ADJ15991395 — California WCAB decision

What the panel ordered

Petition for reconsideration granted; final decision deferred pending further review of the merits and record development.

Applicant sought reconsideration of the January 27, 2026 Findings, Award & Orders; WCAB grants reconsideration and defers final decision pending further review.

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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.

ApportionmentRemandedlumbar spine · sacroiliac joint

The WCAB found it unclear whether there was substantial medical evidence to support the WCJ's decision regarding permanent disability and apportionment, noting deficiencies in the medical record and the need for further development of the record.

From the decision · page 12Here, it is unclear from our preliminary review that there is substantial medical evidence to support the WCJ's decision, regarding permanent disability and apportionment without additional development of the record, or his decision to defer the issue of entitlement of the SJDB voucher. Where the medical evidence or opinion on an issue is incomplete, stale, and no longer germane, or is based on an inaccurate history, or speculation, it does not constitute substantial evidence. (Place v. Workers' Comp. Appeals Bd. (1970) 3 Cal.3d 372 [35 Cal.Comp.Cases 525]; Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 621 (Appeals Board en banc).)

The facts that decided it

What the panel treated as outcome-determinative, and which side it favoured.

Dr. Fisher's apportionment opinion was based on a thorough review of the applicant's extensive prior medical records and multiple re-examinations, supporting his allocation of 70% of disability to prior causes.

Favours Defendant prevailed

The panel found Dr. Fisher's opinion more persuasive and better supported than Dr. Ganga's, impacting the need for further record development.

From the decision · page 8In contrast, Dr. Ganga, whose P&S report dated April 16, 2025 (Applicant's 1) was evidently solicited by Applicant's attorney to rebut the QME's opinions and post-dates Dr. Fisher's by approximately 5 months, in her discussion of apportionment, does not seem to have reviewed the entirety of the medical records that Dr. Fisher. (Id. at p. 11.) A failure to review all relevant medical records can render a medical/legal opinion non-substantial. In formulating and explaining her apportionment opinion that only 40% of the current PD was due to Applicant's prior injuries and/or pre-existing non-industrial conditions, she appears to heavily rely on Applicant's subjective employment history which on its face appears to minimize any symptoms or back problems in the years before this injury. (Id. at pp 5-6.) This subjective history in my view and on its face does not seem congruent with the records and medical treatment history cited and reviewed by Dr.

Dr. Ganga did not review all relevant medical records and relied on subjective history, which minimized prior symptoms and was inconsistent with the record.

Favours Defendant prevailed

Her apportionment opinion was not found to be substantial medical evidence, leading to the need for further record development.

From the decision · page 8In contrast, Dr. Ganga, whose P&S report dated April 16, 2025 (Applicant's 1) was evidently solicited by Applicant's attorney to rebut the QME's opinions and post-dates Dr. Fisher's by approximately 5 months, in her discussion of apportionment, does not seem to have reviewed the entirety of the medical records that Dr. Fisher. (Id. at p. 11.) A failure to review all relevant medical records can render a medical/legal opinion non-substantial. In formulating and explaining her apportionment opinion that only 40% of the current PD was due to Applicant's prior injuries and/or pre-existing non-industrial conditions, she appears to heavily rely on Applicant's subjective employment history which on its face appears to minimize any symptoms or back problems in the years before this injury. (Id. at pp 5-6.) This subjective history in my view and on its face does not seem congruent with the records and medical treatment history cited and reviewed by Dr.

The absence of the DWC-AD 10133.36 form in evidence made the record insufficient to determine entitlement to a SJDB voucher.

Favours neutral

This deficiency required deferral of the SJDB voucher issue and further record development.

From the decision · page 9Finally, the Petition alleges error in failing to award a SJDB voucher. My rationale in the Opinion on Decision in finding that the record was insufficient to make such a finding was that the copy of the QME's P&S report in evidence, i.e., Joint 101, Report dated 12/16/24, did not have an attached DWC-AD 1011.33.36 form, which provides for specific work restrictions and as discussed in the Opinion at p. 12, is the trigger for the investigative process by the employer to determine if modified or alternative work can and will be offered pursuant to Rule 10133.31. The Opinion notes that it is possible there was such a completed form and that it was just not attached to the copy of the report that was uploaded. I therefore officially found and concluded that the record was insufficient to make a finding on whether the Applicant was entitled to a SJDB voucher in this case. See FA&O Finding No. 7.

