ADJ18006784 · October 30, 2023

The WCJ found substantial medical evidence supporting apportionment between the specific injury and cumulative trauma injury but found no substantial evidence to further apportion the cumulative trauma injury among multiple employers due to lack of employment records and testimony.

From the decision · page 5In the Joint F&A, the undersigned WCJ found that the applicant sustained injuries to his cervical and lumbar spine on August 14, 2020 and on a cumulative trauma basis through August 14, 2020. The undersigned WCJ awarded a 19% permanent disability (PD) rating for the specific August 14, 2020 injury after apportionment, and a 27% permanent disability (PD) rating for the CT through August 14, 2020 after apportionment along with an award for future medical care for the neck and cervical spine for both injuries.

Dr. Miles apportioned 60% of the disability to the cumulative trauma injury and 40% to the specific injury based on extensive medical record review.

Favours Defendant prevailed

This medical opinion was relied upon by the WCJ as substantial evidence for apportionment between the two injuries.

From the decision · page 6It is my opinion that for a period of at least one year prior to his work claim he was developing mild symptoms of ha.ck and neck pain that came to the fore once he sustained his work injury on 8/14/20. Approximately 60% of his current disability in my opinion came about cumulatively with 40% a consequence of his specific work injury. (Joint Exhibit J3, Dr. Miles, January 18, 2023, page 9.)

No employment or wage records were submitted to confirm applicant's prior employment history for further apportionment of the cumulative trauma injury among multiple employers.

Favours Defendant prevailed

Lack of such evidence made further apportionment speculative and unsupported by substantial evidence.

From the decision · page 8However, Dr. Miles' reports do not include review of applicant's prior employment records to confirm applicant's statement to him about his employment history. Nowhere in the 1,000+ pages of records reviewed by Dr. Miles was it listed that any employment or wage information was reviewed. And, although Dr. Miles reviewed the applicant's deposition transcript for his initial report, the deposition transcript was not submitted into evidence at Trial, and applicant did not testify at Trial. As such, Dr. Miles' statements that he would apportion the CT injury equally between multiple employers is not supported by substantial evidence, but solely on applicant's verbal statements to him during the first evaluation. Without confirmation of applicant's employment history, further apportionment of the 60% would be speculative.

Applicant did not testify at trial and his deposition transcript was not admitted into evidence, limiting evidence on employment history.

Favours Defendant prevailed

This limited the defendant's ability to prove further apportionment among prior employers.

From the decision · page 6Applicant was not called as a witness at Trial. (MOH/SOE, page 1, line 38.) Applicant's deposition transcript was not admitted into evidence. (MOH/SOE, page 4, lines 9 thru 13.) Applicant provided an offer of proof at Trial stating, "Prior to his injury of August 14, 2020, he had never suffered an injury to his neck or back as a consequence of any work he had ever done." (MOH/SOE, page 4, lines 18-26.) There was no objection to the offer of proof.

Dr. Miles apportioned 60% of the disability to cumulative trauma injury and 40% to the specific injury, but was unsure about further apportionment among prior employers due to lack of employment records.

Dr. Miles reviewed extensive medical records but did not have employment or wage records to confirm applicant's prior employment history, making further apportionment speculative.

From the decision · page 5The parties utilized Dr. Thomas Miles as the Agreed Medical Evaluator for the specific injury on August 14, 2020 and the CT injury through August 14, 2020. Over the course of the claims, Dr. Miles issued three reports (Joint Exhibits J2, J3, J4), and submitted to one deposition. (Joint Exhibit Jl.)

Labor Code section 5500.5(a)

Liability for cumulative injury shall be imposed on the employer during the one year preceding the date of injury or last exposure, without apportionment to prior years.

The WCJ applied this standard to reject defendant's claim for apportionment among multiple employers for the cumulative trauma injury.

From the decision · page 2Labor Code section 5500.5(a) states in relevant part that liability shall be imposed on the employer who employed the employee during a period of one year "immediately preceding either the date of injury, as determined pursuant to Section 5412, or the last date on which the employee was employed in an occupation exposing him or her to the hazards of the occupational disease or cumulative injury, whichever occurs first." Subdivision (a) also states in relevant part that "liability shall not be apportioned to prior or subsequent years" but that evidence of apportionment is admissible.

Labor Code section 4663(a)

Apportionment of permanent disability shall be based on causation.

The WCJ applied this standard to find apportionment between the specific injury and cumulative trauma injury.

From the decision · page 2v. Workers' Comp. Appeals Bd. (2009) 170 Cal.App.4th 1535, 1560 [89 Cal.Rptr.3d 166; 74 Cal.Comp.Cases 113] (Benson).) Labor Code section 4663(a) provides that "[a]pportionment of permanent disability shall be based on causation." Labor Code section 4664(a) provides that: "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." Here, as explained by the WCJ, agreed medical evaluator (AME) Thomas Miles, M.D., determined that applicant's disability caused by his employment as a driver could be divided between his specific injury and his cumulative injury, and the WCJ issued her decision based on that substantial medical evidence.

Labor Code 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 WCJ applied this standard to determine employer liability for the cumulative trauma injury.

From the decision · page 2v. Workers' Comp. Appeals Bd. (2009) 170 Cal.App.4th 1535, 1560 [89 Cal.Rptr.3d 166; 74 Cal.Comp.Cases 113] (Benson).) Labor Code section 4663(a) provides that "[a]pportionment of permanent disability shall be based on causation." Labor Code section 4664(a) provides that: "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." Here, as explained by the WCJ, agreed medical evaluator (AME) Thomas Miles, M.D., determined that applicant's disability caused by his employment as a driver could be divided between his specific injury and his cumulative injury, and the WCJ issued her decision based on that substantial medical evidence.

Applicant's deposition transcript was not admitted into evidence and applicant did not testify at trial, limiting evidence on employment history for apportionment.

From the decision · page 6Applicant was not called as a witness at Trial. (MOH/SOE, page 1, line 38.) Applicant's deposition transcript was not admitted into evidence. (MOH/SOE, page 4, lines 9 thru 13.) Applicant provided an offer of proof at Trial stating, "Prior to his injury of August 14, 2020, he had never suffered an injury to his neck or back as a consequence of any work he had ever done." (MOH/SOE, page 4, lines 18-26.) There was no objection to the offer of proof.

Dr. Miles did not review employment or wage records to confirm applicant's prior employment history, making further apportionment speculative.

From the decision · page 8However, Dr. Miles' reports do not include review of applicant's prior employment records to confirm applicant's statement to him about his employment history. Nowhere in the 1,000+ pages of records reviewed by Dr. Miles was it listed that any employment or wage information was reviewed. And, although Dr. Miles reviewed the applicant's deposition transcript for his initial report, the deposition transcript was not submitted into evidence at Trial, and applicant did not testify at Trial. As such, Dr. Miles' statements that he would apportion the CT injury equally between multiple employers is not supported by substantial evidence, but solely on applicant's verbal statements to him during the first evaluation. Without confirmation of applicant's employment history, further apportionment of the 60% would be speculative.