In a recent decision, the WCAB denied the defendant’s Petition for Reconsideration, affirming a trial-level award in favor of applicant Jose Gamboa, a 61-year-old production worker who sustained industrial injury to both shoulders and claimed psychiatric consequences.

The defendant challenged:

• The medical-legal basis of the AME’s alternative impairment rating,
• The exclusion of subrosa video meant to impeach the applicant,
• And the adequacy of apportionment analysis.

The WCAB upheld the WCJ’s findings, reinforcing legal standards for introducing subrosa footage, challenging AME conclusions, and proving apportionment.

Highlights from the Decision

AME’s Impairment Rating Upheld
Despite the absence of a Functional Capacity Evaluation (FCE) or EMG testing, AME Dr. Peter Mandell’s Almaraz/Guzman rating was found to constitute substantial medical evidence. The WCJ noted that while further testing might have helped, it was not essential—and defense never arranged it prior to trial.

Subrosa Video Properly Excluded
Defense sought to admit gym footage of the applicant from October 2024 to challenge his credibility. However, the WCJ found:

• The video was never reviewed by the AME;
• Defense failed to lay a proper foundation;
• And applicant had not claimed he could never attend a gym.

Thus, the subrosa lacked relevance for impeachment and was excluded.

Apportionment Analysis Survived Challenge
Dr. Mandell apportioned 20% of disability to a specific injury, 5% to diabetes, and 75% to cumulative trauma. Although the reasoning was somewhat conclusory, the WCAB agreed it was sufficient in context and did not undermine the award.

Practice Pointers for Claims and Defense

Provide Subrosa to AMEs Before Deposition
Unreviewed subrosa has little evidentiary value. If impeachment is the goal, the video must be clearly linked to specific representations made to the medical evaluator.

Use Subrosa Strategically—With Foundation
Ask applicants pointed questions tying their testimony or medical statements to actions captured in the video. Avoid vague or speculative questioning that lacks time context or relevance.

Don’t Skip Key Medical Tests if You Plan to Challenge Ratings
If you intend to dispute an AME’s conclusions, consider whether an FCE or other testing is needed—and authorize it early. Failing to do so can estop the defense from arguing the evaluation was incomplete.

Monitor AME Apportionment Carefully
Where apportionment is asserted, demand a clear explanation of “how and why” percentages were reached. Without it, apportionment may not withstand scrutiny on appeal.

Bottom Line

The Gamboa decision is a reminder that successful defense relies on early coordination, timely discovery, and precise evidentiary tactics. Subrosa footage, when used properly, can be powerful—but only when supported by thoughtful medical and legal groundwork.