ADJ8973029 · May 26, 2026

Favours Applicant prevailed

This was credited as substantial evidence for 100% permanent disability without apportionment.

PQME Dr. Sussman's 20% nonindustrial apportionment opinion was rejected as speculative and lacking explanation of ADL impact.

Favours Applicant prevailed

Its rejection meant no apportionment was applied, supporting a 100% industrial award.

From the decision · page 14In addition, we also find PQME Dr. Sussman's opinion to add the physical pain and psychological WPIs to be similarly flawed. While he also finds a "synergistic effect," based merely on inhibition and restriction, he failed to provide any further specificity regarding its impact on applicant's ADLs. Therefore, we must also find his opinion unpersuasive.

Sub rosa video surveillance did not contradict applicant's reported limitations or the medical consensus, and was found consistent with the restrictions imposed.

Favours Applicant prevailed

This undermined the defense's argument that applicant was employable and supported the finding of total disability.

From the decision · page 19Tincher, whose opinion defendant relied upon, expressly conceded that the mundane activities captured on film, such as driving, walking, and carrying light items, remained entirely consistent with the physical limitations established by the medical record. Moreover, applicant provided credible, unrefuted testimony contextualizing her limited involvement at the haunted house as a self-paced, non-physical endeavor that she abandoned whenever her pain or anxiety escalated. Because the sub rosa video merely corroborated the existing medical consensus rather than contradicting it, the WCJ's failure to author a granular summary of the video is, at most, a harmless procedural oversight that does not dilute the substantial evidence supporting the 100% permanent disability award. Accordingly, we affirm the WCJ's decision.

Outlined strict work restrictions including no lifting more than five pounds with left upper extremity, no work above horizontal, no excessive neck rotation, or repetitive flexion/extension of left elbow/wrist. His methodology for adding impairments rather than using CVC was rejected as not substantial evidence under Vigil.

His impairment aggregation method was found conclusory and lacking explanation of ADL impact, thus not substantial evidence for rating.

From the decision · page 14Here, in evaluating the permanent disability rating methodology, PQME Dr. Goldstein's conclusion that adding rather than the CVC to aggregate the cervical spine and left shoulder impairments is more accurate fails to constitute substantial medical evidence. Under Vigil, an evaluating physician may rebut the CVC only by articulating how the rated body parts affect separate and distinct ADLs or how overlapping ADLs result in an amplified overall functional impact. An employee must present evidence explaining the specific impact the impairments have upon their ADLs to justify departing from the CVC table. Unfortunately, PQME Dr. Goldstein merely posits a "synergistic effect" between the cervical spine and the left shoulder to justify adding the impairments to reach 35% WPI. However, this conclusory assertion rests on guesswork and fails to explain explicitly the supporting reasoning to constitute substantial evidence. Because PQME Dr. Goldstein fails to detail the specific impact upon applicant's ADLs or document the functional absence of overlap required to rebut the schedule, his methodology does not comport with the evidentiary standards we require under Vigil.

Corroborated applicant's limitations, noted need for unpredictable work absences due to headaches, assessed 7% WPI (later 5%) for headaches without apportionment, and maintained restrictions after reviewing sub rosa video.

His restrictions were credited as part of the medical basis for vocational expert's finding of 100% disability.

Found 20% nonindustrial apportionment for psyche, but his opinion was rejected as speculative and lacking explanation of ADL impact.

His apportionment opinion was found not substantial evidence and was rejected for lack of specificity and reasoning.

From the decision · page 14In addition, we also find PQME Dr. Sussman's opinion to add the physical pain and psychological WPIs to be similarly flawed. While he also finds a "synergistic effect," based merely on inhibition and restriction, he failed to provide any further specificity regarding its impact on applicant's ADLs. Therefore, we must also find his opinion unpersuasive.

Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 621 (en banc)

To constitute substantial evidence, a medical or vocational opinion must state its conclusions in terms of reasonable probability, avoid speculation, rely on pertinent facts and an adequate examination and history, and explain the reasoning supporting its conclusions.

Applied to reject opinions lacking detailed reasoning or explanation of ADL impact for apportionment and rating.

