What the panel ordered
The Joint Findings, Award & Order dated August 11, 2022 is affirmed except that the issues of permanent disability, apportionment, and attorney fees are deferred.
Defendant sought reconsideration of the Joint Findings, Award & Order issued by the WCJ on August 11, 2022, which awarded temporary disability and permanent disability without apportionment. The WCJ filed a Report and Recommendation to deny reconsideration. The WCAB panel issued a Decision After Reconsideration affirming the award except deferring permanent disability, apportionment, and attorney fees.
What was disputed, and how it came out
Each issue the panel decided, with the reasoning it gave. An outcome is what this panel did on this record — not a rule, and not a prediction.
The WCJ initially awarded 100% permanent disability with no apportionment, but the WCAB deferred the issues of permanent disability, apportionment, and attorney fees for further consideration due to the need for proper apportionment consistent with controlling precedent.
From the decision · page 12Accordingly, as our Decision After Reconsideration, we amend the Joint FA&O to defer the issues of permanent disability, apportionment, and attorney fees. We otherwise affirm the Joint FA&O.
The WCJ awarded temporary disability benefits for the period from October 29, 2012 to April 6, 2016, and the WCAB affirmed this award despite defendant's contention that benefits were limited to 240 weeks within five years of injury under Labor Code section 4656(b).
From the decision · page 8Accordingly, we do not disturb the finding as to additional temporary disability benefits from October 29, 2012 to April 6, 2016.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Applicant sustained industrial injuries on November 15, 2001, April 23, 2002, and February 21, 2003 to various body parts including back, neck, left shoulder, left knee, and psyche.
Favours Applicant prevailed
These injuries form the basis for the claims and the apportionment issues deferred for further consideration.
From the decision · page 1Defendant seeks reconsideration of the Joint Findings, Award & Order (FA&O) issued on August 11, 2022, by the workers' compensation administrative law judge (WCJ). The WCJ found, in pertinent part, that applicant sustained industrial injuries on November 15, 2021 to her back and psyche (ADJ3590497), on April 23, 2002 to her neck, low back, left shoulder, left knee and psyche (ADJ2549459) and on February 21, 2003 to her neck, back, left shoulder and psyche (ADJ108951). The WCJ issued an award of temporary disability for (ADJ108951) from October 29, 2012 to April 6, 2016 and a joint award of 100% permanent disability with no basis for orthopedic apportionment.
The WCJ awarded temporary disability benefits from October 29, 2012 to April 6, 2016, which the WCAB affirmed despite defendant's contention of statutory limits.
Favours Applicant prevailed
This award of temporary disability benefits was upheld, favoring the applicant.
From the decision · page 8Accordingly, we do not disturb the finding as to additional temporary disability benefits from October 29, 2012 to April 6, 2016.
The vocational expert's opinion on vocational apportionment was rejected as it conflicts with controlling precedent requiring medical apportionment.
Favours Defendant prevailed
This rejection led to deferral of permanent disability and apportionment issues for further review.
What the panel did with the medical opinions
The role the physician served, and the weight the opinion carried. Physicians are named here as the decision names them; we do not score them.
Diagnosed cervical bulging disc at C5-C6 with annular tear, right upper extremity radiculopathy, left shoulder strain and sprain; found temporary total disability from October 29, 2012 to April 6, 2016; apportioned permanent disability among multiple injuries and preexisting factors; limited applicant to sedentary work.
The WCAB considered Dr. Angerman's detailed apportionment and disability findings but deferred permanent disability and apportionment issues for further review.
From the decision · page 4AME Dr. Angerman diagnosed applicant with a cervical bulging disc at C5-C6 with an annular tear, with right upper extremity radiculopathy and a left shoulder strain and sprain. (Id. at pp. 50-51.)
Opined that applicant's impairments caused overlapping and synergistic effects on her ability to compete in the labor market, warranting a combined 100% permanent disability award; this vocational apportionment was rejected as not substantial evidence.
The WCAB rejected the vocational expert's concept of vocational apportionment as inconsistent with controlling precedent and required a supplemental report.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Labor Code section 4656(b)
Labor Code section 4656(b) limits temporary disability benefits to a maximum of 240 compensable weeks within five years of the date of injury.
Applied to defendant's contention regarding temporary disability benefits.
