What the panel ordered
Petition for Reconsideration granted; final decision after reconsideration deferredp. 11
Petition for Reconsideration granted; final decision after reconsideration deferred pending further review
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.
The WCJ's findings on apportionment and permanent disability were supported by substantial medical evidence, particularly the expert opinion of Dr. Sommer, which apportioned disability among multiple industrial injuries. The vocational expert's opinion applying vocational rehabilitation apportionment was rejected as legally invalid. The Appeals Board granted reconsideration to further review the merits but preliminarily found the WCJ's apportionment legally valid.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Dr. Sommer apportioned Applicant's lumbar spine disability among multiple industrial injuries with specific percentages.
Favours Defendant prevailed
This medical apportionment was found to be substantial evidence supporting the WCJ's findings and legal conclusions on permanent disability and apportionment.
From the decision · page 4Dr. Michael Sommer M.D. provided the final expert medical opinion on orthopedic issues. (OOD Pg 5 - 7) He gave his expert medical opinion that Applicant's problems and need for medical treatment were caused by the injuries in the 1990s, the specific injury in 2007, the CT-2012 and to additional non-industrial causes. Dr. Sommer divided the causation of the need for treatment and disability of Applicant's lumbar spine with 25% assigned to the prior injuries, 35% to the specific injury in 2007 and 40% to the cumulative trauma injury through February 2012. Dr. Sommer's opinion was found to be substantial medical evidence based on the extensive medical records reviewed and his examinations of Applicant. His assignment of causation and disability based on the factors causing the need for medical treatment is legally consistent with the decision issued in the Justice line of cases.
Vocational expert Scott Simon applied vocational rehabilitation apportionment, which is legally invalid.
Favours Defendant prevailed
The rejection of this opinion supported the denial of Applicant's claim for 100% permanent disability based solely on the cumulative trauma injury.
From the decision · page 5Petitioner also argued Applicant should be found permanently totally disabled based on the opinion ofVRE Scott Simon. (Petition Pg. 4) As discussed above and in the Opinion on Decision the medical record establishes that Applicant has been excluded from the labor market. VRE Simon stated he did not apply vocational rehabilitation apportionment which is an invalid legal theory. He then ignored the medical apportionment given by Dr. Sommer as the medical legal expert and used his lay witness opinion to disregard it finding Applicant's present exclusion from the labor force was caused solely by the cumulative injury. That is actually application of vocational rehabilitation apportionment. Application of vocational rehabilitation apportionment is legally invalid and makes his reporting insubstantial.
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.
Deferred apportionment analysis to Dr. Sommer regarding anorectal, urinary, and sexual dysfunction issues.
Did not provide separate apportionment, deferred to orthopedic expert's opinion.
From the decision · page 5The Findings of Fact regarding Applicant's disability are based on Dr. Sommer's expert medical opinion regarding causation of Applicant's injuries, disabilities and need for medical treatment. Dr. Abdo Faddoul reporting on the anorectal, urinary and sexual dysfunction issue deferred his apportionment analysis to Dr. Sommer as the orthopedic expert. Dr. Sommer explained how and why he reached his expert medical opinion regarding causation of Applicant's cervical, lumbar and right knee injury, disability and need for medical treatment. These findings are found to be substantial and legally valid so the evidence does support the Findings of Fact, and the Petition should be denied.
Apportioned causation of Applicant's lumbar spine disability among prior injuries (25%), the 2007 injury (35%), and the cumulative trauma injury through 2012 (40%).
Based on extensive medical records review and examinations, consistent with Justice line of cases, and supported by stipulations and awards.
From the decision · page 4Dr. Michael Sommer M.D. provided the final expert medical opinion on orthopedic issues. (OOD Pg 5 - 7) He gave his expert medical opinion that Applicant's problems and need for medical treatment were caused by the injuries in the 1990s, the specific injury in 2007, the CT-2012 and to additional non-industrial causes. Dr. Sommer divided the causation of the need for treatment and disability of Applicant's lumbar spine with 25% assigned to the prior injuries, 35% to the specific injury in 2007 and 40% to the cumulative trauma injury through February 2012. Dr. Sommer's opinion was found to be substantial medical evidence based on the extensive medical records reviewed and his examinations of Applicant. His assignment of causation and disability based on the factors causing the need for medical treatment is legally consistent with the decision issued in the Justice line of cases.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Labor Code §§ 4663(a), 4664(a)
Apportionment of permanent disability must be based on causation of the permanent disability, not vocational factors.
The WCJ applied these statutes to uphold Dr. Sommer's apportionment opinion and reject vocational apportionment.
