By Jeff Stander

The physician must employ the correct legal theory in expressing opinions concerning causation as well as nature, duration and extent of disability in order for the conclusion to be deemed substantial evidence upon which the Court can predicate its decision.  In Ferreira v WCAB (1974) 39 CCC 248, the employee sustained several left inguinal hernias during the course of his employment, all of which incidents were accepted by the employer and medical care provided.  After the last operation, Mr. Ferreira sustained a recurrent hernia while installing a battery in his car at home.  The examining physician, after reviewing the records and conducting an examination, concluded that “this condition is not industrial in origin and not the responsibility of the employer and its insurance carrier.”  The Trial Court relied on this opinion to deny benefits.  The District Court of Appeal reversed, holding that the medical issue that needed to be addressed was whether the home related incident was a contributing cause to the overall disability and need for further medical treatment.  The examining physician never addressed this issue; instead, he merely offered a legal conclusion that the condition was not the responsibility of the employer.

The employee, in Ponce v Barrett Business Services, Inc. 2017 Cal. Wrk. Comp. P.D. LEXIS 175, sustained an injury to his left shoulder while employed by a prior employer and claimed that he injured his left wrist while working from Barrett.  The QME opined that the left wrist condition was a compensable consequence of the prior injury.  The Trial Court disregarded this opinion and found the existence of a subsequent injury.  This holding was upheld on appeal.  The physician’s opinion reflected a misunderstanding of the concepts of compensable consequence injury and cumulative trauma injury.

A physician’s misunderstanding of a legal theory and subsequent erroneous expression of same will render the resulting opinion to be deemed to not constitute substantial evidence.  In Huston v WCAB(1979) 44 CCC 798, the employee sustained several industrial injuries and was voluntarily provided Temporary Total Disability benefits.  However, he was evaluated by a physician six months prior to the termination of TTD benefits and opined that the condition would be deemed to have reached a Permanent and Stationary plateau if Mr. Huston had located employment.  The Trial Court relied upon this opinion to award the employer credit against its liability to furnish Permanent Partial Disability benefits based on the overpayment of TTD.  The District Court of Appeal reversed, holding that the physician employed an erroneous legal theory that the mere finding of a job for which Mr. Huston was not paid a salary would automatically convert the condition to P & S status.

The topic of apportionment causes many physicians to express an incorrect legal theory based on a misunderstanding of this important concept.  Labor Code Section 4663 provides that PD must be based on causation and that every medical report addressing PD must contain the physician’s opinion regarding this issue.  An example of where the physician did correctly apply the standard of apportionment is found in the case of E.L. Yeager Construction v WCAB (Gatten) (2006) 71 CCC 1687.  Mr. Gatten, for a 10 year period prior to sustaining an admitted spinal industrial injury, experienced occasional back pain which necessitated various chiropractic treatments.  The IME apportioned the overall 74% PD 20 % to non-industrial causes.  (The significance of that apportionment was that it relieved the employer of furnishing a life pension.)  He defined the nature of the non-industrial cause (chronic degenerative disease), explained the manner by which it was present in Mr. Gatten, and noted the diagnostic studies which corroborated his conclusion.  The Trial Court disregarded this opinion and awarded the employee PD without non-industrial apportionment.  On appeal, the Appellate Court agreed with the employer’s contention that the IME had adequately and accurately expressed and applied the correct legal theory.  It was noted that the current version of Labor Code section 4663 permits apportionment in the absence of prior impairment or performance of modified duties and that the medical opinion could base apportionment of prior diseases and symptoms.


Because the Trial Court has the ultimate and exclusive authority to determine the viability of the evidence necessary to sustain Findings of Fact and the issuance of the final decision, medical reports must contain an explanation underlying the physician’s opinion in order for the Judge to assess the weight and the persuasive force of the expert’s conclusion.  Such a situation was presented to the Court in Mejia v WCAB (2013) 78 CCC 1169 (writ denied).  Mr. Mejia claimed injury AOE/COE to his heart, cardiovascular system, neurologic system and brain.  His treating physician stated that the debilitating condition was caused by Mr. Mejia’s performance of strenuous duties in the heat.  The QME, however, based on his exam and review of data, opined that the condition was not industrially related.  He explained that Mr. Mejia was performing duties that were not physically arduous at which time the temperature was 61 degrees, and, most importantly, that the employee, three years prior to the incident, had been diagnosed with Chagas disease, which causes an enlargement of the heart muscle, resulting in arrhythmias, cardiac arrest and sudden death, without any external intervention.  The Trial Court selected the opinion of treating physician to find industrial injury and award disability benefits and medical care. The Trial Judge’s conclusion that he was empowered to choose among conflicting opinions and that the conclusion of the treating physician was more persuasive was overturned on appeal because only the QME fully explained the foundation underlying his opinion based on all relevant facts.