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.

QMERelied upon · orthopedic

Dr. Fisher apportioned 30% of the applicant's disability to the industrial injury and 70% to prior causes, including prior surgery and anatomic configuration. He reviewed extensive medical records and found his opinions unchanged after reviewing additional records.

His apportionment opinion was found more persuasive and better supported by the record than the PTP's opinion.

From the decision · page 6Therefore, with the anatomic configurations shown in the medical records, including the narrowing of the canal and the joint space hypertrophy enlargement, which enters into the canal further to decrease the size, he was at high risk for any type of injury that may have caused further single- level disc herniations. Because he did have any [sic?] injury, which appears to have resulted in additional back pain and also some radiation to his feet in the form of tingling, I feel that this would be significant enough that this injury has resulted in increase in his symptoms that would not have been present had the injury not occurred. For this reason, I apportioned 30% to the injury. Seventy percent would be due to the previous causes that were present, which included prior surgery and his anatomic configuration." (Id. at p. 2.)

PTPRejected · physiatry

Dr. Ganga found 60% of lumbar spine impairment due to the industrial injury and 40% due to prior injury, surgery, and degenerative changes, with no apportionment for SI dysfunction. She provided a combined WPI rating of 16 using Almaraz/Guzman for the SI joint.

Her opinion was found not to be substantial medical evidence due to insufficient review of medical records and reliance on subjective history.

From the decision · page 7rating of 16 WPI. (Id. at p. 11.) As to apportionment, she finds none for the SI dysfunction and as to the low back states as follows: "After considering the entirety of the medical evidence in this case, it is my opinion to a degree of reasonable medical probability, that 60% of the permanent disability/whole person impairment of his lumbar spine is due to the industrial injury of 02/24/22. The remaining 40% of lumbar spine impairment is due to his prior injury, surgery and degenerative change residuals." (Id. at p. 12.)

The rules the panel named

Authorities as the decision cited them, with how this panel applied each one.

Labor Code § 4663

Section 4663 requires that apportionment of permanent disability be based on causation, and that a physician's report must address the issue of causation and apportionment with adequate explanation and substantial evidence.

The panel reviewed whether the medical opinions met the substantial evidence standard for apportionment under section 4663.

From the decision · page 10Marshalls (2005) 70 Cal.Comp.Cases 604, 620-621 (Appeals Bd. en banc).) "Medical reports and opinions are not substantial evidence if they are known to be erroneous, or if they are based on facts no longer germane, on inadequate medical histories and examinations, or on incorrect legal theories. Medical opinion also fails to support the Board's findings if it is based on surmise, speculation, conjecture or guess." (Hegglin v. Workmen's Comp. Appeals Bd. (1971) 4 Cal.3d 162, 169 [36 Cal.Comp.Cases 93].) Section 4663 provides that "[a]pportionment of permanent disability shall be based on causation." (Lab. Code, § 4663(a).) A doctor who prepares a report addressing the issue of permanent disability due to a claimed industrial injury must address the issue of causation of the permanent disability. (Lab. Code, § 4663(b).) Section 4663 requires that the doctor "make an apportionment determination by finding what approximate percentage of the permanent disability was caused by the direct result of injury arising out of and occurring in the course of employment

Hegglin v. Workmen's Comp. Appeals Bd. (1971) 4 Cal.3d 162, 169; Place v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 372, 378–379

A medical opinion is not substantial evidence if it is based on facts no longer germane, on inadequate medical histories or examinations, on incorrect legal theories, or on surmise, speculation, conjecture, or guess.

The panel applied this standard to evaluate the sufficiency of the medical opinions on apportionment.

