What the panel ordered
Petition for Reconsideration denied.
Petition for Reconsideration filed by defendant after July 25, 2023 Findings of Fact, Award and Order; WCJ report recommends denial of reconsideration.
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.
ApportionmentApplicant prevailedneck · back
The WCJ and WCAB found that the defendant did not meet the burden of proof on apportionment because the QME Dr. Bestard's opinions were contradictory, inconsistent, and not framed in reasonable medical probability, thus not substantial evidence. Therefore, the applicant is entitled to an unapportioned award.
From the decision · page 2We agree with the WCJ that defendant did not meet its burden of proof on the issue of apportionment. "[T]he mere fact that a report `addresses' the issue of causation of the permanent disability and makes an `apportionment determination' by finding the approximate relative percentages of industrial and non-industrial causation does not necessarily render the report one upon which the WCAB may rely." (Escobedo v. Marshalls, CNA Ins. Co. (2005) 70 Cal.Comp.Cases 604, 620 (Appeals Bd. en banc).) We agree with the WCJ that the Qualified Medical Evaluator Dr. Bestard's opinions regarding apportionment were contradictory and inconsistent and therefore did not constitute substantial evidence. Accordingly, we conclude that because there is no substantial evidence that supports valid legal apportionment, applicant is entitled to an unapportioned award. (See id. at p. 611; Nunes v. State of California, Dept. of Motor Vehicles (2023) 88 Cal.Comp.Cases 894, 898 (Appeals Bd. en banc) ["if an evaluating physician identifies apportionment, but the WCJ determines that the apportionment analysis does not constitute substantial evidence and that development of the record is not otherwise warranted, applicant is entitled to an unapportioned award."].)