Similarly, in Amaya v WCAB (2012) 77 CCC 404 (writ denied), the employee claimed to have sustained injury AOE/COE in the form of a stroke which effected his upper and lower extremities, spine and internal organs.  Mr. Amaya was evaluated by a QME, who noted the presence of pre-existing hypertension, high cholesterol, and diabetes but stated that work activities were responsible for 20% of the cause of the injury.  Because the physician never explained his opinion, the Court disregarded same and held that Mr. Amaya did not sustain an industrial injury.

Perhaps the area of workers’ compensation law which has generated the most litigation regarding whether the physician has adequately explained the opinion is apportionment.  Clearly, any opinion regarding apportionment cannot be sustained when it merely sets forth an arbitrary percentage which the physician deems to be “fair.”  (Callahan v WCAB (1978) 43 CCC 1097)

Given the need for a physician to adequately explain the apportionment opinion, the Court, inEscobedo v Marshalls (2005) 70 CCC 604 set forth a simple, not easy, formula to be followed by the medical expert:  “The physician must explain how and why the disability is causally related to the industrial injury. . .and how and why it is responsible for the “particular percentage of disability and must explain the nature . . . of the non-industrial condition. . . and how and why it is causing Permanent Disability at the time of the evaluation and how and why it is responsible” for the particular percentage of disability.  In Escobedo, the Court held that the QME sufficiently explained his apportionment opinion.


Where the physician is speaking out of both sides of his/her mouth, the medical opinion will not be deemed to constitute substantial evidence.  In Colgrove v Santa Rosa Press Democrat 2015 Cal. Wrk. Comp. P.D. LEXIS 250, the employee sustained an admitted industrial trauma to his back and claimed that, as a compensable consequence, also suffered a hernia.  Mr. Colgrove was evaluated by a QME who issued several reports and was cross-examined via deposition.  The QME, at various points, opined that the hernia was caused by constipation attributable to the side effects of the medication that the patient was ingesting in connection with the back pain; at other points in his reports, he admitted that he didn’t have any medical evidence to support this conclusion.  The Trial Court’s decision finding the hernia condition compensable was held untenable by the Appellate Court given the physician’s inconsistency and equivocation.

Similarly, in Rubio v General Atomics 2013 Cal. Wrk. Comp. P.D. LEXIS 449, the employee was awarded 25% P.D. in connection with an admitted left shoulder injury based on the opinion of the treating physician.  Defendant’s appeal was granted.  The Appellate Court noted that the treating physician had issued several reports and provided deposition testimony in which he expressed varying opinions regarding the existence of shoulder instability and set forth several factors of impairment based on the existence and non-existence of the alleged shoulder instability.  Given these inconsistencies, his opinion regarding the issue of extent of impairment could not be deemed to constitute substantial evidence.

The Legislature did not, however, intend for the expert witness to operate in a straightjacket.  The  physician can modify the opinion as long as the reason for the change is set forth.  This occurred in the case of Nash v WCAB (1997) 62 CCC 525.  There, the Appellate Court held that the Trial Judge’s reliance on the opinion of the cardiovascular surgeon, despite the fact that the practitioner modified his opinion because the expert expressly stated that the opinion needed to be revised based on his subsequent review of additional records.  A different result occurred in LAUSD v WCAB (Nordhof)(1997) 62 CCC 525 (writ denied).  In that matter, the appeal was denied on the ground that the physician’s opinion advanced by the employer did not contain an explanation of the modification.


R. Jeffrey Stander is Of Counsel to Stander Reubens Thomas Kinsey. Prior to joining the firm in 1982, he was associated with law firms exclusively handling workers' compensation and general civil matters, and acting as in-house counsel for Western Employers' Insurance Company. Mr. Stander is a Certified Specialist in Workers' Compensation law, a member of the Assessment Committee of the Lawyers’ Assistance Program for the State Bar of California, and has been an instructor for the Insurance Educational Association. He received his Bachelor’s degree from the University of Southern California and his Juris Doctor degree from the University of San Fernando Valley College of Law.  (


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