From the decision · page 11The report by the physician addressing the issue of apportionment must be supported by substantial evidence. (Escobedo, supra, 70 Cal.Comp.Cases at p. 620, citing Lab. Code, § 5952(d); Lamb v. Workmen's Comp. Appeals Bd. (1974) 11 Cal.3d 274, 281 [39 Cal.Comp.Cases 310]; Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312, 317 [35 Cal.Comp Cases 500]; LeVesque v. Workmen's Comp. Appeals Bd. (1970) 1 Cal.3d 627, 635 [35 Cal.Comp.Cases 16].) A medical opinion is not substantial evidence if it is based on facts no longer germane, on inadequate medical histories or examinations, on incorrect legal theories, or on surmise, speculation, conjecture, or guess. (Hegglin, supra, 4 Cal.3d at p. 169; Place v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 372, 378§ 379 [35 Cal.Comp.Cases 525].)

Rule 10133.31

The trigger for entitlement to a SJDB voucher is completion of the DWC-AD10133.36 form.

The panel found the record insufficient to determine entitlement to the SJDB voucher due to the absence of the required form.

From the decision · page 9Although the Petition cites to a writ denied case, Opus One Labs v. Workers' Comp. Appeals Bd., (Fndkyan), (2019) 80 Cal.Comp.Cases 634, for the premise that a QME report with work restrictions can be sufficient to put an employer on notice to initiate an investigation into whether the employer can/will offer modified work and provide a voucher if they cannot, I think it is distinguishable. In this case, unlike that one, I did not make a finding the Applicant is not entitled to a SJDB voucher, and merely found the record was insufficient to make a finding either way, given the lack of the required DWC form in evidence. In fact, I ordered the record be developed on that issue in Order No. 3. As noted above, I should have made it clearer that the entitlement to the SJDB voucher issue and the associated penalty claim was deferred pending that discovery. I also still read Rule 10133.31(b) as establishing that the trigger for entitlement to a SJDB voucher is completion of the DWC-AD10133.36 form, and to the extent that Fndkyan is read or interpreted to the contrary, I note that it is not binding authority, and on these facts does not seem applicable or persuasive to me.

What proof carried it

The evidence the panel weighed, by kind.

Medical recordsfavours Defendant prevailed

Dr. Fisher's review of extensive prior medical records and multiple re-examinations supported his apportionment opinion.

From the decision · page 8In contrast, Dr. Ganga, whose P&S report dated April 16, 2025 (Applicant's 1) was evidently solicited by Applicant's attorney to rebut the QME's opinions and post-dates Dr. Fisher's by approximately 5 months, in her discussion of apportionment, does not seem to have reviewed the entirety of the medical records that Dr. Fisher. (Id. at p. 11.) A failure to review all relevant medical records can render a medical/legal opinion non-substantial. In formulating and explaining her apportionment opinion that only 40% of the current PD was due to Applicant's prior injuries and/or pre-existing non-industrial conditions, she appears to heavily rely on Applicant's subjective employment history which on its face appears to minimize any symptoms or back problems in the years before this injury. (Id. at pp 5-6.) This subjective history in my view and on its face does not seem congruent with the records and medical treatment history cited and reviewed by Dr.

Testimony and credibilityfavours Defendant prevailed

Dr. Ganga relied heavily on applicant's subjective employment history, which minimized prior symptoms and was not congruent with the medical record.

From the decision · page 8In contrast, Dr. Ganga, whose P&S report dated April 16, 2025 (Applicant's 1) was evidently solicited by Applicant's attorney to rebut the QME's opinions and post-dates Dr. Fisher's by approximately 5 months, in her discussion of apportionment, does not seem to have reviewed the entirety of the medical records that Dr. Fisher. (Id. at p. 11.) A failure to review all relevant medical records can render a medical/legal opinion non-substantial. In formulating and explaining her apportionment opinion that only 40% of the current PD was due to Applicant's prior injuries and/or pre-existing non-industrial conditions, she appears to heavily rely on Applicant's subjective employment history which on its face appears to minimize any symptoms or back problems in the years before this injury. (Id. at pp 5-6.) This subjective history in my view and on its face does not seem congruent with the records and medical treatment history cited and reviewed by Dr.

ADJ15991395 · May 11, 2026