Karl Swanier, Applicant v. Western Star Transportation, Ullico Casualty Company, Defendants

Transcription

1 Karl Swanier, Applicant v. Western Star Transportation, Ullico Casualty Company, Defendants W.C.A.B. No. ADJ WCJ Gregory E. Palmberg (MDR); WCAB Panel: Commissioners Lowe, Brass Sweeney Workers' Compensation Appeals Board (Panel Decision) 2013 Cal. Wrk. Comp. P.D. LEXIS 29 Opinion Filed January 8, 2013 NOTICE: [*1] CAUTION: This decision has not been designated a "significant panel decision" by the Workers' Compensation Appeals Board. Practitioners should proceed with caution when citing to this panel decision and should also verify the subsequent history of the decision. WCAB panel decisions are citeable authority, particularly on issues of contemporaneous administrative construction of statutory language [see Griffith v. WCAB (1989) 209 Cal. App. 3d 1260, 1264, fn. 2, 54 Cal. Comp. Cases 145]. However, WCAB panel decisions are not binding precedent, as are en banc decisions, on all other Appeals Board panels and workers' compensation judges [see Gee v. Workers' Comp. Appeals Bd. (2002) 96 Cal. App. 4th 1418, 1425 fn. 6, 67 Cal. Comp. Cases 236]. While WCAB panel decisions are not binding, the WCAB will consider these decisions to the extent that it finds their reasoning persuasive [see Guitron v. Santa Fe Extruders (2011) 76 Cal. Comp. Cases 228, fn. 7 (Appeals Board En Banc Opinion)]. LexisNexis editorial consultants have deemed this panel decision noteworthy because it does one or more of the following: (1) Establishes a new rule of law, applies an existing rule [*2] to a set of facts significantly different from those stated in other decisions, or modifies, or criticizes with reasons given, an existing rule; (2) Resolves or creates an apparent conflict in the law; (3) Involves a legal issue of continuing public interest; (4) Makes a significant contribution to legal literature by reviewing either the development of workers' compensation law or the legislative, regulatory, or judicial history of a constitution, statute, regulation, or other written law; and/or (5) Makes a contribution to the body of law available to attorneys, claims personnel, judges, the Board, and others seeking to understand the workers' compensation law of California. DISPOSITION: Defendant's Petition for Reconsideration of the October 16, 2012 Amended Findings and Award is granted, the Amended Findings and Award is affirmed, except that Finding of Fact 2 is amended, and the matter is returned to the WCJ for further proceedings and a new decision. CORE TERMS: knee, disability, tendon, apportionment, patellar, reconsideration, substantial evidence, ankle, patella, rating, residual, film, industrial injury, overpayment, quadriceps, distal, pertinent part, elbow, rupture, tear, medical opinion, arthrosis, causation, patellofemoral, basketball, symptoms, lumbar, spine, non-industrial, apportioned CALIFORNIA COMPENSATION CASES HEADNOTES Permanent Disability-Apportionment-WCAB, reversing WCJ, held that opinion of Agreed Medical Examiner constituted substantial evidence to support apportionment under Labor Code 4663(c) [*3] and 4664(a) of applicant's permanent disability following 11/2/2010 injuries to his left elbow, low back, left