From the decision · page 13(1970) 1 Cal.3d 627 [35 Cal.Comp.Cases 16].) To constitute substantial evidence, a medical or vocational opinion must state its conclusions in terms of reasonable probability, avoid speculation, rely on pertinent facts and an adequate examination and history, and explain the reasoning supporting its conclusions. (Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 621 (Appeals Board en banc).) Medical and vocational reports do not constitute substantial evidence when they contain known errors or rely on facts that are no longer germane, inadequate medical histories or examinations, or incorrect legal theories. Likewise, a medical or vocational opinion cannot support the Appeals Board's findings if it rests on surmise, speculation, conjecture, or guesswork. (Hegglin v. Workmen's Comp. Appeals Bd. (1971) 4 Cal.3d 162, 169 [36 Cal.Comp.Cases 93].) Accordingly, the Appeals Board may reweigh the evidence and reach a decision different from the WCJ's determination when other

Vigil v. County of Kern (2024) 89 Cal.Comp.Cases 686 (en banc)

An employee must present evidence explaining the specific impact the impairments have upon their ADLs to justify departing from the CVC table.

Applied to reject Dr. Goldstein's and Dr. Sussman's opinions for lack of ADL-specific explanation in impairment aggregation.

From the decision · page 14Here, in evaluating the permanent disability rating methodology, PQME Dr. Goldstein's conclusion that adding rather than the CVC to aggregate the cervical spine and left shoulder impairments is more accurate fails to constitute substantial medical evidence. Under Vigil, an evaluating physician may rebut the CVC only by articulating how the rated body parts affect separate and distinct ADLs or how overlapping ADLs result in an amplified overall functional impact. An employee must present evidence explaining the specific impact the impairments have upon their ADLs to justify departing from the CVC table. Unfortunately, PQME Dr. Goldstein merely posits a "synergistic effect" between the cervical spine and the left shoulder to justify adding the impairments to reach 35% WPI. However, this conclusory assertion rests on guesswork and fails to explain explicitly the supporting reasoning to constitute substantial evidence. Because PQME Dr. Goldstein fails to detail the specific impact upon applicant's ADLs or document the functional absence of overlap required to rebut the schedule, his methodology does not comport with the evidentiary standards we require under Vigil.

Lab. Code §§ 4663(a), 4664(a); Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 611, 621 (en banc); Benson v. Permanente Med. Group (2007) 72 Cal.Comp.Cases 1620, 1622 (en banc)

A physician must determine apportionment based on causation, and must explain the 'how and why' of their apportionment opinion, considering all potential causes of disability.

Applied to reject Dr. Sussman's apportionment opinion as speculative and lacking adequate reasoning.

From the decision · page 16A physician must determine apportionment based on causation, because an employer is liable solely for the portion of permanent disability directly attributable to an 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 (2005) 70 Cal.Comp.Cases 604, 611 (Appeals Board en banc) (Escobedo).) 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 constitute reasonable medical probability, must not be speculative, rely on pertinent facts and/or an adequate examination and history, and must set forth the reasoning in support of the conclusions. (Id. at p.621.) That is, a physician must explain the "howand why" of their apportionment opinion and consider all potential causes of disability, whether from a current, prior or subsequent industrial or nonindustrial injury or condition. (Ibid.; Benson v. Permanente Med. Group (2007) 72Cal.Comp.Cases 1620, 1622 (Appeals Board en banc).)

Applicant's credible testimony regarding her pain, limitations, and context of volunteer activities was unrefuted and supported the finding of 100% disability.

From the decision · page 19Tincher, whose opinion defendant relied upon, expressly conceded that the mundane activities captured on film, such as driving, walking, and carrying light items, remained entirely consistent with the physical limitations established by the medical record. Moreover, applicant provided credible, unrefuted testimony contextualizing her limited involvement at the haunted house as a self-paced, non-physical endeavor that she abandoned whenever her pain or anxiety escalated. Because the sub rosa video merely corroborated the existing medical consensus rather than contradicting it, the WCJ's failure to author a granular summary of the video is, at most, a harmless procedural oversight that does not dilute the substantial evidence supporting the 100% permanent disability award. Accordingly, we affirm the WCJ's decision.

Sub rosa video surveillance was reviewed by medical evaluators and found consistent with applicant's reported limitations, not contradicting medical consensus.

From the decision · page 19Tincher, whose opinion defendant relied upon, expressly conceded that the mundane activities captured on film, such as driving, walking, and carrying light items, remained entirely consistent with the physical limitations established by the medical record. Moreover, applicant provided credible, unrefuted testimony contextualizing her limited involvement at the haunted house as a self-paced, non-physical endeavor that she abandoned whenever her pain or anxiety escalated. Because the sub rosa video merely corroborated the existing medical consensus rather than contradicting it, the WCJ's failure to author a granular summary of the video is, at most, a harmless procedural oversight that does not dilute the substantial evidence supporting the 100% permanent disability award. Accordingly, we affirm the WCJ's decision.