Authorities as the decision cited them, with how this panel applied each one.
California Labor Code
Labor Code 662(b) - Determination of permanent disability percentage considering injury, occupation, and age.
Applied to assess permanent total disability based on vocational and medical evidence.
From the decision · page 7Labor Code § 4660(a) states that "in determining the percentages of
permanent disability, account shall be taken of the nature of the physical injury
or disfigurement, the occupation of the injured employee, and his or her age at
the time of the injury, consideration being given to an employee's diminished
future earning capacity".
California Labor Code
Labor Code 663 - Burden of proof on apportionment of permanent disability.
Applied to evaluate defendant's apportionment evidence and its insufficiency.
From the decision · page 11C. THE APPORTIONMENT OPINION OF DR. MICHAEL DOES NOT
CONSTITUTE SUBSTANTIAL MEDICAL EVIDENCE.
California Court of Appeal
Ogilvie v. Workers' Comp. Appeals Bd. (2011) 197 Cal. App. 4th 1111 - Methods to rebut scheduled rating for permanent disability.
Used to assess vocational expert's individualized evaluation and rebuttal of scheduled rating.
From the decision · page 7The scheduled rating is 'prima facie evidence of the percentage of
permanent disability to be attributed to each injury covered by the schedule'.
(Labor Code § 4660(c).) In Oglivie, the Court of Appeals held that there are three
permissible methods by which the schedule rating could be rebutted. (Oglivie v.
Workers' Comp. Appeals Bd. (2011) 197 Cal. App. 4t11.) First, an employee can
rebut the scheduled rating by showing a factual error in the application of a
formula or the preparation of the schedule. Second, the employee can show the
injury impairs his or her rehabilitation, and for that reason, the employee's
diminished future earnings capacity is greater than reflected in the employee's
scheduled rating. Third, an employee can show that the severity of the claimant's
injury is not captured within the sampling of the disabled workers that was used
to compute the adjustment factor. (Id.)
California Workers' Compensation Appeals Board
Escobedo v. CNA Insurance Company (2005) 70 Cal. Comp. Cases 604 - Requirements for substantial medical evidence on apportionment.
Applied to reject insufficient apportionment opinion lacking detailed rationale.
From the decision · page 11It is well settled that in order to constitute substantial evidence a medical
opinion must be predicated on medical probability and is not substantial
evidence if it is based on facts no longer germane, on inadequate medical
histories, or examination on incorrect legal theories, or on surmise, speculation,
conjecture or guess. (Escobedo v. CNA Insurance Company (2005) 70 Cal.
Comp. Cases 604, 613.) A medical report is not substantial evidence unless it
sets forth the reasoning behind the physician's opinion, not merely his or her
conclusions. (Milpitas Unified School District v. WCAB (Guzman) (2010) 75
Cal. Comp. Cases 837.)
California Workers' Compensation Appeals Board
Milpitas Unified School District v. WCAB (Guzman) (2010) 75 Cal. Comp. Cases 837 - Medical report requirements for substantial evidence.
Applied to assess the necessity of reasoning behind medical opinions for apportionment.
From the decision · page 11It is well settled that in order to constitute substantial evidence a medical
opinion must be predicated on medical probability and is not substantial
evidence if it is based on facts no longer germane, on inadequate medical
histories, or examination on incorrect legal theories, or on surmise, speculation,
conjecture or guess. (Escobedo v. CNA Insurance Company (2005) 70 Cal.
Comp. Cases 604, 613.) A medical report is not substantial evidence unless it
sets forth the reasoning behind the physician's opinion, not merely his or her
conclusions. (Milpitas Unified School District v. WCAB (Guzman) (2010) 75
Cal. Comp. Cases 837.)