From the decision · page 1Defendant seeks reconsideration of the Joint Findings, Award & Order (FA&O) issued on August 11, 2022, by the workers' compensation administrative law judge (WCJ). The WCJ found, in pertinent part, that applicant sustained industrial injuries on November 15, 2021 to her back and psyche (ADJ3590497), on April 23, 2002 to her neck, low back, left shoulder, left knee and psyche (ADJ2549459) and on February 21, 2003 to her neck, back, left shoulder and psyche (ADJ108951). The WCJ issued an award of temporary disability for (ADJ108951) from October 29, 2012 to April 6, 2016 and a joint award of 100% permanent disability with no basis for orthopedic apportionment.
Labor Code sections 4663 and 4664
Apportionment of permanent disability must be based on causation and the employer is liable only for the percentage of permanent disability directly caused by the industrial injury.
Applied to the issue of permanent disability apportionment.
From the decision · page 9The mere fact that a medical report assigns approximate percentages of industrial and nonindustrial causation does not make the report reliable medical evidence by itself. (E.L. Yeager Construction v. Workers' Comp. Appeals Bd. (Gatten) (2006) 145 Cal.App.4th 922, 927-928 [71Cal.Comp.Cases 1687].) Instead, apportionment of permanent disability is "based on causation" and the "employer shall only be liable for the percentage of permanent disability directly caused by the injury arising out of and occurring in the course of employment." (Lab.Code, § 4663(a) and 4664(a).) "The plain reading of `causation' in this context is causation of the permanent disability." (Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 611 (Appeals Board en banc) (Escobedo).) Apportionment now includes pathology, asymptomatic prior conditions, and retroactive prophylactic work preclusions, provided there is substantial evidence establishing that these other factors have caused permanent disability. Pursuant to Escobedo, a physician's opinion must rely on reasonable medical probability, cannot be speculative, must rely on pertinent facts and/or an adequate examination and history, and must set forth the reasoning in support of its conclusions. (Id. at p.621.) That is, a physician must explain the "howand why" of their apportionment opinion (Ibid.) and
Benson v. The Permanente Medical Group (2007) 72 Cal.Comp.Cases 1620 (Appeals Board en banc)
Where a reporting physician cannot parcel out the approximate percentages to which each distinct industrial injury contributed to the overall permanent disability, a combined award is appropriate.
Discussed in relation to apportionment of permanent disability across multiple dates of injury.
Nunes v. State of California, Dept. of Motor Vehicles (2023) 88 Cal.Comp.Cases 741 (Appeals Board en banc)
Vocational expert opinions must set forth the history and evidentiary basis for their conclusions, including an explanation of how and why a condition results in permanent disability; vocational apportionment is not recognized under Labor Code section 4663.
Applied to reject vocational apportionment and require a supplemental report from the vocational expert.
From the decision · page 10With respect to vocational expert evidence, pursuant to Nunes v. State of California, Dept. of Motor Vehicles (2023) 88 Cal.Comp.Cases 741 (Appeals Board enbanc) (Nunes I), the Appeals Board held as follows:
What proof carried it
The evidence the panel weighed, by kind.
Applicant's testimony about difficulties with activities of daily living, use of walker and wheelchair, and need for in-home support services
From the decision · page 5Since her injury, the applicant has had difficulties conducting activities of daily living such as driving, shopping, cleaning, and cooking. the applicant noted that she can stand for 15-20 minutes while using a walker. the applicant noted being able to sit down for 10-15 minutes then she needs to lay down. the applicant reported that while laying down she must turn around and change positions. the applicant stated she uses a walker, and she can walk for 5 minutes. the applicant stated that she requires constant assistance while walking due to spasms. the applicant stated that she has not driven since 2006 because she is in a wheelchair. Since her industrial injury, the applicant has had 4 surgeries. the applicant receives 140.15 hours a month of in-home support services. In addition, when the applicant's in-home support service workers are not working, her brother, granddaughter, and son assist her.
The same issues, filtered across the whole corpus — or paste your own facts and let the search rank by factor match.
About this page
- A published decision of the California Workers' Compensation Appeals Board, taken apart by what it turned on. The Board publishes the decision itself; this page adds the extraction and quotes the passage behind every claim.
- The injured worker is not named here, and the case caption is not printed. Physicians appear as the decision names them, because a medical opinion is an act in a public proceeding.
- Issues, outcomes and weights were extracted by AI and released only where the source passage checked. Read the official decision before relying on anything here. Not legal advice.
- If you are named in this decision and want this page removed, write to privacy@similarcase.com.