ADJ11784473 · July 12, 2023

Defendant did not meet burden of proof on apportionment as no substantial evidence supported apportionment; prior medical reports lacked necessary explanation and factual history for apportionment; applicant's cumulative injury caused 45% permanent disability with no apportionment.

From the decision · page 4Here, in his February 27, 2019, report, as quoted above, QME Dr. Sherman stated his conclusion that 3% of applicant's 5% impairment was nonindustrial and 2% of the 5% impairment was "consistent with his described work activity." (Def. Exh. A, p. 5.) Dr. Sherman did not in any way, address the factors necessary to accurately determine apportionment of applicant's disability. (Escobedo v. Marshalls, supra.) Also, in his March 12, 2020, report, PTP Dr. Haronian, stated that he would apportion 50% of applicant's disability to the 2010 slip and fall accident, and 50% to the cumulative industrial injury. (App. Exh. 1, p. 7.) Although Dr. Haronian stated his conclusion as to apportionment, he did not provide any explanation and/or analysis supporting his conclusion. (Escobedo v. Marshalls, supra.) Additionally, it appears that neither doctor was provided any medical records pertaining to applicant's 2010 slip and fall injury. As such, the doctors were not given an accurate factual history relevant to whether applicant had any pre-existing disability caused by the 2010 injury. Thus, neither the report from Dr. Sherman nor the report from Dr. Haronian constitute substantial evidence regarding the issue of apportionment.

Reports from PTP Dr. Haronian were more persuasive than QME Dr. Sherman; applicant's overall orthopedic permanent disability rated at 45%.

From the decision · page 5We agree with the WCJ that as to the issue of whole person impairment/permanent disability, the reports from PTP Dr. Haronian are "more persuasive" than those of QME Dr. Sherman and based thereon applicant's "overall orthopedic permanent disability" is rated at 45%. (Opinion on Decision p. 2; Finding of Fact #4.) Thus, under these circumstances, it is appropriate that applicant be awarded 45% permanent disability.

Defendant did not provide substantial evidence supporting apportionment

Favours Applicant prevailed

Without substantial evidence, defendant failed to meet burden of proof on apportionment, leading to no apportionment finding

From the decision · page 4Here, in his February 27, 2019, report, as quoted above, QME Dr. Sherman stated his conclusion that 3% of applicant's 5% impairment was nonindustrial and 2% of the 5% impairment was "consistent with his described work activity." (Def. Exh. A, p. 5.) Dr. Sherman did not in any way, address the factors necessary to accurately determine apportionment of applicant's disability. (Escobedo v. Marshalls, supra.) Also, in his March 12, 2020, report, PTP Dr. Haronian, stated that he would apportion 50% of applicant's disability to the 2010 slip and fall accident, and 50% to the cumulative industrial injury. (App. Exh. 1, p. 7.) Although Dr. Haronian stated his conclusion as to apportionment, he did not provide any explanation and/or analysis supporting his conclusion. (Escobedo v. Marshalls, supra.) Additionally, it appears that neither doctor was provided any medical records pertaining to applicant's 2010 slip and fall injury. As such, the doctors were not given an accurate factual history relevant to whether applicant had any pre-existing disability caused by the 2010 injury. Thus, neither the report from Dr. Sherman nor the report from Dr. Haronian constitute substantial evidence regarding the issue of apportionment.

PTP Dr. Haronian's amended opinion found 100% cumulative trauma cause with no apportionment

Favours Applicant prevailed

This opinion was relied upon to find no apportionment and 45% permanent disability

From the decision · page 3Following review of the provided deposition and revisiting the patient's provided history at the time of his initial examination on March 6, 2019, I am led [sic] to reconsider my opinion regarding apportionment provided in my March 12, 2020, permanent and stationary report. It is now apparent the patient recovered following the earlier work injury in approximately 2010 and essentially performed his usual and customary duties for approximately two years before he experienced recurrent back pain. During this time, the patient had reported that his occupational duties required prolonged standing and walking and regular bending stooping and squatting as well as lifting and carrying up to 40 pounds. Given these factors, it is with reasonable medical probability that the patient's recurrent low back pain after two years of apparently being symptom free was industrially caused by the patient's cumulative trauma.

Initially apportioned 50% to slip and fall accident and 50% to cumulative injury; later amended to 100% cumulative trauma with no apportionment after reviewing history and deposition.

Amended opinion based on patient's history and deposition showing recovery from earlier injury and symptom-free period before recurrent pain due to cumulative trauma.

From the decision · page 3Following review of the provided deposition and revisiting the patient's provided history at the time of his initial examination on March 6, 2019, I am led [sic] to reconsider my opinion regarding apportionment provided in my March 12, 2020, permanent and stationary report. It is now apparent the patient recovered following the earlier work injury in approximately 2010 and essentially performed his usual and customary duties for approximately two years before he experienced recurrent back pain. During this time, the patient had reported that his occupational duties required prolonged standing and walking and regular bending stooping and squatting as well as lifting and carrying up to 40 pounds. Given these factors, it is with reasonable medical probability that the patient's recurrent low back pain after two years of apparently being symptom free was industrially caused by the patient's cumulative trauma.

Assigned 5% whole person impairment; apportioned 3% nonindustrial and 2% industrial; did not address necessary factors for apportionment determination.

Report lacked explanation and analysis required for substantial evidence on apportionment.

