ADJ9081819 · July 21, 2025

The surgery was the sole cause of the current disability and no apportionment is merited under current law, as supported by the medical opinions and legal precedent.

From the decision · page 72. The Determination Regarding Apportionment of Permanent Disability Is Correctly Based on the Cause of Disability.

The anterior lumbar interbody cage fusion surgery is the sole cause of the complete loss of motion in the spinal segment causing disability.

Favours Applicant prevailed

This fact establishes that the surgery caused the disability, negating apportionment to prior injuries.

From the decision · page 7The instant case is essentially on all fours with Hikida. Both the PQME and the primary treating physician agreed that the anterior lumbar interbody cage fusion surgery is the sole cause for the complete loss of motion in the spinal segment. There is no medical evidence the small disc bulges present in 2011 or 2013 contributed in any way to the poor result of the fusion surgery.

PQME Dr. Steiger considered the surgery unnecessary and stated it worsened the applicant's condition.

Favours Applicant prevailed

Despite this opinion, the law holds the employer responsible for disability caused by authorized medical treatment, supporting no apportionment.

From the decision · page 66. At cross-examination, Dr. Steiger flatly stated that he considered the surgery unnecessary and had recommended against it in a report prior to the surgery because the applicant had only a 3 mm disc bulge, supra at P.11, Exhibit AA Cross-examination of Dr. Steiger, 10-31-2018. He also stated that the applicant's condition was made worse by the industrial surgery, Exhibit AA Cross-Examination of Dr. Steiger, 10-31-2018 P.12-13.

Found impairment due to interbody cage fusion surgery at L5-S1 causing lumbar spine DRE Category IV with 22% whole person impairment; opined 10% apportionment to degenerative changes, 45% to current injury, 45% to 2011 injury but considered surgery unnecessary and worsening condition due to surgery.

The opinion on apportionment did not comply with current law as the surgery was the sole cause of disability.

From the decision · page 51. Following trial, the undersigned found injury to the lumbar spine, thoracic spine and right hip. No permanent disability was found to the right hip or thoracic spine. The Findings and Award included a final rating of 38% permanent disability to the lumbar spine with no apportionment. 2. The undersigned found the Orthopedic QME Dr. Ralph Steiger more credible and persuasive. Dr. Steiger found impairment due specifically to the interbody cage fusion at L5-S1 surgery post injury, which he determined merited Lumbar Spine DRE Category IV with 22 whole person impairment.

Surgeon for interbody cage fusion at L5-S1; found permanent disability based on DRE Category IV due to loss of motion segment integrity following surgical fusion.

Agreed surgery caused the disability and supported no apportionment.

From the decision · page 64. Dr. Michael Schiffman was the designated primary treating physician as well as the surgeon for the interbody cage fusion at L5-S1 post-injury, which occurred on 10- 23-2017. The surgery was authorized by defendants. Dr. Schiffman also found permanent disability based on DRE Category IV: "He meets the criteria for this category based on loss of motion segment integrity following surgical fusion." Exhibit 43, Schiffman Report 4-23-24 P.4-5.

Orthopedic AME report rated prior injury at 19% permanent disability; prior injury settled by Compromise and Release.

Hikida v. WCAB (2017) 12 Cal.App.5th 1249

Apportionment must be based on the cause of disability, not the cause of injury.

Applied to reject defendant's apportionment argument as the surgery caused the disability.

From the decision · page 72. The Determination Regarding Apportionment of Permanent Disability Is Correctly Based on the Cause of Disability.

Fitzpatrick v. Fidelity & Casualty Co. (1936) 7 Cal.2d 230

Employer is responsible for medical treatment and consequences without apportionment.

Supports no apportionment for disability caused by medical treatment.

From the decision · page 7Apportionment must be based on the cause of disability, not the cause of injury. Hikida v. WCAB, (2017) 12 Cal.App.5th 1249. An employee is entitled to compensation for a new or aggravated injury which results from the medical or surgical treatment of an industrial injury. Fitzpatrick v. Fidelity & Casualty Co. (1936) 7 Cal.2d 230. The Court of Appeals stated:

County of Santa Clara v. WCAB (2020) 49 Cal.App.5th 605

No apportionment for new compensable injury resulting entirely from medical treatment.

Applied to hold surgery was sole cause of disability, rejecting apportionment.

From the decision · page 7"A new compensable consequence injury that is entirely the result of medical treatment which then led entirely to the injured worker's disability should not be apportioned, County of Santa Clara v. Workers' Comp. Appeals Bd. (Justice) (2020) 49 Cal.App.5th 605.

Credibility of Dr. Ralph Steiger's testimony and cross-examination

From the decision · page 8It is noteworthy that Petitioner refers to the testimony of Dr. Steiger in his cross- examination as stating the worsening of the applicant's condition is due in part to the surgery. This omits an important part of the Doctor's opinion. In the very next question, he is asked what else contributed to his back condition. The doctor answers: "The fact is that not enough time has elapsed to decide whether he'll get further recovery and be enabled to do any kind of work which I somewhat doubt." Joint Exhibit AA Cross- Examination 10-31-2018 P.13, Lines 13 to 22. The questioner then changes the subject. The doctor never actually describes anything else that contributed to the worsening, so the defendant fails in their burden of proof that the surgery was not the sole cause of the disability.