ADJ2235268 · July 13, 2026

The WCJ's original findings on permanent disability and apportionment were rescinded due to insufficient explanation and failure to comply with legal standards. The Appeals Board found that the defendant did not meet its burden to prove apportionment and that the vocational expert's opinion on permanent total disability was supported, but the matter was returned for further proceedings to develop a complete record and opinion.

From the decision · page 1Applicant and defendant each seek reconsideration of the “Findings and Award” (F&A) issued on March 9, 2026, by the workers’ compensation administrative law judge (WCJ). The WCJ found, in pertinent part, that applicant sustained an industrial cumulative injury through the period ending on November 8, 1993, to his lower back, bilateral knees, and psyche. The WCJ found applicant’s internal injury in the form of internal non-industrial. The WCJ further found that applicant was entitled to temporary disability for the period of May 25, 2010 to present. The WCJ found that applicant’s injury caused permanent partial disability of 94.50%, without apportionment and awarded permanent disability accordingly. Applicant contends that the WCJ erred because injury in the form of internal and in the form of incontinence were caused by his industrial injury and that the reporting of applicant’s vocational expert establishes permanent total disability. Defendant contends that liability for payment of temporary disability benefits should have ceased when applicant was declared permanent and stationary in 2011. Defendant also argues that the apportionment opinions of the agreed medical evaluators (AMEs) constitute substantial medical evidence and should have been followed.

The vocational expert's report demonstrated that the applicant was permanently totally disabled, supporting the applicant's claim despite the AMEs' contrary opinions.

Favours Applicant prevailed

This vocational evidence supports the applicant's claim of permanent total disability.

The WCJ found applicant sustained an industrial cumulative injury to lower back, bilateral knees, psyche, and internal systems through November 8, 1993.

Favours Applicant prevailed

This finding establishes the basis for the injury and the scope of permanent disability to be evaluated.

From the decision · page 1Applicant and defendant each seek reconsideration of the “Findings and Award” (F&A) issued on March 9, 2026, by the workers’ compensation administrative law judge (WCJ). The WCJ found, in pertinent part, that applicant sustained an industrial cumulative injury through the period ending on November 8, 1993, to his lower back, bilateral knees, and psyche. The WCJ found applicant’s internal injury in the form of internal non-industrial. The WCJ further found that applicant was entitled to temporary disability for the period of May 25, 2010 to present. The WCJ found that applicant’s injury caused permanent partial disability of 94.50%, without apportionment and awarded permanent disability accordingly. Applicant contends that the WCJ erred because injury in the form of internal and in the form of incontinence were caused by his industrial injury and that the reporting of applicant’s vocational expert establishes permanent total disability. Defendant contends that liability for payment of temporary disability benefits should have ceased when applicant was declared permanent and stationary in 2011. Defendant also argues that the apportionment opinions of the agreed medical evaluators (AMEs) constitute substantial medical evidence and should have been followed.

The WCJ and Appeals Board found that the defendant did not meet its burden to prove apportionment due to lack of substantial medical evidence and reasoning in the AMEs' reports.

Favours Applicant prevailed

This failure affects the apportionment of permanent disability and the employer's liability.

From the decision · page 8In the WCJ’s Report, she concludes that defendant did not meet its burden to show that apportionment was appropriate. AME Berman and AME Gilberg discuss apportionment, but it is not proper apportionment. Apportionment must discuss the nature of any non-industrial condition, nature of how and why it is causing permanent disability at the time of the evaluation, and how and why it is responsible for the percentage given. (Emphasis added). AME Berman’s and AME apportionment are not substantial medical evidence....

Dr. Gilberg's apportionment opinion was based on Dr. Berman's opinions and personal stressors but lacked proper reasoning and was not substantial medical evidence.

Dr. Gilberg's opinion on apportionment is based on Dr. Berman’s opinions and applicant’s personal stressors without proper explanation.