From the decision · page 6(Gatten) (2006) 145 Cal.App.4th 922, 927–928 [71 Cal.Comp.Cases 1687].) Instead, apportionment of permanent disability is “based on causation” and the “employer shall only be liable for the percentage of permanent disability directly caused by the injury arising out of and occurring in the course of employment.” (Lab. Code, §§ 4663(a) and 4664(a).) “The plain reading of ‘causation’ in this context is causation of the permanent disability.” (Escobedo v. Marshalls (Escobedo) (2005) 70 Cal.Comp.Cases 604, 611 (Appeals Board en banc).) Apportionment now includes pathology, asymptomatic prior conditions, and retroactive prophylactic work preclusions, provided there is substantial evidence establishing that these other factors have caused permanent disability. Pursuant to Escobedo, a physician's opinion must rely on reasonable medical probability, cannot be speculative, must rely on pertinent facts and/or an adequate examination and history, and must set forth the reasoning in support of its
Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604
Medical opinion must be based on reasonable medical probability, not speculative, and must explain the 'how and why' of apportionment.
The WCJ found Dr. Sommer's opinion met this standard and was substantial evidence.
From the decision · page 6(Gatten) (2006) 145 Cal.App.4th 922, 927–928 [71 Cal.Comp.Cases 1687].) Instead, apportionment of permanent disability is “based on causation” and the “employer shall only be liable for the percentage of permanent disability directly caused by the injury arising out of and occurring in the course of employment.” (Lab. Code, §§ 4663(a) and 4664(a).) “The plain reading of ‘causation’ in this context is causation of the permanent disability.” (Escobedo v. Marshalls (Escobedo) (2005) 70 Cal.Comp.Cases 604, 611 (Appeals Board en banc).) Apportionment now includes pathology, asymptomatic prior conditions, and retroactive prophylactic work preclusions, provided there is substantial evidence establishing that these other factors have caused permanent disability. Pursuant to Escobedo, a physician's opinion must rely on reasonable medical probability, cannot be speculative, must rely on pertinent facts and/or an adequate examination and history, and must set forth the reasoning in support of its
Nunes v. State of California, Dept. of Motor Vehicles (2023) 88 Cal.Comp.Cases 741
Vocational apportionment is not recognized under Labor Code and is legally invalid.
The WCJ rejected the vocational expert's opinion applying vocational rehabilitation apportionment as invalid.
From the decision · page 7LEXIS 430, *15].) In Benson, we explained that limited situations may justify a joint and several award of permanent disability across multiple dates of injury. (Benson, supra, 72 Cal.Comp.Cases at p. 1634.) Where the reporting physician cannot parcel out, with reasonable medical probability, the approximate percentages to which each distinct industrial injury causally contributed to the overall permanent disability, the employee may be entitled to a combined award. (Id. at pp. 1622–1623.) With respect to vocational expert evidence, pursuant to Nunes v. State of California, Dept. of Motor Vehicles (Nunes I) (2023) 88 Cal.Comp.Cases 741 (Appeals Board en banc), the Appeals Board held as follows:
What proof carried it
The evidence the panel weighed, by kind.
Credibility and substantial evidence of Dr. Sommer's medical opinion on causation and apportionment
From the decision · page 4Dr. Michael Sommer M.D. provided the final expert medical opinion on orthopedic issues. (OOD Pg 5 - 7) He gave his expert medical opinion that Applicant's problems and need for medical treatment were caused by the injuries in the 1990s, the specific injury in 2007, the CT-2012 and to additional non-industrial causes. Dr. Sommer divided the causation of the need for treatment and disability of Applicant's lumbar spine with 25% assigned to the prior injuries, 35% to the specific injury in 2007 and 40% to the cumulative trauma injury through February 2012. Dr. Sommer's opinion was found to be substantial medical evidence based on the extensive medical records reviewed and his examinations of Applicant. His assignment of causation and disability based on the factors causing the need for medical treatment is legally consistent with the decision issued in the Justice line of cases.
Rejection of vocational expert Scott Simon's opinion due to invalid application of vocational rehabilitation apportionment
From the decision · page 5Petitioner also argued Applicant should be found permanently totally disabled based on the opinion ofVRE Scott Simon. (Petition Pg. 4) As discussed above and in the Opinion on Decision the medical record establishes that Applicant has been excluded from the labor market. VRE Simon stated he did not apply vocational rehabilitation apportionment which is an invalid legal theory. He then ignored the medical apportionment given by Dr. Sommer as the medical legal expert and used his lay witness opinion to disregard it finding Applicant's present exclusion from the labor force was caused solely by the cumulative injury. That is actually application of vocational rehabilitation apportionment. Application of vocational rehabilitation apportionment is legally invalid and makes his reporting insubstantial.
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