ADJ10753764 · June 7, 2021

Dr. Meade's apportionment percentages lacked explanation and did not meet the legal standard for apportionment, so apportionment was rejected and an unapportioned award was affirmed.

From the decision · page 8In this matter Dr. Meade gave numbers for apportionment to factors other than the industrial injury but did not explain why or how those factors contributed to applicant's disability. Therefore an unapportioned disability award is due."

The psychiatric injury was found to arise out of and in the course of employment and was a final binding finding from the 2018 decision, not a compensable consequence of orthopedic injury, so defendant's challenge was denied.

From the decision · page 7Defendant asserts that applicant's psychiatric claim is the result of three different causes including compensable consequences of an orthopedic injury. The problem with that assertion is that it is not born out by findings of fact in this specific cases, which are final and can't be revisited. As noted above WCALJ Samuel found that applicant sustained a cumulative injury to his teeth and psyche on August 29, 2018. No party sought reconsideration of that finding and so it became final and binding on the parties 25 days later. It is improper to presently look behind that finding and say that the psyche injury is due to a consequence of other injuries.

The 2018 Findings and Award found applicant sustained psychiatric injury arising out of and in the course of employment, which became final and binding.

Favours Applicant prevailed

This final finding precluded defendant from challenging the psychiatric injury as a compensable consequence of orthopedic injury in the current petition.

From the decision · page 7Defendant asserts that applicant's psychiatric claim is the result of three different causes including compensable consequences of an orthopedic injury. The problem with that assertion is that it is not born out by findings of fact in this specific cases, which are final and can't be revisited. As noted above WCALJ Samuel found that applicant sustained a cumulative injury to his teeth and psyche on August 29, 2018. No party sought reconsideration of that finding and so it became final and binding on the parties 25 days later. It is improper to presently look behind that finding and say that the psyche injury is due to a consequence of other injuries.

Dr. Meade's apportionment opinion lacked explanation and did not meet the legal standard for apportionment under Escobedo v Marshalls.

Favours Applicant prevailed

This failure to meet the burden of proof led to rejection of apportionment and an unapportioned award of psychiatric disability.

From the decision · page 8In this matter Dr. Meade gave numbers for apportionment to factors other than the industrial injury but did not explain why or how those factors contributed to applicant's disability. Therefore an unapportioned disability award is due."

Dr. Meade found applicant permanent and stationary with 29% psychiatric permanent disability, no overlap with teeth or hearing disability, and provided apportionment percentages without adequate explanation, which was rejected.

Apportionment percentages lacked explanation and did not meet legal standards for apportionment.

From the decision · page 8In this matter Dr. Meade gave numbers for apportionment to factors other than the industrial injury but did not explain why or how those factors contributed to applicant's disability. Therefore an unapportioned disability award is due."

California Labor Code

Labor Code section 4660.1(c)

Applied to determine that psychiatric injury was not a compensable consequence of orthopedic injury and to reject defendant's challenge.

From the decision · page 6"(c) (1) Except as provided in paragraph (2), the impairment ratings for sleep dysfunction, sexual dysfunction, or psychiatric disorder, or any combination thereof, arising out of a compensable physical injury shall not increase. This section does not limit the ability of an injured employee to obtain treatment for sleep dysfunction, sexual dysfunction, or psychiatric disorder, if any, that are a consequence of an industrial injury. (2) An increased impairment rating for psychiatric disorder is not subject to paragraph (1) if the compensable psychiatric injury resulted from either of the following: (A) Being a victim of a violent act or direct exposure to a significant violent act within the meaning of Section 3208.3 (B) A catastrophic injury, including, but not limited to, loss of a limb, paralysis, severe burn, or severe head injury."

Escobedo v Marshalls

Escobedo v Marshalls (2005) 70 Cal.Comp.Cases 604, 621 (WCAB en banc)

Applied to evaluate the adequacy of medical apportionment opinion and reject apportionment due to lack of explanation.

From the decision · page 8"The only real dispute is over apportionment. While Dr. Meade apportioned some of applicant's disability to various factors other than his industrial injury (e.g. an errant belief that applicant's father was in hospice, and stress from dealing with special needs sons) that apportionment does not meet the legal thresholds set out Escobedo v Marshalls (2005) 70 Cal.Comp.Cases 604, 621 (WCAB en banc):

Applicant's psychiatric injury was found to be a direct injury arising out of and in the course of employment, not a compensable consequence of orthopedic injury.

From the decision · page 7Defendant asserts that applicant's psychiatric claim is the result of three different causes including compensable consequences of an orthopedic injury. The problem with that assertion is that it is not born out by findings of fact in this specific cases, which are final and can't be revisited. As noted above WCALJ Samuel found that applicant sustained a cumulative injury to his teeth and psyche on August 29, 2018. No party sought reconsideration of that finding and so it became final and binding on the parties 25 days later. It is improper to presently look behind that finding and say that the psyche injury is due to a consequence of other injuries.

Dr. Meade's apportionment opinion lacked explanation and did not meet the legal standard for apportionment, favoring applicant's claim for full award without apportionment.

From the decision · page 8In this matter Dr. Meade gave numbers for apportionment to factors other than the industrial injury but did not explain why or how those factors contributed to applicant's disability. Therefore an unapportioned disability award is due."