From the decision · page 8AME Dr. Berman fails to discuss the cause of applicant’s obesity. He does not provide the reasoning behind his conclusions on apportionment. AME Dr. Gilberg opinion on apportionment is based both on Dr. Berman’s opinions on apportionment as well as applicant’s so-called personal stressors. Dr. Berman and Dr. Gilberg do not focus on the reasoning behind their conclusions. Dr. Berman and Dr. Gilbert come to conclusions on applicant without explaining how and why. Defendants have not met their burden to prove apportionment as required under Escobedo.

Dr. Berman's apportionment opinion was found not to be substantial medical evidence due to lack of explanation and reasoning behind conclusions.

Dr. Berman fails to discuss the cause of applicant’s obesity and does not provide reasoning behind apportionment conclusions.

From the decision · page 8AME Dr. Berman fails to discuss the cause of applicant’s obesity. He does not provide the reasoning behind his conclusions on apportionment. AME Dr. Gilberg opinion on apportionment is based both on Dr. Berman’s opinions on apportionment as well as applicant’s so-called personal stressors. Dr. Berman and Dr. Gilberg do not focus on the reasoning behind their conclusions. Dr. Berman and Dr. Gilbert come to conclusions on applicant without explaining how and why. Defendants have not met their burden to prove apportionment as required under Escobedo.

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

The burden of proving apportionment of permanent disability falls on the employer.

The Appeals Board found that defendant did not meet its burden to prove apportionment as required by law.

From the decision · page 6must refer with specificity to an adequate and completely developed record.” (Hamilton v. Lockheed Corporation (2001) 66 Cal.Comp.Cases 473, 476 (Appeals Board en banc), citing Evans v. Workmen’s Comp. Appeals Bd. (1968) 68 Cal. 2d 753, 755 [33 Cal.Comp.Cases 350]).) It appears that the WCJ’s conclusion that applicant is 100% totally and permanently disabled is likely correct. However, the WCJ’s discussion in her Report is cursory, and her opinion does not comply with Hamilton. Thus, we will rescind the F&A and return the matter to her for a complete opinion. B. In its Petition, defendant contends that the WCJ’s conclusion that it had not met its burden on apportionment is incorrect because the AMEs’ conclusions as to apportionment are based on substantial evidence and that applicant’s vocational expert improperly disregarded the apportionment opinions of the AMEs. It has long been established the burden of proving apportionment of permanent disability falls on the employer because it is the employer that benefits from apportionment. (Kopping v. Workers' Comp. Appeals Bd. (2006) 142 Cal.App.4th 1099, 1115 [71 Cal.Comp.Cases 1229]; Escobedo v.

Lab. Code, § 4663(c)

Section 4663(c) requires a physician’s report to include an apportionment determination specifying the percentage of permanent disability caused by industrial injury and other factors.

The Appeals Board held that the AMEs' apportionment opinions were not substantial medical evidence as they lacked proper reasoning and explanation.

From the decision · page 6Section 4663(c) provides, in relevant part:

Nunes v. State of California, Dept. of Motor Vehicles (2023) 88 Cal.Comp.Cases 741

Vocational experts may address issues relevant to permanent disability but may not opine on medical issues such as apportionment.

The Appeals Board noted that vocational evidence must address apportionment but a vocational expert cannot opine on medical issues; the WCJ must consider this in further proceedings.

From the decision · page 7Nunes I further held that section 4663 requires a reporting physician to make medical determinations in a case, including determinations on the issue of apportionment. The Appeals Board further held that vocational evidence may be used to address issues relevant to the determination of permanent disability, and that vocational evidence must address apportionment, but that a vocational evaluator may not opine on issues that require expert medical evidence. The Appeals Board affirmed these holdings in Nunes v. State of California, Dept. of Motor Vehicles (August 29, 2023) 23 Cal. Wrk. Comp. LEXIS 46 [88 Cal.Comp.Cases 894] (“Nunes II”). In sum, a vocational expert is not a medical expert and cannot opine on matters outside their expertise.

The vocational expert's report demonstrated that the applicant was permanently totally disabled, contrary to the AMEs' apportionment opinions.