What the panel ordered
March 29, 2023 Second Findings, Award and Order rescinded; Findings of Fact restated; award of future medical care granted; no indemnity awarded due to no new permanent disabilityp. 18
Petition for Reconsideration granted; Decision After Reconsideration issued affirming overlap and apportionment findings
This docket was decided more than once. Shown here is the latest released decision; we also hold April 12, 2022.
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 anti-attribution provisions of section 4663(e) do not preclude apportionment under section 4664(b) to prior awards of disability.
From the decision · page 8section 4663(e) exempts applicant’s low back injury from apportionment to causation that would otherwise be required under section 4663(a). However, section 4664(a) also provides that the employer is only liable for the percentage of permanent disability directly caused by the injury arising out of and occurring in the course of employment. Pursuant to section 4664(b), applicant’s prior low back disability is conclusively presumed to exist at the time of any subsequent industrial injury. Accordingly, the issue before us involves whether the anti-attribution provisions of section 4663(e), which preclude apportionment based on causation, would also preclude the apportionment required under section 4664(b) to applicant’s prior award of disability. In Bates, supra, 84 Cal.Comp.Cases 648, the WCJ found that applicant sustained two consecutive cumulative injuries, the first from May 10, 2009 to May 10, 2010, and another beginning May 10, 2010 through April 18, 2012. Both injuries were subject to the “heart trouble” presumptions of section 3212. The WCJ entered one award of disability for both injuries but allowed credit for the dollar value of the prior industrial award. (Id. at p. 650.) Defendant petitioned for reconsideration, contending that section 4664(a) and Benson v. Workers’ Comp.
Defendant met burden to show total overlap between prior and current injuries, supporting apportionment under Labor Code section 4664(b).
From the decision · page 18Based on the opinion of primary treating physician Larry Dodge, M.D., applicant has 13 percent whole person impairment to her lumbar spine under the AMA Guides for the cumulative injury from November 3, 2003 through November 3, 2004. 8. Based on the opinion of qualified medical examiner Beth Bathgate, M.D., applicant’s cumulative injury from November 3, 2004 through September 11, 2017 caused whole person impairment of 13 percent under the AMA Guides. 9. Defendant has met its burden of establishing a total overlap between past and current injuries and thus has met it burden to show apportionment under section 4664(b). 10. Applicant has not suffered any additional permanent impairment or resulting permanent partial disability from the November 3, 2004 through September 11, 2017 industrial injury.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Defendant established total overlap between prior and current injuries.
Favours Defendant prevailed
This overlap supports apportionment under Labor Code section 4664(b).
From the decision · page 18Based on the opinion of primary treating physician Larry Dodge, M.D., applicant has 13 percent whole person impairment to her lumbar spine under the AMA Guides for the cumulative injury from November 3, 2003 through November 3, 2004. 8. Based on the opinion of qualified medical examiner Beth Bathgate, M.D., applicant’s cumulative injury from November 3, 2004 through September 11, 2017 caused whole person impairment of 13 percent under the AMA Guides. 9. Defendant has met its burden of establishing a total overlap between past and current injuries and thus has met it burden to show apportionment under section 4664(b). 10. Applicant has not suffered any additional permanent impairment or resulting permanent partial disability from the November 3, 2004 through September 11, 2017 industrial injury.
Anti-attribution provisions of section 4663(e) do not preclude apportionment under section 4664(b).
Favours Defendant prevailed
This legal interpretation allows apportionment to prior awards despite section 4663(e).
From the decision · page 8section 4663(e) exempts applicant’s low back injury from apportionment to causation that would otherwise be required under section 4663(a). However, section 4664(a) also provides that the employer is only liable for the percentage of permanent disability directly caused by the injury arising out of and occurring in the course of employment. Pursuant to section 4664(b), applicant’s prior low back disability is conclusively presumed to exist at the time of any subsequent industrial injury. Accordingly, the issue before us involves whether the anti-attribution provisions of section 4663(e), which preclude apportionment based on causation, would also preclude the apportionment required under section 4664(b) to applicant’s prior award of disability. In Bates, supra, 84 Cal.Comp.Cases 648, the WCJ found that applicant sustained two consecutive cumulative injuries, the first from May 10, 2009 to May 10, 2010, and another beginning May 10, 2010 through April 18, 2012. Both injuries were subject to the “heart trouble” presumptions of section 3212. The WCJ entered one award of disability for both injuries but allowed credit for the dollar value of the prior industrial award. (Id. at p. 650.) Defendant petitioned for reconsideration, contending that section 4664(a) and Benson v. Workers’ Comp.
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.
