What the panel ordered
Decision after reconsideration affirms the WCJ's findings except amends the apportionment of psychiatric disability, increasing permanent disability rating to 71%.
Petition for reconsideration filed by applicant, decision after reconsideration issued by the Appeals Board affirming in part and amending the WCJ's findings.
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.
Dr. Petrakis's opinion on apportionment of psychiatric disability is not substantial evidence because it relied on an incorrect premise that worry related to the industrial injury can be a basis for non-industrial apportionment.
From the decision · page 2However, we find merit in applicant's contention that defendant failed to meet its burden of proving apportionment of the psychiatric permanent disability. (Kopping v. Workers' Comp. Appeals Bd. (2006) 142 Cal.App.4th 1099, 1114 [71 Cal.Comp.Cases 1229].) For the reasons discussed below, we conclude that Dr. Petrakis's opinion on apportionment of the psychiatric disability is not substantial evidence. Without apportionment of the psychiatric disability, applicant is entitled to a permanent disability award of 71 percent. We will amend the WCJ's decision accordingly.
Without apportionment of psychiatric disability, applicant is entitled to a permanent disability award of 71 percent based on combined orthopedic and psychiatric ratings.
From the decision · page 2However, we find merit in applicant's contention that defendant failed to meet its burden of proving apportionment of the psychiatric permanent disability. (Kopping v. Workers' Comp. Appeals Bd. (2006) 142 Cal.App.4th 1099, 1114 [71 Cal.Comp.Cases 1229].) For the reasons discussed below, we conclude that Dr. Petrakis's opinion on apportionment of the psychiatric disability is not substantial evidence. Without apportionment of the psychiatric disability, applicant is entitled to a permanent disability award of 71 percent. We will amend the WCJ's decision accordingly.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Dr. Petrakis relied on applicant's worry about his wife's health to apportion psychiatric disability.
Favours Applicant prevailed
This worry was related to the effects of the industrial injury, making the apportionment opinion legally incorrect and not substantial evidence.
From the decision · page 3In this case, we are not persuaded that in relying upon applicant's worry about his wife's health to apportion psychiatric disability, Dr. Petrakis described in detail the exact nature of the apportionable disability. Applicant's worry evidently flows from his dependence on his wife and family to help him cope with the effects of his low back disability. In that case, applicant's worry is related to the effects of the industrial injury. Considering Dr. Petrakis's opinion in this context, it is apparent the doctor relied upon the incorrect premise that an aspect of an injured employee's disability that has its source in the industrial injury is a legal basis for non-industrial apportionment. As Dr. Petrakis relied upon a faulty premise, his medical opinion on apportionment is not substantial evidence. (Hegglin v. Workers' Comp. Appeals Bd. (1971) 4 Cal.3d 162, 169 [36 Cal.Comp.Cases 93].)
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.
Found applicant permanent and stationary as of 02/12/2013 with lumbar intervertebral disc protrusion and failed back surgery syndrome; opined permanent disability and apportionment for low back injury.
Relied upon by the WCJ and Appeals Board for orthopedic injury permanent disability and apportionment.
From the decision · page 2medical opinion of Dr. Conrad, and we will affirm the WCJ's finding that the orthopedic injury to applicant's low back caused permanent disability of 48 percent after apportionment.
Opined 10 percent non-industrial apportionment of psychiatric disability based on applicant's worry about his wife's health, which was rejected as not substantial evidence.
Opinion rejected because it relied on an incorrect legal premise that worry related to industrial injury effects can be non-industrial apportionment.
From the decision · page 2However, we find merit in applicant's contention that defendant failed to meet its burden of proving apportionment of the psychiatric permanent disability. (Kopping v. Workers' Comp. Appeals Bd. (2006) 142 Cal.App.4th 1099, 1114 [71 Cal.Comp.Cases 1229].) For the reasons discussed below, we conclude that Dr. Petrakis's opinion on apportionment of the psychiatric disability is not substantial evidence. Without apportionment of the psychiatric disability, applicant is entitled to a permanent disability award of 71 percent. We will amend the WCJ's decision accordingly.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 621 (en banc)
Medical opinion must be framed in terms of reasonable medical probability, not speculative, based on pertinent facts and adequate examination, and must set forth reasoning to be substantial evidence on apportionment.
Applied to reject Dr. Petrakis's opinion on psychiatric apportionment as not substantial evidence.
From the decision · page 3We disagree that Dr. Petrakis's medical opinion is substantial evidence on the issue of apportionment. In Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 621 (en banc), the Board described the necessary qualities for a physician's opinion to be accepted as substantial evidence of apportionment:
E.L. Yeager Construction v. Workers' Comp. Appeals Bd. (Gatten) (2006) 145 Cal. App. 4th 922, 928 [71 Cal.Comp.Cases 1687]
A medical opinion is not substantial evidence if based on incorrect legal theories or speculation; it must set forth reasoning behind conclusions.
Applied to evaluate the apportionment opinions of Dr. Conrad and Dr. Petrakis and reject unsupported claims.
From the decision · page 20Applicant claims that that I did not specifically address his claim that the opinions of Dr. Conrad and Dr. Petrakis do not support a finding of apportionment. Applicant's claim lacks merit. In order to constitute substantial medical evidence, a medical opinion must be predicated on reasonable medical probability. Also, 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. Further, a medical report is not substantial evidence unless it sets forth the reasoning behind the physician's opinion, not merely his or her conclusions. (E.L. Yeager Construction v. Workers' Comp. Appeals Bd. (Gatten) (2006) 145 Cal. App. 4th 922, 928 [71 Cal Comp Cases 1687].) Applicant does not allege that the apportionment opinions of Dr. Conrad or Dr. Petrakis are based on facts no longer germane, on inadequate medical histories or examinations, on incorrect legal theories, or on surmise, speculation, conjecture, or guess. Applicant does claim that Dr. Conrad and Dr. Petrakis do not provide the basis of their opinions of apportionment. That claim is not supported by the record.
What proof carried it
The evidence the panel weighed, by kind.
Applicant's worry about his wife's health was considered by Dr. Petrakis as a basis for apportionment but was found to be related to the industrial injury effects and thus not a valid basis for non-industrial apportionment.
From the decision · page 3In this case, we are not persuaded that in relying upon applicant's worry about his wife's health to apportion psychiatric disability, Dr. Petrakis described in detail the exact nature of the apportionable disability. Applicant's worry evidently flows from his dependence on his wife and family to help him cope with the effects of his low back disability. In that case, applicant's worry is related to the effects of the industrial injury. Considering Dr. Petrakis's opinion in this context, it is apparent the doctor relied upon the incorrect premise that an aspect of an injured employee's disability that has its source in the industrial injury is a legal basis for non-industrial apportionment. As Dr. Petrakis relied upon a faulty premise, his medical opinion on apportionment is not substantial evidence. (Hegglin v. Workers' Comp. Appeals Bd. (1971) 4 Cal.3d 162, 169 [36 Cal.Comp.Cases 93].)
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