Martha Mendez, vs. Ymca Of San Francisco; Travelers Walnut Creek,

(SFO 0479985)In this case, Martha Mendez was granted a petition to reopen her workers' compensation claim for an injury she sustained in 2003. The defendant sought reconsideration of the award, arguing that the medical report of the Agreed Medical Evaluator (AME) justified a finding of 50% apportionment of the increased permanent disability due to non-industrial degenerative changes. After reviewing the evidence, the Workers' Compensation Appeals Board granted reconsideration, rescinded the WCJ's decision, and returned the matter to the trial level for further proceedings and a new decision by the WCJ.

YMCA OF SAN FRANCISCO; TRAVELERS WALNUT CREEK, MARTHA MENDEZ, WORKERS’ COMPENSATION APPEALS BOARDSTATE OF CALIFORNIAMARTHA MENDEZ, Applicant,vs.YMCA OF SAN FRANCISCO; TRAVELERS WALNUT CREEK, Defendant(s).Case No. ADJ3265357 (SFO 0479985)OPINION AND ORDER GRANTING RECONSIDERATION AND DECISION AFTER RECONSIDERATION            Defendant seeks reconsideration of the Findings and Award of June 16, 2009, in which the workers’ compensation judge (WCJ) granted applicant’s petition to reopen and found, in relevant part, that on October 31, 2003, applicant sustained industrial injury to her neck and low back, causing permanent disability of 28%, that applicant also sustained industrial injury to her psyche and gastrointestinal system, that applicant is entitled to a permanent disability award of 57%, and that there is a basis for apportionment of the psychiatric disability.            Defendant contends, in substance, that the November 8, 2007 medical report of Dr. Gupta, the Agreed Medical Evaluator (AME) in orthopedics, justifies a finding of 50% apportionment of the increased permanent disability due to non-industrial degenerative changes demonstrated by MRI studies.            Applicant filed an answer.            Based on our review of the record, we agree that Dr. Gupta’s medical opinion justifies apportionment. However, we conclude that the WCJ should recalculate permanent disability in light of Dr. Gupta’s opinion on apportionment. Therefore, we will grant reconsideration, rescind the WCJ’s decision, and return this matter to the trial level for further proceedings and new decision d by the WCJ. ,             Reviewing the evolution of Dr. Gupta’s opinion on apportionment, we note that in her June 7, 2005 report, the doctor stated, in relevant part, as follows:       “The examinee slipped and fell during work activities on       October 31, 2003. The examinee developed neck and low back       pain. She sought medical treatment, was given physical therapy       and

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