Rated applicant's lumbar spine impairment at 13% whole person impairment under AMA Guides for prior cumulative injury.
Dr. Dodge's rating supported the finding of overlap between prior and current injuries.
From the decision · page 18Based on the opinion of primary treating physician Larry Dodge, M.D., applicant has 13 percent whole person impairment to her lumbar spine under the AMA Guides for the cumulative injury from November 3, 2003 through November 3, 2004. 8. Based on the opinion of qualified medical examiner Beth Bathgate, M.D., applicant’s cumulative injury from November 3, 2004 through September 11, 2017 caused whole person impairment of 13 percent under the AMA Guides. 9. Defendant has met its burden of establishing a total overlap between past and current injuries and thus has met it burden to show apportionment under section 4664(b). 10. Applicant has not suffered any additional permanent impairment or resulting permanent partial disability from the November 3, 2004 through September 11, 2017 industrial injury.
Rated applicant's cumulative injury from 2004 to 2017 at 13% whole person impairment under AMA Guides, supporting overlap and apportionment.
Dr. Bathgate's rating confirmed overlap and supported apportionment under section 4664(b).
From the decision · page 16(Opinion on Decision, at p. 4.) The WCJ further notes that current orthopedic QME Dr. Bathgate has similarly rated applicant’s lumbar spine impairment at 13 percent, based on her status as “post-surgery for radiculopathy,” placing the applicant within Table 15-3, DRE Lumbar Category III of the AMA Guides. (Ex. A, Report of Beth Bathgate, M.D., dated November 9, 2018, at pp. 34-35.) Given the presence of direct overlap in the ratings methodology and the resulting ratings for applicant’s
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Labor Code
Labor Code section 4664(b)
Apportionment to prior awards of permanent disability requires proof of overlap between prior and current injuries.
From the decision · page 18Based on the opinion of primary treating physician Larry Dodge, M.D., applicant has 13 percent whole person impairment to her lumbar spine under the AMA Guides for the cumulative injury from November 3, 2003 through November 3, 2004. 8. Based on the opinion of qualified medical examiner Beth Bathgate, M.D., applicant’s cumulative injury from November 3, 2004 through September 11, 2017 caused whole person impairment of 13 percent under the AMA Guides. 9. Defendant has met its burden of establishing a total overlap between past and current injuries and thus has met it burden to show apportionment under section 4664(b). 10. Applicant has not suffered any additional permanent impairment or resulting permanent partial disability from the November 3, 2004 through September 11, 2017 industrial injury.
Labor Code
Labor Code section 4663(e)
Anti-attribution provisions of section 4663(e) do not preclude apportionment under section 4664(b) to prior awards.
From the decision · page 8section 4663(e) exempts applicant’s low back injury from apportionment to causation that would otherwise be required under section 4663(a). However, section 4664(a) also provides that the employer is only liable for the percentage of permanent disability directly caused by the injury arising out of and occurring in the course of employment. Pursuant to section 4664(b), applicant’s prior low back disability is conclusively presumed to exist at the time of any subsequent industrial injury. Accordingly, the issue before us involves whether the anti-attribution provisions of section 4663(e), which preclude apportionment based on causation, would also preclude the apportionment required under section 4664(b) to applicant’s prior award of disability. In Bates, supra, 84 Cal.Comp.Cases 648, the WCJ found that applicant sustained two consecutive cumulative injuries, the first from May 10, 2009 to May 10, 2010, and another beginning May 10, 2010 through April 18, 2012. Both injuries were subject to the “heart trouble” presumptions of section 3212. The WCJ entered one award of disability for both injuries but allowed credit for the dollar value of the prior industrial award. (Id. at p. 650.) Defendant petitioned for reconsideration, contending that section 4664(a) and Benson v. Workers’ Comp.
What proof carried it
The evidence the panel weighed, by kind.
Credibility of Dr. Dodge and Dr. Bathgate's impairment ratings and overlap opinions
From the decision · page 18Based on the opinion of primary treating physician Larry Dodge, M.D., applicant has 13 percent whole person impairment to her lumbar spine under the AMA Guides for the cumulative injury from November 3, 2003 through November 3, 2004. 8. Based on the opinion of qualified medical examiner Beth Bathgate, M.D., applicant’s cumulative injury from November 3, 2004 through September 11, 2017 caused whole person impairment of 13 percent under the AMA Guides. 9. Defendant has met its burden of establishing a total overlap between past and current injuries and thus has met it burden to show apportionment under section 4664(b). 10. Applicant has not suffered any additional permanent impairment or resulting permanent partial disability from the November 3, 2004 through September 11, 2017 industrial injury.
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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.
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