2 knee and left ankle, when Agreed Medical Examiner satisfactorily explained his finding of apportionment of applicant's left knee disability in light of his clinical judgment and experience based on findings upon examination of applicant's knee, his review of MRI films, and history of applicant's previous injury. [See generally Hanna, Cal. Law of Emp. Inj. and Workers' Comp. 2d 8.05[1]-[3], 8.06[5][a], [d], 8.07[2][a]-[c], [d][ii], [iii]; The Lawyer's Guide to the AMA Guides and California Workers' Compensation, Ch. 9.] OPINION BY: Commissioner Deidra E. Lowe OPINION OPINION AND ORDER GRANTING PETITION FOR RECONSIDERATION AND DECISION AFTER RECONSIDERATION Defendants Western Star Transportation and Ullico Casualty Company (collectively, defendant) seek reconsideration of the Amended Findings and Award (F&A) issued by a workers' compensation administrative law judge (WCJ) on October 16, In that F&A, the WCJ found in pertinent part that defendant was not entitled to a credit for overpayment of temporary total disability [*4] indemnity (Finding of Fact, 4), and that applicant Karl Swanier (applicant) sustained injury to his left elbow, low back, left knee and left ankle and was entitled to permanent disability indemnity (Findings of Fact, 1 and 2). Defendant contends that the WCJ should have allowed a credit for defendant's overpayment and that as required by Labor Code 1 sections 4664, subdivision (a) and 4663, subdivision (c), 2 the WCJ should have apportioned applicant's permanent disability in his left knee based on the opinion of the Agreed Medical Evaluator (AME). FOOTNOTES 1 Unless otherwise stated, all statutory references are to the Labor Code. 2 Hereafter section 4664(a) and section 4663(c). We did not receive an answer from applicant. We received a Report and Recommendation on Reconsideration (Report) from the WCJ in response to the petition, which [*5] recommends denial of the petition for reconsideration. We have reviewed the record and considered the allegations of the petition for reconsideration and the contents of the Report. Based on our review of the record, for the reasons stated in the Report of the WCJ, we adopt and incorporate the Report as to the issue of the credit (Finding of Fact, 4). Based on our review of the record and for the reasons discussed below, we do not adopt and incorporate the Report as to the issue of permanent disability (Report, Section IV, pp. 3 5), and we will grant defendant's petition in order to amend the F&A to defer the issue of applicant's permanent disability (Finding of Fact 2), otherwise affirm the F&A, and return the matter to the WCJ for further proceedings.

3 FACTS Applicant was employed by defendant as a truck driver, loader / unloader and sustained injury to his left elbow, low back, left knee, and left ankle on November 2, Applicant was evaluated by orthopedic surgeon Harry Marinow, M.D., as an AME. Dr. Marinow examined applicant on October 4, 2011 and issued a report. (Exhibit CC, Report of Harry Marinow, M.D., October 4, 2011). Dr. Marinow also issued two [*6] supplemental reports on December 5, 2011 and April 20, (Exhibit BB, Report of Harry Marinow, M.D., December 5, 2011; Exhibit AA, Report of Harry Marinow, M.D., April 20, 2012.) On October 4, 2011, applicant told Dr. Marinow that he had injured his left knee in 1991 while playing basketball at home. (Exhibit CC, p. 5.) Applicant reported that he had three to four months of treatment, including surgery, for that injury and missed approximately three months of work and that "he made a complete and full recovery with no residual symptoms." (Exhibit CC, p. 5.) Dr. Marinow took x-rays during the examination, including three views of applicant's left knee. (Exhibit CC, p. 11.) Dr. Marinow stated that the views of the left knee "reveal calcification within the patellar tendon with past history of patellar tendon rupture (from playing basketball 1991) with surgical repair. There is peripatellar calcification from prior trauma (1991). (Knee joint cartilage space is 5 mm; patellofemoral cartilage space is 5 mm)." (Exhibit CC, p. 11.) In pertinent part, Dr. Marinow diagnosed applicant with "left knee chondromalacia patella symptoms." (Exhibit CC, p. 13.) With respect to the objective [*7] factors of disability, Dr. Marinow noted applicant's prior patellar tendon rupture with a surgical repair, and "slight tenderness at the perimeter of the patella as well as the patellar tendon" and subpattellar crepitation with range of motion and referred to his x-ray findings. (Exhibit CC, p. 13.) In the October 4, 2011 report, Dr. Marinow found that applicant had reached Maximum Medical Improvement (MMI) and opined that applicant had an 8% Whole Person Impairment (WPI) for his lumbar spine, 2% WPI for his left knee with patellofemoral pain symptoms (Table 17 31, page 544, Chapter 17), 2% WPI for his left ankle, and 0% WPI for his left elbow, and a 3% WPI impairment for pain for "all of the aforementioned areas of injury" for a total 15% WPI. (Exhibit CC, p. 15.) With respect to apportionment, Dr. Marinow found that applicant's disability as to his lumbar spine, left ankle and left elbow were 100% industrially related. (Exhibit CC, p. 15.) As to applicant's left knee, Dr. Marinow noted that applicant had "a significant prior nonindustrially-related injury...in 1991 and sustained a rupture of his left knee patellar tendon that required surgical repair and he was off work for [*8] approximately three months for this injury which shows chronic posttraumatic residuals about the left knee patella and patellar tendon," and he apportioned 50% of applicant's left knee condition to the prior injury and referred to "chronic radiographic residuals of significant posttraumatic changes about his left knee patella and patellar tendon." (Exhibit CC, p. 15.) Although Dr. Marinow was given copies of medical records, he was not provided with copies of applicant's MRI films at that time, and he requested that he be provided with updated MRI studies. According to the MRI report by Joel Levine, M.D., of November 29, 2011, with respect to applicant's left knee, Dr. Levine opined that applicant had "(1) degenerative change of the anterior horn the lateral meniscus; (2) severe irregular thickening of the distal quadriceps tendon and the entire patella tendon consistent with advanced tendinopathy. Cannot exclude localized tendinitis/partial thickness tear of the distal quadriceps tendon; and, (3) patellofemoral arthrosis." (Exhibit DD, Report of Joel Levine, M.D., November 29, 2011.) He further concluded that:

