What the panel ordered
Petition for Reconsideration granted; WCJ Findings of Fact of January 25, 2024 rescinded; new Findings and Award substituted granting applicant 42% permanent partial disability without apportionment; permanent disability indemnity and attorney fees awarded.
Defendant sought reconsideration of the WCJ Findings of Fact issued January 25, 2024, which the WCAB panel granted, rescinding the Findings and substituting new Findings and Award.
This docket was decided more than once. Shown here is the latest released decision; we also hold June 9, 2023.
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.
Dr. Abelow's reports did not explain how and why non-industrial factors caused permanent disability or the assigned percentage, thus not substantial evidence; defendant failed to meet burden of proof on apportionment.
From the decision · page 3August 9, 2023 supplemental report, do not constitute substantial evidence addressing the issue of apportionment. (Escobedo v. Marshalls, supra.)1
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Dr. Abelow's reports did not explain how and why non-industrial factors caused permanent disability or the assigned percentage.
Favours Applicant prevailed
This failure meant the reports were not substantial evidence on apportionment, leading to defendant's failure to meet burden of proof.
From the decision · page 3August 9, 2023 supplemental report, do not constitute substantial evidence addressing the issue of apportionment. (Escobedo v. Marshalls, supra.)1
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.
Initially opined 75% industrial injury and 25% prior non-industrial factors; later revised to 50% industrial and 50% non-industrial apportionment for right shoulder permanent disability; reports found not substantial evidence for apportionment as lacking explanation of causation and percentage assignment.
Reports did not explain how and why non-industrial factors caused permanent disability or the assigned percentage, thus not substantial evidence.
From the decision · page 2BACKGROUND Applicant claimed injury to her right shoulder on January 7, 2019, while employed by defendant as a bus driver and cafeteria worker. AME Dr. Abelow evaluated applicant on October 28, 2019. He concluded that 75% of applicant's right shoulder disability was the result of her January 7, 2019 industrial injury and 25% of her disability was caused by her prior right shoulder injury and surgery. (Joint Exh.1, Stephen Abelow, M.D., October 28, 2019, p. 16.) After reviewing additional medical records, in his January 31, 2021, supplemental report Dr. Abelow concluded that:
Unable to address apportionment due to inadequate medical information; reports not substantial evidence for apportionment.
Reports not substantial evidence for apportionment due to inadequate medical information.
From the decision · page 31 We also note that in his most recent report, orthopedic QME Robert Henrichsen, M.D., stated, "I continue to be unable to address issues such as cumulative trauma, apportionment and work restrictions because I have inadequate medical information." (Joint Exh. 9, Robert Henrichsen, M.D., March 31, 2022, p. 4.) Clearly, his reports are not substantial evidence regarding apportionment.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Labor Code section 4663(c)
Defendant has the burden of establishing the approximate percentage of permanent disability caused by factors other than the industrial injury (Labor Code section 4663(c)).
Defendant failed to meet burden of proof on apportionment due to lack of substantial evidence.
From the decision · page 4evidence as to the issues submitted for decision. (See San Bernardino Community Hosp. v. Workers' Comp. Appeals Bd. (McKernan) (1999) 74 Cal.App.4th 928 [64 Cal.Comp.Cases 986].) In accordance with Labor Code section 4663(c), the defendant has the burden of establishing the approximate percentage of permanent disability caused by factors other than the industrial injury. (See also, Lab. Code, § 05705.) In this matter, by our June 9, 2023 Order, we gave defendant the opportunity to develop the record so that it contained substantial evidence regarding the issue of apportionment. If a party fails to meet its burden of proof by obtaining and introducing competent evidence, it is not the job of the Appeals Board to rescue that party by ordering the record to be developed. (San Bernardino Community Hospital v. Workers' Comp. Appeals Bd. (McKernan), supra; Telles Transport Inc. v. Workers' Comp. Appeals Bd. (2001) 92 Cal.App.4th 1159 [66 Cal.Comp.Cases 1290].) Under the circumstances of this matter, it is not necessary, nor is it appropriate, that we again order further development of the record. Thus, defendant did not meet its burden of proof and applicant is entitled to an un-apportioned award of permanent disability. Therefore, applicant's disability is rated as follows: 16.02.02.00 - 23 - 32 -322G - 35 - 42%.
Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 621 (Appeals Board en banc)
To constitute substantial evidence on apportionment, the physician must explain the nature of the non-industrial factors, how and why those factors cause permanent disability at the time of evaluation, and how and why those factors are responsible for the percentage assigned (Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 621).
Dr. Abelow's reports did not meet this standard and thus were not substantial evidence on apportionment.
From the decision · page 3(Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 621 (Appeals Board en banc).)
What proof carried it
The evidence the panel weighed, by kind.
Dr. Abelow did not explain how and why non-industrial factors caused permanent disability or the assigned percentage in his reports, including the August 9, 2023 supplemental report.
From the decision · page 3August 9, 2023 supplemental report, do not constitute substantial evidence addressing the issue of apportionment. (Escobedo v. Marshalls, supra.)1
The same issues, filtered across the whole corpus — or paste your own facts and let the search rank by factor match.
About this page
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