ADJ7894308 · August 20, 2025

The WCAB found that the notice of contract non-renewal was an actual event of employment and thus not subject to apportionment; the apportionment opinions of the QMEs were not substantial evidence; applicant is entitled to unapportioned psychiatric and sleep-related disability.

From the decision · page 6We find defendant's argument in this respect to be unpersuasive, however, because the undisputed evidence establishes that applicant's psychiatric disability did not arise out of a generalized anxiety or fear of job loss. Rather, applicant's psychiatric disability arose in part from actual notice of non-renewal of his employment contract that occurred some three to four months prior to his last day worked. Framed in terms of the analysis of the Court of Appeal in Bryan, the notice of non-renewal was "something that [took] place" in the employment relationship and arose "out of an employee's working relationship with his or her employer." (Bryan, supra, 114 Cal.App.4th 1174, 1181.)

Notice of contract non-renewal was an actual event of employment and not subject to apportionment as a nonindustrial factor.

Favours Applicant prevailed

This fact led the WCAB to reject apportionment of psychiatric disability to the contract non-renewal and to award unapportioned psychiatric disability.

From the decision · page 6We find defendant's argument in this respect to be unpersuasive, however, because the undisputed evidence establishes that applicant's psychiatric disability did not arise out of a generalized anxiety or fear of job loss. Rather, applicant's psychiatric disability arose in part from actual notice of non-renewal of his employment contract that occurred some three to four months prior to his last day worked. Framed in terms of the analysis of the Court of Appeal in Bryan, the notice of non-renewal was "something that [took] place" in the employment relationship and arose "out of an employee's working relationship with his or her employer." (Bryan, supra, 114 Cal.App.4th 1174, 1181.)

The QMEs' apportionment opinions lacked independent substantial medical evidence and improperly aggregated multiple factors without adequate explanation.

Favours Applicant prevailed

This led the WCAB to reject the apportionment and award unapportioned permanent disability for psychiatric and sleep-related injuries.

From the decision · page 11Similarly, Dr. Pulera describes apportions 70 percent of applicant's sleep-related disability to the emotional sequelae secondary to cardiac disease, 20 percent to "emotional stress of termination," and 10 percent to amalgamated "nonindustrial factors," which include but are not limited to age, genetics, smoking, heart disease and nonindustrial psychiatric factors. (Ex. 5, Report of Mark Pulera, M.D., dated January 9, 2017, at p. 47.) As with the analysis of Dr. Delker, we decline to endorse "pass-through apportionment" from applicant's underlying cardiac injury and further note that the notice of non-renewal of applicant's contract is not subject to legal apportionment. With regard to the final 10 percent attributable to "nonindustrial factors," we observe that the QME has impermissibly amalgamated at least five independent factors of causation into single factor of apportionment. (Ibid.) Moreover, the QME describes the various factors as being "potential" and does not adequately explain how any of the factors are presently manifesting as permanent disability, either individually or in the aggregate. The opinion lacks specificity as to whether the risk factors identified for "heart disease" align or diverge from the apportionment analysis of regular physician Dr. Grodan and fails to identify with specificity the

Diagnosed Major Depressive Disorder and PTSD (resolved); apportioned 80% psychiatric disability to cardiac condition and 20% to contract non-renewal notice; apportionment not accepted by WCAB as contract non-renewal was an actual event of employment.

The notice of contract non-renewal was an actual event of employment and not a proper basis for apportionment.

From the decision · page 5applicant and diagnosed a Major Depressive Disorder and Post-Traumatic Stress Disorder (resolved). (Ex. 7, Report of Leine Delker, Ph.D., dated May 16, 2016, at p. 18.) In subsequent deposition testimony, Dr. Delker attributed 80 percent of applicant's psychiatric disability to his underlying cardiac condition, and 20 percent to the notice that applicant's contract would not be renewed. (Ex. 8, Transcript of the Deposition of Leine Delker, Ph.D., dated December 5, 2016, at p. 19:1.)

Apportioned 70% of sleep-related disability to emotional sequelae secondary to cardiac disease, 20% to emotional stress of termination, and 10% to nonindustrial factors; WCAB rejected pass-through apportionment and found the 10% apportionment improperly aggregated multiple factors without adequate explanation.

Pass-through apportionment not legally sustainable; nonindustrial factors improperly aggregated and not adequately explained.

From the decision · page 11Similarly, Dr. Pulera describes apportions 70 percent of applicant's sleep-related disability to the emotional sequelae secondary to cardiac disease, 20 percent to "emotional stress of termination," and 10 percent to amalgamated "nonindustrial factors," which include but are not limited to age, genetics, smoking, heart disease and nonindustrial psychiatric factors. (Ex. 5, Report of Mark Pulera, M.D., dated January 9, 2017, at p. 47.) As with the analysis of Dr. Delker, we decline to endorse "pass-through apportionment" from applicant's underlying cardiac injury and further note that the notice of non-renewal of applicant's contract is not subject to legal apportionment. With regard to the final 10 percent attributable to "nonindustrial factors," we observe that the QME has impermissibly amalgamated at least five independent factors of causation into single factor of apportionment. (Ibid.) Moreover, the QME describes the various factors as being "potential" and does not adequately explain how any of the factors are presently manifesting as permanent disability, either individually or in the aggregate. The opinion lacks specificity as to whether the risk factors identified for "heart disease" align or diverge from the apportionment analysis of regular physician Dr. Grodan and fails to identify with specificity the

Labor Code section 4663; Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604 (Appeals Bd. en banc)

Apportionment of permanent disability must be based on causation of the disability, not causation of the injury, and must be supported by substantial medical evidence including independent analysis by each physician.

The WCAB applied this standard to reject the QMEs' apportionment opinions as not substantial evidence and to affirm unapportioned disability for psychiatric and sleep injuries.

From the decision · page 7We note, in the first instance however, that "section 4663(a)'s statement that the apportionment of permanent disability shall be based on `causation' refers to the causation of the permanent disability, not causation of the injury, and the analysis of the causal factors of permanent disability for purposes of apportionment may be different from the analysis of the causal factors of the injury itself." (Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 607 [2005 Cal. Wrk. Comp. LEXIS 71] (Appeals Bd. en banc) (Escobedo).) Thus, while a reviewing physician may identify an injured body part or system as causing a collateral injury, correct legal apportionment requires an analysis of causation of the disability rather than causation of the injury.

Applicant's testimony and medical evidence established that psychiatric disability arose from actual notice of contract non-renewal, an event within employment, not generalized anxiety or fear of job loss.

From the decision · page 6We find defendant's argument in this respect to be unpersuasive, however, because the undisputed evidence establishes that applicant's psychiatric disability did not arise out of a generalized anxiety or fear of job loss. Rather, applicant's psychiatric disability arose in part from actual notice of non-renewal of his employment contract that occurred some three to four months prior to his last day worked. Framed in terms of the analysis of the Court of Appeal in Bryan, the notice of non-renewal was "something that [took] place" in the employment relationship and arose "out of an employee's working relationship with his or her employer." (Bryan, supra, 114 Cal.App.4th 1174, 1181.)