4 "With respect to the patellar tendon, the most significant thickening [*9] is proximally and there is the suggestion of a small enthesophyte embedded in the proximal tendon along its posterior margin. This is seen in conjunction with a deformity of the inferior pole the patella [sic] and evidence of patellofemoral arthrosis. The findings may be related to previous trauma in this location and careful plain film correlation in the anterior compartment is strongly recommended. No acute fracture of the patella is identified. There is a blush of marrow 3 hyperintensity in the superior pole, most likely related to the distal quadriceps tendon pathology described above." (Exhibit DD, p. 2.) On December 5, 2011, Dr. Marinow issued a supplemental report after reviewing the MRI films. (Exhibit BB.) With respect to applicant's left knee, he opined that the films showed "irregularity in the distal quadriceps and throughout the entire patella localized distal quadriceps tendonitis. These findings would be consistent with [applicant]'s prior history of rupturing his left knee patellar tendon while playing basketball at home in There are no frank meniscus tears and no cruciate ligament tears noted." (Exhibit BB, p. 1.) Dr. Marinow concluded that after reviewing [*10] the MRI films, he had no change in his opinions. (Exhibit BB, pp. 1 2.) On April 20, 2012, Dr. Marinow issued a supplemental report commenting on applicant's treating physician's request for authorization for arthroscopic examination of the applicant's left knee with partial medial meniscectomy and chrondroplasty of patellofemoral joint. (Exhibit AA.) He noted that the films showed "some degenerative change within the anterior horn of the lateral meniscus with no evidence of a tear" and no tear in the medial meniscus. (Exhibit AA, p. 1.) As a result, in his opinion, arthroscopy would not be medically indicated. (Exhibit AA, p. 1.) He went on to opine that the "most important finding in the left knee MRI films was the advanced tendinopathy within the distal quadriceps tendon and the patellar tendon with localized tendinitis and partial thickness tear in the distal quadriceps tendon as [applicant had] a past history of rupturing his left knee patellar tendon" in (Exhibit AA, pp. 1 2.) The hearing took place on September 12, At hearing, the parties stipulated in pertinent part that applicant sustained injury to his left elbow, low back, left knee, and left ankle, [*11] and that the AME was Dr. Marinow and that applicant was permanent and stationary as found by Dr. Marinow on October 4, Among the issues were permanent disability and apportionment. 3 Applicant testified in pertinent part that he had read the April 20, 2012 report by Dr. Marinow (Exhibit AA) and that he disagreed with the finding of apportionment because he had no problems with his left knee before his industrial injury and was able to work and do his job duties, although he had some arthrosis. (Minutes of Hearing, Summary of Evidence (MOH), p. 4, lines ) At the conclusion of the hearing, the matter was to be responsibility." (Ashley v. Workers' Comp. Appeals Bd (1995) 37 Cal.App.4th 320 [60 Cal.Comp.Cases 683].) [*12] Hence, by the plain meaning of the statutes, it is causation to other factors, and then the permanent disability as a result that is apportioned. FOOTNOTES 3 In addition to the Joint Exhibits discussed above, applicant also submitted progress reports from July 12, 2011 to April 17, 2012, from his treating physician Allen S. Fonseca, M.D. (Exhibit 1.) Those reports do not contain any discussion of applicant's permanent

