ADJ1480768 — California WCAB decision

ADJ1480768 · September 15, 2021

The November 13, 2018 Orders Admitting Evidence, Findings of Fact, & Award is rescinded. Issues of permanent disability and attorney fees are deferred and the matter is returned to the trial level for further proceedings.

Issues decided

Medical opinions weighed

Authorities named

District office

Bakersfield

What the panel ordered

Defendant sought reconsideration of the WCJ's November 13, 2018 Findings of Fact & Award, which found 72% permanent disability after apportionment. The Board rescinded the WCJ's decision, deferred permanent disability and attorney fees, and returned the matter for further proceedings.

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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.

Permanent disability ratingRemandedbilateral upper extremities · hands · wrists

Dr. Cohen's report lacked narrative reasoning and did not address impairment in relation to other diagnoses, so it was not substantial medical evidence. The WCJ's rating instructions did not comply with Blackledge, as they improperly directed the DEU to extract impairment ratings from the report rather than listing all impairments. The issue of permanent disability is deferred for further proceedings.

From the decision · page 5The WCJ relied on the July 11, 2018 Recommended Rating to issue a finding of 72% permanent disability. In his report, he recommends that we deny reconsideration asserting that defendant failed to meet its burden of proof on the issue of overlap which the WCJ described as "a sub-species of apportionment for which the employer has the burden of proof."

The rules the panel named

Authorities as the decision cited them, with how this panel applied each one.

Lab. Code § 5952(d); Lamb v. Workmen's Comp. Appeals Bd. (1974) 11 Cal.3d 274, 281; Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312, 317

Any award, order, or decision of the Appeals Board must be supported by substantial evidence.

The Board found Dr. Cohen's report was not substantial medical evidence because it lacked narrative reasoning and did not address impairment in relation to other diagnoses.

From the decision · page 5II. It is well established that any award, order, or decision of the Appeals Board must be supported by substantial evidence. (Lab. Code,1 § 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].) In order to consist of substantial medical evidence on the issues of permanent disability and apportionment, a medical opinion must be framed in terms of reasonable medical probability, it must not be speculative, it must be based on pertinent facts and on an adequate examination and history, and it must set forth reasoning in support of its conclusions. (Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 621-622 (Appeals Board en banc).) Section 4663(a) provides that "[a]pportionment of permanent disability shall be based on causation." (Lab. Code, § 4663(a).) Section 4664(a) states that "[t]he 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.

Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 621-622 (Appeals Board en banc)

A medical opinion must be framed in terms of reasonable medical probability, not be speculative, be based on pertinent facts and an adequate examination and history, and set forth reasoning in support of its conclusions.

Dr. Cohen's report was not substantial medical evidence because it lacked narrative reasoning and did not address impairment in relation to other diagnoses.

From the decision · page 5II. It is well established that any award, order, or decision of the Appeals Board must be supported by substantial evidence. (Lab. Code,1 § 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].) In order to consist of substantial medical evidence on the issues of permanent disability and apportionment, a medical opinion must be framed in terms of reasonable medical probability, it must not be speculative, it must be based on pertinent facts and on an adequate examination and history, and it must set forth reasoning in support of its conclusions. (Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 621-622 (Appeals Board en banc).) Section 4663(a) provides that "[a]pportionment of permanent disability shall be based on causation." (Lab. Code, § 4663(a).) Section 4664(a) states that "[t]he 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.

Lab. Code § 4663(a)

Section 4663(a): Apportionment of permanent disability shall be based on causation.

The Board considered apportionment standards in reviewing the medical evidence.

From the decision · page 5II. It is well established that any award, order, or decision of the Appeals Board must be supported by substantial evidence. (Lab. Code,1 § 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].) In order to consist of substantial medical evidence on the issues of permanent disability and apportionment, a medical opinion must be framed in terms of reasonable medical probability, it must not be speculative, it must be based on pertinent facts and on an adequate examination and history, and it must set forth reasoning in support of its conclusions. (Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 621-622 (Appeals Board en banc).) Section 4663(a) provides that "[a]pportionment of permanent disability shall be based on causation." (Lab. Code, § 4663(a).) Section 4664(a) states that "[t]he 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.

Lab. Code § 4664(a)

Section 4664(a): 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.

The Board considered employer liability for permanent disability in reviewing the medical evidence.

From the decision · page 5Code, § 4664(a).) Overlap occurs when factors of disability resulting from an injury are the same as factors of disability resulting from a different injury.2 (Todd v. Subsequent Injuries Benefits Trust Fund (2020) 85 Cal.Comp.Cases 576, 585 (Appeals Board en banc).) The attribution of overlapping factors of disability to different causes is called apportionment. (Id.) The employer has the burden of proving apportionment. (Kopping v. Workers' Comp. Appeals Bd. (2006) 142 Cal.App.4th 1099, 1114 [71 Cal.Comp.Cases 1229]: Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 613 (Appeals Board en banc).) However, the issue in this case is not overlap or apportionment as between different injuries. Rather, the question in this case is whether duplication exists between factors of disability resulting from a single injury. "Duplication occurs when the combining of different factors of disability does not further reduce an injured workers' ability to compete in an open labor market

Blackledge v. Bank of America (2010) 75 Cal.Comp.Cases 613 (Appeals Board en banc)

It is improper for the WCJ to issue rating instructions directing the DEU rater to read a medical report and extract impairment ratings; the WCJ must list all impairments in the instructions.

The WCJ's rating instructions did not comply with Blackledge, as they improperly directed the DEU to extract impairment ratings from the report rather than listing all impairments.

From the decision · page 6WCJ's responsibility to list all impairments in the instructions to the DEU. It is improper for the

ADJ1480768 · September 15, 2021

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