From the decision · page 4Here, in his February 27, 2019, report, as quoted above, QME Dr. Sherman stated his conclusion that 3% of applicant's 5% impairment was nonindustrial and 2% of the 5% impairment was "consistent with his described work activity." (Def. Exh. A, p. 5.) Dr. Sherman did not in any way, address the factors necessary to accurately determine apportionment of applicant's disability. (Escobedo v. Marshalls, supra.) Also, in his March 12, 2020, report, PTP Dr. Haronian, stated that he would apportion 50% of applicant's disability to the 2010 slip and fall accident, and 50% to the cumulative industrial injury. (App. Exh. 1, p. 7.) Although Dr. Haronian stated his conclusion as to apportionment, he did not provide any explanation and/or analysis supporting his conclusion. (Escobedo v. Marshalls, supra.) Additionally, it appears that neither doctor was provided any medical records pertaining to applicant's 2010 slip and fall injury. As such, the doctors were not given an accurate factual history relevant to whether applicant had any pre-existing disability caused by the 2010 injury. Thus, neither the report from Dr. Sherman nor the report from Dr. Haronian constitute substantial evidence regarding the issue of apportionment.

Lab. Code, 5952(d)

Substantial evidence required to support findings (Lab. Code, 5952(d))

The Appeals Board must base its decision on substantial evidence.

From the decision · page 4It is well established that any award, order, or decision of the Appeals Board must be supported by substantial evidence. (Lab. Code, § 5952(d); Lamb v. Workmen's Comp. Appeals Bd. (1974) 11 Cal.3d 274, 281 [39 Cal.Comp.Cases 310]; Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312, 317 [35 Cal.Comp.Cases 500]; Universal City Studios, Inc. v. Workers' Compensation Appeals Bd. (Lewis) (1979) 99 Cal.App.3d 647 [44 Cal.Comp.Cases 1133].)

Lab. Code, 5705

Burden of proof on affirmative party (Lab. Code, 5705)

The party holding the affirmative of the issue has the burden of proof, here defendant on apportionment.

From the decision · page 4"The burden of proof rests upon the party or lien claimant holding the affirmative of the issue." (Lab. Code, § 5705.) The employer has the burden of proof to establish apportionment of permanent disability to non-industrial factors or previous industrial injuries with substantial

Lab. Code 3202.5

Employer must prove apportionment with substantial evidence (Lab. Code 3202.5)

Defendant failed to meet burden of proof on apportionment due to lack of substantial evidence.

From the decision · page 5evidence. (Lab. Code § 3202.5; Kopping v. Workers' Comp. Appeals Bd. (Kopping) (2006) 142 Cal.App.4th 1099, 1114-1115 [71 Cal.Comp.Cases 1229].) Here, defendant carries the burden of proof on apportionment, and as discussed above, the trial record does not contain substantial evidence addressing that issue. Therefore, defendant did not meet its burden of proof.

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

Medical report requirements for apportionment (Escobedo v. Marshalls (2005))

Physician must identify percentages and explain other factors causing disability for apportionment to be substantial evidence.

From the decision · page 4why those factors are responsible for the percentage of disability assigned by the physician. (Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 621 (Appeals Board en banc).)

Kopping v. Workers' Comp. Appeals Bd. (2006) 142 Cal.App.4th 1099, 1114-1115

Burden of proof on employer for apportionment (Kopping v. Workers' Comp. Appeals Bd. (2006))

Employer must prove apportionment with substantial evidence; defendant did not meet burden here.

From the decision · page 5evidence. (Lab. Code § 3202.5; Kopping v. Workers' Comp. Appeals Bd. (Kopping) (2006) 142 Cal.App.4th 1099, 1114-1115 [71 Cal.Comp.Cases 1229].) Here, defendant carries the burden of proof on apportionment, and as discussed above, the trial record does not contain substantial evidence addressing that issue. Therefore, defendant did not meet its burden of proof.

Prior medical reports lacked necessary explanation and factual history for apportionment

From the decision · page 4Here, in his February 27, 2019, report, as quoted above, QME Dr. Sherman stated his conclusion that 3% of applicant's 5% impairment was nonindustrial and 2% of the 5% impairment was "consistent with his described work activity." (Def. Exh. A, p. 5.) Dr. Sherman did not in any way, address the factors necessary to accurately determine apportionment of applicant's disability. (Escobedo v. Marshalls, supra.) Also, in his March 12, 2020, report, PTP Dr. Haronian, stated that he would apportion 50% of applicant's disability to the 2010 slip and fall accident, and 50% to the cumulative industrial injury. (App. Exh. 1, p. 7.) Although Dr. Haronian stated his conclusion as to apportionment, he did not provide any explanation and/or analysis supporting his conclusion. (Escobedo v. Marshalls, supra.) Additionally, it appears that neither doctor was provided any medical records pertaining to applicant's 2010 slip and fall injury. As such, the doctors were not given an accurate factual history relevant to whether applicant had any pre-existing disability caused by the 2010 injury. Thus, neither the report from Dr. Sherman nor the report from Dr. Haronian constitute substantial evidence regarding the issue of apportionment.

Applicant's cumulative injury caused 45% permanent disability with no apportionment

From the decision · page 5We agree with the WCJ that as to the issue of whole person impairment/permanent disability, the reports from PTP Dr. Haronian are "more persuasive" than those of QME Dr. Sherman and based thereon applicant's "overall orthopedic permanent disability" is rated at 45%. (Opinion on Decision p. 2; Finding of Fact #4.) Thus, under these circumstances, it is appropriate that applicant be awarded 45% permanent disability.