5 disability or apportionment. The WCJ's determination must be supported by substantial evidence. (Lab. Code, 5903, 5952, subd. (d); Lamb v. Workmen's Comp. Appeals Bd. (1974) 11 Cal.3d 274 [39 Cal.Comp.Cases 310]; Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312 [35 Cal.Comp.Cases 500]; LeVesque v. Workmen's Comp. Appeals Bd. (1970) 1 Cal.3d. 627 [35 Cal.Comp.Cases 16].) To be substantial evidence, expert medical opinion must be framed in terms of reasonable medical probability, be based on an accurate history and an examination, and must set forth reasoning to support the expert conclusions reached. (Yeager v. Workers' Comp. Appeals Bd. (Gotten) (2006) 145 Cal.App.4th 922, 928 [71 Cal.Comp.Cases 1687]; Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604 (Appeals [*13] Board en banc).) The AME has presumably been chosen by the parties because of the AME's expertise and neutrality. Therefore, the AME's opinion should ordinarily be followed unless there is good reason to find that opinion unpersuasive. (Power v Workers' Comp. Appeals Bd. (1986) 179 Cal.App.3d 775 [51 Cal.Comp.Cases 114].) In rendering an opinion, an AME must first determine causation of an applicant's injury and then if other causes of an applicant's disability from the injury exist, apportion between those industrial and non-industrial causes. (See Lab. Code, 4663, subd. (c), 4664, subd. (a); Benson v. Permanente Medical Group (2007) 72 Cal.Comp.Cases 1620 (Appeals Board en banc) (Benson); Kopping v. Workers' Comp. Appeals Bd. (2006) 142 Cal.App.4th 1099 [71 Cal.Comp.Cases 1229] (Kopping).) Here, the MRI reports document degenerative changes and arthrosis as a likely result of applicant's previous non-industrial injury. (Exhibit DD.) Applicant testified at hearing that although it was not symptomatic, [*14] he did have arthrosis in his left knee, and, we point out that applicant's ability to perform his job before his industrial injury is not the correct legal standard. In reviewing Dr. Marinow's reports, it appears that Dr. Marinow examined applicant, took a sufficient history from applicant, reviewed his medical records, and adequately explained his reasoning for his conclusions. Dr. Marinow discussed industrial causation, then determined applicant's permanent disability in his left knee, and then referred to the Disability Evaluation Unit (DEU) for rating, and the parties would then have the opportunity to object to the rating and request cross-examination of the disability evaluator. Subsequently, the WCJ issued rating instructions and instructed the evaluator to use 8% WPI for applicant's lumbar spine, 2% WPI for applicant's left knee and 2% WPI for applicant's left ankle with a 3% add-on for pain to applicant's left knee. There was no reference to apportionment in the instructions. The Formal Rating issued on October 1, 2012, recommending 28% permanent disability. The 3% WPI was added to the left knee. Neither party objected to the Rating or requested cross-examination of the [*15] disability evaluator. The WCJ issued the F&A on October 16, He found in pertinent part that applicant was entitled to permanent disability of 28%. In his Amended Opinion on Decision, the WCJ stated that the finding of percentage of permanent disability of 28% was based on the Formal Rating and that defendant did not meet its burden of proof so as to allow a finding of apportionment. On November 9, 2012, defendant filed its petition for reconsideration. Defendant alleged that the finding of 28% permanent disability was based on the DEU rating of 16% permanent disability to applicant's lumbar spine, 10% permanent disability to the left knee,

6 and 4% permanent disability to applicant's left ankle. Defendant contended in pertinent part that it had met its burden to show that 50% of applicant's permanent disability to his left knee was non-industrial based on the substantial evidence of the opinion of AME Dr. Marinow. DISCUSSION Section 4663 provides that permanent disability shall be based on causation, and that the reporting physician shall determine what percentage of applicant's permanent disability "was caused by the direct result of injury [AOE/COE] and [*16] what approximate percentage of the permanent disability was caused by other factors...including prior industrial injuries." (Lab. Code, 4663, subd. (c).) Section 4664(a), provides that: "The employer shall only be liable for the percentage of permanent disability directly causing by the injury arising out of and occurring in the course of employment." "Apportionment is the process employed... to segregate the residuals of an industrial injury from those attributable to other industrial injuries, or to nonindustrial factors, in order to fairly allocate the legal because he found that other causes of applicant's disability existed, apportioned between those industrial and non-industrial causes. Specifically, Dr. Marinow satisfactorily explained his finding of apportionment of applicant's disability in his left knee in light of his clinical judgment and experience, based on his findings upon his examination of applicant's left knee, his review of the MRI films, and the history of applicant's previous injury. Therefore, defendant appears to have met its burden based on the substantial evidence of Dr. Marinow to demonstrate that apportionment was [*17] appropriate. Accordingly, we amend the F&A to defer the issue of applicant's permanent disability and return the matter to the WCJ for a new finding on applicant's permanent disability. We note that Dr. Marinow opined that the 3% WPI was an overall add-on for pain rather than only to the left knee. Hence, when the matter is sent for a new rating, the rating instructions should also clarify that issue. Thus, we grant defendant's petition for reconsideration in order to amend the F&A to defer the issue of applicant's permanent disability (Finding of Fact, 2), otherwise affirm the F&A, and return the matter to the trial level for further proceedings as appropriate and a new decision. For the foregoing reasons, IT IS HEREBY ORDERED that defendant's Petition for Reconsideration of the Amended Findings and Award of October 16, 2012 is GRANTED. IT IS FURTHER ORDERED as the Decision After Reconsideration of the Workers' Compensation Appeals Board, that the Amended Findings and Award of October 16, 2012, is AFFIRMED except that Finding of Fact, 2 is AMENDED, as follows: FINDINGS OF FACT 2. The issue of permanent disability is deferred. [*18] IT IS FURTHER ORDERED that the matter is RETURNED to the WCJ for further proceedings as appropriate and a new decision. WORKERS' COMPENSATION APPEALS BOARD

