ADJ18189096 · May 20, 2025

The prior award was not in evidence and the defendant did not meet the burden of proving overlap of disability for apportionment under section 4664(b).

From the decision · page 6and is therefore attributable to the prior industrial injury, for which the employer is not liable. (Kopping v. Workers' Comp. Appeals Bd. (2006) 142 Cal.App.4th 1099, 1115.) Here, the parties stipulated that applicant had a prior award of 19% permanent disability, but it is unclear how the prior disability was calculated as the award is not in evidence. Accordingly, the prior award is not in the record and we cannot review it upon reconsideration.3 The medical reporting that is in evidence from the prior QME established 22% WPI to the lumbar spine using range of motion, which based on the parties' stipulation, exceeds the award itself. It appears that per Dr. Chow's medical record review, the prior QME's opinions on disability may have changed and that defendant may have submitted a stale ratings report in error. The current record does not establish how the prior award was calculated and without such evidence, defendant did not meet its burden of proving that the two awards overlapped. Accordingly, we grant applicant's petition for reconsideration and as our Decision After Reconsideration, we rescind the February 26, 2025 F&A and return this matter to the trial level for further proceedings.

Prior award of 19% permanent disability stipulated but not in evidence

Favours Applicant prevailed

Without the prior award in evidence, apportionment under section 4664(b) cannot be established

From the decision · page 2FACTS Applicant worked as an officer for the California Highway Patrol when he sustained a cumulative injury to his lumbar spine through the period ending on March 24, 2023. (Minutes of Hearing and Summary of Evidence, January 29, 2025, p. 2, lines 3-19.) The parties stipulated that applicant's present level of permanent disability is 54% before apportionment. (Ibid.) The parties further stipulated that: "Applicant received a prior award of 19% disability for the lumbar spine." (Id. at p. 2, lines 17-18.) "The parties have stipulated there is no legal basis for apportionment under Labor Code Section 4663." (Id. at p. 2, lines 18-19.) The primary issue for trial was listed as: "The validity of apportionment under Labor Code section 4664 and whether the current 54% level of disability should be reduced by 19% based on the prior award." (Id. at p. 2, lines 21-23.) Applicant was seen by qualified medical evaluator (QME) David Chow, M.D., who authored two reports in evidence. (Joint Exhibits 1 and 2.) Dr.

Defendant failed to prove overlap of prior and current disability for apportionment

Favours Applicant prevailed

Burden of proof on defendant to show overlap was not met, so apportionment denied

From the decision · page 6and is therefore attributable to the prior industrial injury, for which the employer is not liable. (Kopping v. Workers' Comp. Appeals Bd. (2006) 142 Cal.App.4th 1099, 1115.) Here, the parties stipulated that applicant had a prior award of 19% permanent disability, but it is unclear how the prior disability was calculated as the award is not in evidence. Accordingly, the prior award is not in the record and we cannot review it upon reconsideration.3 The medical reporting that is in evidence from the prior QME established 22% WPI to the lumbar spine using range of motion, which based on the parties' stipulation, exceeds the award itself. It appears that per Dr. Chow's medical record review, the prior QME's opinions on disability may have changed and that defendant may have submitted a stale ratings report in error. The current record does not establish how the prior award was calculated and without such evidence, defendant did not meet its burden of proving that the two awards overlapped. Accordingly, we grant applicant's petition for reconsideration and as our Decision After Reconsideration, we rescind the February 26, 2025 F&A and return this matter to the trial level for further proceedings.

Assigned 28% whole-person impairment using AMA Guides; did not comment on overlap of disability between two injury dates.

From the decision · page 2Chow took a history of cumulative injury and assigned applicant 28% whole-person impairment (WPI) using the Diagnosis Related Estimate (DRE) chart of the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th Edition (2001) (AMA Guides). (Joint Exhibit 2, Report of David Chow, M.D., September 3, 2024, p. 2.) It appears that Dr. Chow reviewed a record of a ratings report from Mark Bernhard, D.O., who evaluated applicant on a prior claim of cumulative injury to the lumbar spine. (Id. at p. 7.) Although applicant had underwent lumbar fusion surgery in June 2017, it appears that Dr. Bernhard rated applicant to 10% WPI. (Ibid.) The parties provided a single report of Dr. Bernhard in evidence. (Joint Exhibit 3, Report of Mark Bernhard, D.O., January 18, 2018.) In that report, Dr. Bernhard rated applicant to 22% WPI based upon a range-of-motion analysis. (Id. at p. 28.) Dr. Chow did not comment upon overlap of disability as between the two dates of injury.

