What the panel treated as outcome-determinative, and which side it favoured.
Dr. Roland's medical reports did not explain how nonindustrial factors contributed to the applicant's permanent disability impairment.
Favours Applicant prevailed
This lack of explanation led to rejection of apportionment under Labor Code section 4663, supporting the 17% permanent disability rating without apportionment.
From the decision · page 3In the April 5, 2024 report, Dr. Roland apparently copied the text of the May 11,
2020 cervical spine x-ray report, and then stated that there was evidence of
unspecified "prior injuries, impairment or underlying non-industrial pathology"
which contributed to the cervical spine impairment, and apportioned 10% to the
unspecified preexisting pathology. The only other report of Dr. Roland to
discuss impairment for the cervical spine was the November 5, 2020 report. In
that report, the apportionment discussion does not contain the verbatim
transcript of the cervical spine x-ray report, but the analysis again merely
attributing 10% of the impartment to unspecified preexisting pathology with no
further explanation. (Joint Exhibit 103, page 23.) There is no discussion in either
report about what precisely the pre-existing pathology was, let alone a
discussion as to how it contributed to the applicant's current level of impairment.
Without explaining what the pre-existing pathology was, and how and why it
contributed to the current impairment, Dr. Roland's apportionment
determination is not substantial evidence.
Defendant did not present evidence of a prior permanent disability award to support apportionment under Labor Code section 4664.
Favours Applicant prevailed
Without evidence of prior award and overlap, apportionment under section 4664 was properly denied.
From the decision · page 4Here, the defendant did not introduce into evidence or request judicial notice of any prior
award of permanent disability.1 Additionally, any medical reporting that the stipulated award in
the prior case was based on was not admitted into the evidentiary record. Since defendant
presented no evidence at all on the Labor Code section 4664 issue, and in fact defendant did not
specifically raise the issue until its Petition for Reconsideration, the WCJ properly found no Labor
Code section 4664 apportionment. Although the applicant suggests in his Answer that defendant
or its counsel should be "disciplined" for its belated and unsupported contention regarding section
4664 apportionment, we decline the suggestion to impose sanctions.
Applicant was prejudiced by the delay in receipt of Dr. Roland's report during the overpayment period of temporary disability benefits.
Favours Applicant prevailed
This prejudice supported the WCJ's exercise of discretion to deny defendant credit for the overpayment, protecting applicant's permanent disability award.