7 Commissioner Deidra E. Lowe I concur, Commissioner Frank M. Brass Commissioner Marguerite Sweeney * * * * * REPORT AND RECOMMENDATION ON PETITION FOR RECONSIDERATION I. INTRODUCTION 1. Applicant's Occupation: Truck Driver Loader/Unloader Age at Injury: 54 Parts of Body Injured: Lumbar Spine, Left Knee and Left Ankle 2. Identity of Petitioner: Defendant Timeliness: The Petition was timely filed. Verified: The Petition was verified. 3. Date of Issuance of Amended Findings and Award: October 16, The Defendant/Petitioner contends: a) The Defendant is entitled to permanent disability credit for temporary disability overpaid from 10/4/11 through 1/2/12 at $ per week b) There is substantial medical evidence to support a finding that 50% of the applicant's left knee Permanent Disability is non- industrial II. SUMMARY OF FACTS The parties stipulated that the applicant was a Truck [*19] Driver, Loader/Unloader and sustained injury to his left elbow, low back, left knee and left ankle on November 2, The parties further stipulated that Permanent Disability was paid from January 3, 2012 and continuing. The parties agreed to utilize the services of Dr. Harry Marinow as the AME who first saw the applicant on October 4, 2011 and issued his first report of that date but did not sign his report until November 2, He subsequently issued two supplemental reports dated December 5, 2011 and April 20, 2012.

8 III. DISCUSSION AS TO CREDIT FOR TTD OVERPAYMENT As set forth in the Minutes of Hearing and Summary of Evidence, the parties stipulated that defendant paid TTD from November 2, 2010 through January 2, Dr. Marinow's report dated October 4, 2011, but not signed until November 2, 2011, found the applicant to be Permanent and Stationary at that time. Since there is no "Proof of Service" as to Dr. Marinow's report signed November 2, 2011 it is assumed he mailed it the same day. Allowing five days for mailing the defendant should have received the report on November 7, 2011 but did not cease payment of TTD until, admittedly January [*20] 2, 2012, almost two months later. Defendant offers no evidence or explanation for their own conduct in delaying the cessation of payments nor do they state any reason of fault or cause of delay on the applicant's part. The Appeals Board may allow a credit, for any payment, allowance, or benefit paid by the defendant to the injured employee when it was not then due and payable or when there was a dispute or question concerning the right to compensation. (Labor Code Section 4909) Allowance of a credit is within the Appeals Board's discretion. (City and County of San Francisco vs. Workmen's Comp. Appeals Bd. (Quinn) (1970) 2 Cal. 3d 1001 [35 Cal Comp Cases 390] Award of an overpayment credit must be "weighed in the light of the circumstances of the particular case and should not be subjected to a harsh dictate that avoids the equities presented." (Cordes vs. General Dynamics-Astronautics (1966) 31 Cal Comp Cases 429.) Credits need not be allowed when overpayments result from inept administration of the claim. (Maples vs. Workers' Comp Appeals Bd. (1980) 111 Cal. App. 3d 827 [45 Cal Comp Cases 1106].) [*21] In concluding defendant should not be allowed credit for its overpayment of TTD this WCJ gave considerable thought as to applicant's lack of fault and the overpayment apparently resulting from a lack of diligence on the part of defendant's claims adjuster. This WCJ also considered the fact that, according to the benefit printout which was defendant's Exhibit A, there was already a credit of $ 9, in Permanent Disability advanced as of September 9, In light of an Award of $ 27, in Permanent Disability, less applicant attorney fees of $ 4,096.87, less the lien of County of Los Angeles Child Support of $ 2, and less the $ 9, already advanced, the remaining balance is only $ 15, If a credit were allowed to defendant of the requested $ 9, that would result in only $ 2, remaining to defendant which may have already been advanced due to continuing payments. Therefore the request for a credit due to defendant's own lack of diligence was disallowed. IV.