Rated 22% whole-person impairment based on range-of-motion analysis for prior injury; report in evidence but prior award not in record.

From the decision · page 2Chow took a history of cumulative injury and assigned applicant 28% whole-person impairment (WPI) using the Diagnosis Related Estimate (DRE) chart of the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th Edition (2001) (AMA Guides). (Joint Exhibit 2, Report of David Chow, M.D., September 3, 2024, p. 2.) It appears that Dr. Chow reviewed a record of a ratings report from Mark Bernhard, D.O., who evaluated applicant on a prior claim of cumulative injury to the lumbar spine. (Id. at p. 7.) Although applicant had underwent lumbar fusion surgery in June 2017, it appears that Dr. Bernhard rated applicant to 10% WPI. (Ibid.) The parties provided a single report of Dr. Bernhard in evidence. (Joint Exhibit 3, Report of Mark Bernhard, D.O., January 18, 2018.) In that report, Dr. Bernhard rated applicant to 22% WPI based upon a range-of-motion analysis. (Id. at p. 28.) Dr. Chow did not comment upon overlap of disability as between the two dates of injury.

Kopping v. Workers' Comp. Appeals Bd. (2006) 142 Cal.App.4th 1099

Burden of proof on employer to prove prior permanent disability award and overlap for apportionment under Labor Code section 4664(b)

Defendant did not meet burden of proof as prior award was not in evidence and overlap was not established

From the decision · page 5The burden is on the employer to present specific evidence of a prior permanent disability award for which apportionment may be warranted under section 4664(b) and provide medical evidence of overlap. (See Pasquotto v. Hayward Lumber (2006) 71 Cal.Comp.Cases 223 (Appeals Board en banc); United States Fire Ins. Co. v. Workers' Comp. Appeals Bd. (Urzua) (2007) 72 Cal.Comp.Cases 869 (writ den.) [Defendant failed to meet burden of proof on apportionment in the absence of evidence of a prior award of permanent disability by not subpoenaing records from applicant's prior claim].) This burden of proof was thoroughly described by the court in Kopping as follows:

Parties stipulated prior award of 19% permanent disability but prior award documentation not in evidence

From the decision · page 2FACTS Applicant worked as an officer for the California Highway Patrol when he sustained a cumulative injury to his lumbar spine through the period ending on March 24, 2023. (Minutes of Hearing and Summary of Evidence, January 29, 2025, p. 2, lines 3-19.) The parties stipulated that applicant's present level of permanent disability is 54% before apportionment. (Ibid.) The parties further stipulated that: "Applicant received a prior award of 19% disability for the lumbar spine." (Id. at p. 2, lines 17-18.) "The parties have stipulated there is no legal basis for apportionment under Labor Code Section 4663." (Id. at p. 2, lines 18-19.) The primary issue for trial was listed as: "The validity of apportionment under Labor Code section 4664 and whether the current 54% level of disability should be reduced by 19% based on the prior award." (Id. at p. 2, lines 21-23.) Applicant was seen by qualified medical evaluator (QME) David Chow, M.D., who authored two reports in evidence. (Joint Exhibits 1 and 2.) Dr.

Defendant failed to prove overlap of prior and current disability for apportionment under section 4664(b)

From the decision · page 6and is therefore attributable to the prior industrial injury, for which the employer is not liable. (Kopping v. Workers' Comp. Appeals Bd. (2006) 142 Cal.App.4th 1099, 1115.) Here, the parties stipulated that applicant had a prior award of 19% permanent disability, but it is unclear how the prior disability was calculated as the award is not in evidence. Accordingly, the prior award is not in the record and we cannot review it upon reconsideration.3 The medical reporting that is in evidence from the prior QME established 22% WPI to the lumbar spine using range of motion, which based on the parties' stipulation, exceeds the award itself. It appears that per Dr. Chow's medical record review, the prior QME's opinions on disability may have changed and that defendant may have submitted a stale ratings report in error. The current record does not establish how the prior award was calculated and without such evidence, defendant did not meet its burden of proving that the two awards overlapped. Accordingly, we grant applicant's petition for reconsideration and as our Decision After Reconsideration, we rescind the February 26, 2025 F&A and return this matter to the trial level for further proceedings.