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Rigoberto Gonzalez claimed injury to his heart, upper extremities, spine, and lower extremities while employed by Team Infinity as a service technician/mechanic during the period from August 28, 2001, through March 25, 2010.

The parties agreed to use Steven Nagelberg, M.D., an orthopedist and Edward J. O’Neill, M.D., and internist as AMEs in their respective fields, and Gonzalez was additionally evaluated by a rheumatology qualified medical examiner (QME) Seymour Levine, M.D.

As to the issue of apportionment, Dr. Nagelberg stated that 100% of the cervical and lumbar spine impairment was caused by the cumulative work injury, that 50% of the right wrist and bi-lateral knee impairment was due to the cumulative work injury, and 50% of the right wrist and bi-lateral knee impairment was due to a pre-existing non-industrial arthritic condition.

Dr. O’Neill stated that the hypertension caused 49% WPI, the coronary artery disease caused 20% WPI, the upper GI/GERD caused 7% WPI, and that applicant had 7% WPI as a result of his obstructive sleep apnea. He later said he would apportion the hypertension in the same fashion as the arthritic condition; namely, 75% non-occupational and 25% occupationally related. Regarding the coronary artery disease and the obstructive sleep apnea is that neither of those conditions are occupationally related and any impairment or disability is non-occupationally related with no apportionment to occupational factors.

Gonzalez had a “Facetime meeting” with Vocational Rehabilitation Counselor Paul Broadus. Mr. Broadus concluded that applicant was “not amenable to rehabilitation, solely due to his industrial impairments” and that he no longer had “the ability to return to work in the open labor market.”

After commenting on the apportionment given by the medical evaluators, he concluded that “Mr. Gonzalez is in a rather unusual situation in that none of his impairments by themselves preclude him from working in the open labor market. However, he has so many separate issues that when combined, the industrial portions alone make him not amenable to rehabilitation.  Conversely, if he only had the non-industrial impairments, these would be labor-disabling and preclude him from working by themselves.

At the October 13, 2021 trial the parties stipulated that applicant sustained injury AOE/COE to his heart, upper extremits, spine, and lower extremities; that “Applicant asserts he is 100 percent permanently totally disabled” and “Defendant asserts that, Applicant’s permanent disability is 86%;”

The WCJ found that the injuries caused 100% permanent disability. The employer’s Petition of Reconsideration was granted, and the award was rescinded in the panel decision of Gonzalez v Team Infinity -ADJ7263865 (July 2023).

The issue on Reconsideration was apportionment of permanent disability. On this issue the WCAB panel noted that pursuant to Labor Code 4663 “The Appeals Board must rely on expert medical opinion in determining apportionment; apportionment is a medical determination, and a non-medical opinion is not substantial evidence.”

The WCAB panel then noted its recent en banc decision on this issue stating “Accordingly, ‘vocational apportionment’ offered by a non-physician is not a statutorily authorized form of apportionment. In addition, apportionment determinations that deviate from the mandatory standards described in section 4663(c) are not a valid basis upon which to determine permanent disability. (Grace Nunes v. State of California, Dept. of Motor Vehicles (2023) Cal.Comp.Cases … [2023 Cal.Wrk.Comp. LEXIS … [ADJ8210063; ADJ8621818] (Appeals Board en banc)”

Also, Dr. Nagelberg and Dr. O’Neill did not review the VR reports in this case.

“It appears that notwithstanding the apportionment described by Drs. Nagelberg and O’Neill, it is Mr. Broadus’ opinion that applicant is 100% disabled as a result of his industrial cumulative injury. Clearly, his opinion is not consistent with the statutory and case law discussed above.