Authorities as the decision cited them, with how this panel applied each one.
California Labor Code
Labor Code section 4453(c)(1) and (4) regarding determination of average weekly earnings based on earning capacity when other methods cannot be reasonably applied
The WCJ applied these provisions to determine applicant's average weekly earnings based on earning capacity rather than actual earnings.
California Labor Code
Labor Code section 4663 regarding apportionment of permanent disability to non-industrial factors
The WCJ applied this statute to reject defendant's apportionment claims due to lack of substantial evidence.
From the decision · page 4Defendant further contends that Dr. Smith's medical opinion is substantial evidence of
apportionment of applicant's orthopedic disability to non-industrial "other factors" under Labor
Code section 4663. We are not persuaded. Defendant has the burden of proof of apportionment
yet defendant fails to make specific references to the record in support of orthopedic
apportionment, as required by WCAB Rule 10945(b). (Cal. Code Regs., tit. 8, § 10945(b).) The
Appeals Board is not required to search the record to determine whether it contains support for
defendant's contentions regarding apportionment. (See Salas v. Cal. Dept. of Transp. (2011) 198
Cal.App.4th 1058, 1074.)
Appeals Board en banc
Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604 (Appeals Board en banc) regarding the requirement for medical apportionment to be specific and explained
The WCJ applied this case to reject conclusory apportionment opinions lacking explanation.
From the decision · page 4Defendant further contends that Dr. Smith's medical opinion is substantial evidence of
apportionment of applicant's orthopedic disability to non-industrial "other factors" under Labor
Code section 4663. We are not persuaded. Defendant has the burden of proof of apportionment
yet defendant fails to make specific references to the record in support of orthopedic
apportionment, as required by WCAB Rule 10945(b). (Cal. Code Regs., tit. 8, § 10945(b).) The
Appeals Board is not required to search the record to determine whether it contains support for
defendant's contentions regarding apportionment. (See Salas v. Cal. Dept. of Transp. (2011) 198
Cal.App.4th 1058, 1074.)
Appeals Board en banc
Nunes v. State of California, Dept. of Motor Vehicles (2023) 88 Cal.Comp.Cases 741 and 894 (en banc) regarding invalidity of vocational apportionment and requirement for medical apportionment
The WCJ applied these cases to clarify that vocational apportionment is invalid and medical apportionment must be supported by substantial evidence.
From the decision · page 5In reference to apportionment, defendant correctly points out that "vocational
apportionment" is invalid, and that vocational experts must consider valid medical apportionment
found by the reporting physicians. This is confirmed by the Appeals Board's en banc decision in
Nunes v. State of California, Dept. of Motor Vehicles (2023) 2023 Cal. Wrk. Comp. LEXIS 30 (88
Cal.Comp.Cases 741) [en banc] ("Nunes I"), wherein the Board held that vocational evidence must
address apportionment, but such evidence may not substitute impermissible "vocational
apportionment" in place of otherwise valid medical apportionment. An analysis of whether there
are valid sources of apportionment is still required, even when applicant is deemed not feasible for
vocational retraining and is permanently and totally disabled as a result. In such cases, the WCJ
must determine whether the cause of the permanent and total disability includes nonindustrial or
prior industrial factors, or whether the permanent disability reflected in applicant's inability to
meaningfully participate in vocational retraining arises solely out of the current industrial injury.
The Board subsequently re-affirmed these principles in Nunes v. State of California, Dept. of
Motor Vehicles (2023) 23 Cal. Wrk. Comp. LEXIS 46 (88 Cal.Comp.Cases 894) [en banc] ("Nunes
II").