9 DISCUSSION OF APPORTIONMENT Defendant is claiming 50% Apportionment of the 2% WPI to the left knee. Dr. Marinow, as the AME states in his October 4, 2011 report [*22] on page 5 that the applicant has a history sustaining injury to his left knee in 1991, some 18 years earlier from the November 2, 2010 date of injury herein, wherein he missed approximately three months from work and made a complete and full recovery with no residual symptoms. He notes on page 6 applicant's strenuous job duties as a Truck Driver Loader/Unloader working 5 7 days per week that applicant was performing prior to the November 2, 2010 injury. This is a physically demanding job with no evidence applicant was incapable of performing or was required to engage in modified duties prior to his industrial injury herein. It is recognized that this alone does not preclude Apportionment. Dr. Marinow notes on page 11 of calcification within the patellar tendon from the rupture in the 1991 basketball injury and notes it again on page 13. On page 15 under Causation/Apportionment it states "Relative to his left knee, he has a history of significant prior non-industrially-related injury when he was playing basketball at home in 1991 and sustained a rupture of his left knee patellar tendon that required surgical repair and he was off work for approximately three months for this [*23] injury which shows chronic posttraumatic residuals about the left knee patella and patellar tendon." He then apportions 50% to the prior left knee injury stating there are chronic radiographic residuals of significant posttraumatic changes. A conclusory statement is not substantial evidence. Escobedo vs. Marshalls (2005) 70 Cal. Comp. Cases 604 (Appeals Board en banc) explains that not all apportionment findings are substantial evidence. In Escobedo they use the example of a physician finding 50% Apportionment to an employee's back stating the physician must explain the how and why the disability is causally related to the industrial injury. It requires a medical opinion that is framed in terms of reasonable medical probability and must not be speculative but based upon pertinent facts and on an adequate examination and history. Pursuant to the AME's report on page 5 applicant's history is of a complete and full recovery with no residual symptoms. Therefore in this case the doctor should explain how and why the calcification and prior rupture with surgery causes 50% of the disability which he has not. Not all expert medical opinion [*24] constitutes substantial evidence. "(Hegglin vs. Workmen c Comp Appeals Bd. (1971) 4 Cal.3d 162 [136 Cal. Comp. Cases ]; Place vs. Workmen s Comp. Appeals Bd. (1970) 3 Cal.3d 372, [35 Cal. Comp. Cases 525].) To constitute substantial evidence, a medical opinion must be predicated on reasonable medical probability. (Escobedo vs. Marshalls (2005) 70 Cal. Comp. Cases 604 (en banc); McAllister vs. Workmen s Comp. Appeals Bd. supra. 69 Cal.2d ; Rosas vs. Workers Comp. Appeals Bd. (1993) 16 Cal.App.4th 169: , 1705 [58 Cal. Comp. Cases 313].) -A medical report predicated upon an incorrect legal theory

10 and devoid of relevant factual basis, as well as a medical opinion extended beyond the range of the physician's expertise, cannot rise to a higher level than its own inadequate premises." (Zemke vs. Workmen s Comp. Appeals Bd. (1968) 68 Cal.2d 794 [33 Cal. Comp. Cases ].) "Medical reports and [*25] opinions are not substantial evidence if they are known to be erroneous, or if they are based on facts no longer germane. On inadequate medical histories and examinations, or on incorrect legal theories. Medical opinion also fails to support the Boards findings if it is based on surmise, speculation, conjecture, or guess." (Hegglin vs. Workmen s Comp Appeals Bd., supra, 36 Cal. Comp. Cases at p. 97.) Whether a physician's opinion constitutes substantial evidence "must be determined by the material facts upon which his opinion was based and by the reasons given for his opinion." (Ibid.) Therefore lacking substantial medical basis for the Apportionment of 50% to the left knee it is merely a conclusory finding and defendant has failed to meet their burden. V. RECOMMENDATION It is respectfully recommended that the Defendant's Petition for Reconsideration be denied for the reasons stated above. Gregory E. Palmberg Workers' Compensation Administrative Law Judge Dated: November 20, 2012