Hickman v. County of Los Angeles, 092001 CAWC, ADJ11182584

• Case Date: September 20, 2001
• Court: California

RYAN HICKMAN, Applicant v. COUNTY OF LOS ANGELES, Permissibly Self-Insured, Administered By SEDGWICK CLAIMS MANAGEMENT SERVICES, INC., Defendant No. ADJ11182584 California Workers Compensation Decisions Workers’ Compensation Appeals Board State of California September 20, 2021          Pomona District Office          OPINION AND ORDER DENYING PETITION FOR RECONSIDERATION           CRAIG SNELLINGS, COMMISSIONER.          Defendant seeks reconsideration of a workers’ compensation administrative law judge (WCJ) Findings and Award of July 6, 2021, wherein it was found that, while employed on December 1, 2017 as a probation officer, applicant sustained industrial injury to his right lower extremity and right hip, causing temporary disability from December 29, 2017 to October 31, 2018, permanent disability of 38%, and the need for further medical treatment. In finding permanent disability of 38%, the WCJ found that defendant did not carry its burden of showing that apportionment of permanent disability was appropriate in this matter.          Defendant contends that the WCJ erred in not finding apportionment of permanent disability as outlined by agreed medical evaluator orthopedist Chester A. Hasday, M.D. We have received an Answer from the applicant, and the WCJ has filed a Report and Recommendation on Petition for Reconsideration (Report).          For the reasons stated by the WCJ in the Report, which we quote below, and we adopt and incorporate, except as discussed below, we will deny defendant’s Petition. While it is now well established that one may properly apportion to pathology and asymptomatic prior conditions (see, e.g. Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 617 [Appeals Bd. en banc]), an apportionment opinion must still constitute substantial medical evidence. As we explained in Escobedo:

[A] medical report is not substantial evidence unless it sets forth the reasoning behind the physician's opinion, not merely his or her conclusions. [Citations.] Moreover, in the context of apportionment determinations, the medical opinion must disclose familiarity with the concepts of apportionment, describe in detail the exact nature of the apportionable disability, and set forth the basis for the opinion, so that the Board can determine whether the physician is properly apportioning under correct legal principles. [Citations.]

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For example, if a physician opines that approximately 50% of an employee’s back disability is directly caused by the industrial injury, the physician must explain how and why the disability is causally related to the industrial injury (e.g., the industrial injury resulted in surgery which caused vulnerability that necessitates certain restrictions) and how and why the injury is responsible for approximately 50% of the disability. And, if a physician opines that 50% of an employee’s back disability is caused by degenerative disc disease, the physician must explain the nature of the degenerative disc disease, how and why it is causing permanent disability at the time of the evaluation, and how and why it is responsible for approximately 50% of the disability.

(Escobedo, 70 Cal.Comp.Cases at p. 621.)          We disagree with the WCJ’s statement that Dr. Hasday “did not provide any medical evidence to show that applicant’s femur had … been weakened by the radiation treatment.” (Report at p. 3.) Applicant’s surgeon Nicholas Bernthal, M.D. did diagnose “pathologic fracture … secondary to radiation” (November 5, 2018 report at p. 13), computerized tomography showed “diffuse osteopenia” (July 17, 2019 report at p. 7), and Dr. Hasday’s expert opinion of course constitutes evidence. However, while asymptomatic conditions and pathology are now bases for apportionment, Dr. Hasday did not sufficiently explain...