied
From the decision · page 2Dr. Bashner addressed the applicant's prior injuries on page 7 of his report, which included the April 2, 2018 injury to her right little finger. However, Dr. Bashner indicated that he was not forwarded any records for the prior injury, and that "Dr. Scheinberg's note states it was a flexor tendon injury to the right fifth finger. The claimant described a strain or sprain injury to the 4th finger." Id. at page 7.
The two injuries involved different mechanisms and rating tables, indicating no overlap
Favours Applicant prevailed
Different injury types and rating methods showed distinct disabilities, supporting no apportionment
From the decision · page 6In the case herein, this judge did not find that there was overlap, because the basis, or "metrics" used to calculate the impairments were different, due to the mechanisms of the two injuries. Specifically, the April 2, 2018 date of injury was described as a "pop" in the tip of the applicant's finger by Dr. Kupperman, who provided the applicant with 1% WPI due to "mildly decreased DIP flexion." Defense Exhibit A, pages 1-3. Dr. Kupperman used Table 16-21 on page 461, titled "Finger Impairments Due to Abnormal Motion of the DIP Joint," which is different from the tables used by Dr. Bashner.
What the panel did with the medical opinions
The role the physician served, and the weight the opinion carried. Physicians are named here as the decision names them; we do not score them.
Applicant sustained a nerve injury to right small finger on September 29, 2020, distinctly different from prior injury; rated 4% WPI plus 2% pain for total 9% PD; apportioned 100% to 2020 injury due to lack of records for prior injury.
Defendant did not provide records for prior injury; injury mechanisms and rating tables differ between injuries; no overlap found.
From the decision · page 2For the claim herein, the parties proceeded to the Panel QME Dr. Bashner, who examined the applicant on August 24, 2021, and reported that the applicant had sustained an injury on September 29, 2020, to her right little finger, while "bagging a patient and was not able to clear herself before the shock was delivered to the patient." Joint Exhibit 1, page 1. The applicant reported to Dr. Bashner that she had previously injured her right little finger in 2018, and that her "finger had been feeling fine until this recent incident." Id. at page 2. The applicant treated with Dr. Kupperman as her PTP for both her April 2, 2018 date of injury and for the September 29, 2020 injury. However, Dr. Bashner was only provided with Dr. Kupperman's reports for the September 29, 2020 injury.
Treated applicant for both 2018 and 2020 injuries; rated 1% WPI for 2018 injury due to mild decreased DIP flexion.
Described 2018 injury as a 'pop' in finger tip with mild decreased DIP flexion; used different rating table than 2020 injury.
From the decision · page 2Pursuant to the records reviewed by the panel QME, the applicant initially treated with Dr. Kupperman, who in a report dated December 18, 2020 found that the applicant had a "nerve injury" to her right small finger, and that she be examined by a neurologist, and treated for bilateral carpal tunnel syndrome. Joint Exhibit 1, pages 3-4. The applicant then changed treating doctors to Dr. Scheinberg, who examined the applicant on March 3, 2021, and found that the applicant was "status post shock to the right upper extremity resulting in possible ulnar nerve damage." Id. at page 4. On May 12, 2021, Dr. Scheinberg issued a Permanent and Stationary report, finding that the applicant had 0% PD, and no apportionment. Id. at page 5.
Examined applicant March 3, 2021; found possible ulnar nerve damage from electrical shock; issued 0% PD and no apportionment on May 12, 2021.
Described 2020 injury as nerve injury different from 2018 injury; no PD or apportionment found.
From the decision · page 2Pursuant to the records reviewed by the panel QME, the applicant initially treated with Dr. Kupperman, who in a report dated December 18, 2020 found that the applicant had a "nerve injury" to her right small finger, and that she be examined by a neurologist, and treated for bilateral carpal tunnel syndrome. Joint Exhibit 1, pages 3-4. The applicant then changed treating doctors to Dr. Scheinberg, who examined the applicant on March 3, 2021, and found that the applicant was "status post shock to the right upper extremity resulting in possible ulnar nerve damage." Id. at page 4. On May 12, 2021, Dr. Scheinberg issued a Permanent and Stationary report, finding that the applicant had 0% PD, and no apportionment. Id. at page 5.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Labor Code 4664
Labor Code 4664 burden of proof for apportionment
Defendant must prove overlap of disabilities from prior and current injuries to same body part to apply apportionment
From the decision · page 4A. DEFENDANT DID [NOT] PROVE THERE WAS OVERLAP FOR APPORTIONMENT PURSUANT TO L.C. § 4664
Cal. Code Regs., tit. 8, 10166(b); Blackledge v. Bank of America (2010) 75 Cal.Comp.Cases 613 (Appeals Board en banc)
Consultative rating determinations are not admissible in judicial proceedings; WCJ discretion to rely on own expertise in rating
WCJ properly relied on Panel QME Dr. Bashner's rating and did not err in awarding 9% PD
From the decision · page 4The trial was scheduled before the undersigned judge on December 10, 2021, at which time the matter was submitted on the record, with no testimony. The undersigned then issued a Findings and Award and Opinion on Decision, on January 19, 2022, finding that the applicant was entitled to an un-apportioned award of 9% PD, pursuant to the findings of the Panel QME Dr. Bashner. Opinion on Decision, page 2, and Findings and Award, both dated January 19, 2022.
What proof carried it
The evidence the panel weighed, by kind.
Defendant did not prove overlap of disabilities from prior and current injuries to same body part
From the decision · page 4A. DEFENDANT DID [NOT] PROVE THERE WAS OVERLAP FOR APPORTIONMENT PURSUANT TO L.C. § 4664
The same issues, filtered across the whole corpus — or paste your own facts and let the search rank by factor match.
About this page
- A published decision of the California Workers' Compensation Appeals Board, taken apart by what it turned on. The Board publishes the decision itself; this page adds the extraction and quotes the passage behind every claim.
- The injured worker is not named here, and the case caption is not printed. Physicians appear as the decision names them, because a medical opinion is an act in a public proceeding.
- Issues, outcomes and weights were extracted by AI and released only where the source passage checked. Read the official decision before relying on anything here. Not legal advice.
- If you are named in this decision and want this page removed, write to privacy@similarcase.com.