ADJ8599329 — California WCAB decision

ADJ8599329 · June 21, 2022

The WCAB affirmed the Findings of Fact and Award, denying defendant's petition for reconsideration and rejecting apportionment of permanent disability to the 2016 non-industrial motor vehicle accident or prior industrial injury.

Issues decided

Medical opinions weighed

Authorities named

District office

Marina del Rey

What the panel ordered

Defendant sought reconsideration of the Findings of Fact and Award issued by the WCJ on June 24, 2021, which found applicant sustained new and further disability for the July 16, 2012 injury with 59% permanent disability and an unapportioned award.

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What was disputed, and how it came out

Each issue the panel decided, with the reasoning it gave. An outcome is what this panel did on this record — not a rule, and not a prediction.

ApportionmentApplicant prevailedlumbar spine

Defendant failed to meet burden of proving apportionment to the 2016 non-industrial motor vehicle accident or prior industrial injury due to inadequate medical evidence and lack of proof of overlap with prior disability.

From the decision · page 10In conclusion, defendant did not meet its burden of proving apportionment of permanent disability to the lumbar spine is warranted. Therefore, we will affirm the F&A.

The facts that decided it

What the panel treated as outcome-determinative, and which side it favoured.

What the panel did with the medical opinions

The role the physician served, and the weight the opinion carried. Physicians are named here as the decision names them; we do not score them.

AMERejected · orthopedic

In 2015, provided 24% whole person impairment to lumbar spine with apportionment: 10% non-industrial degenerative disease, 5% prior industrial injury, remainder to 2012 injury. In 2019, opined 50% of increased disability attributable to 2016 non-industrial motor vehicle accident but lacked complete records and explanation for apportionment.

Dr. Angerman's apportionment opinion was based on incomplete medical records and lacked detailed explanation, thus not substantial evidence for apportionment.

From the decision · page 2The parties agreed to use Dr. Alexander Angerman as the orthopedic agreed medical evaluator (AME). In his June 24, 2015 report, Dr. Angerman noted that applicant had a prior stipulated award from March 7, 2007 for 16% permanent disability to the neck, back and bilateral shoulders. (Report of AME Dr. Angerman, June 24, 2015, p. 4.)3 Dr. Angerman provided 24% whole person impairment (WPI) to the lumbar spine. Apportionment for disability to the lumbar spine was: 10% to non-industrial degenerative disease, 5% to the "prior industrial injury already stipulated to" and the remaining attributable to the July 16, 2012 injury. (Id. at p. 5.)

QMERelied upon · psychiatric

Found psychiatric condition predominantly caused by employment but no permanent psychiatric disability.

From the decision · page 2Matthew Steiner, M.D. evaluated applicant in 2014 as the psychiatric qualified medical evaluator (QME). Dr. Steiner found that applicant's psychiatric condition (adjustment disorder with anxious mood) was predominantly caused by her employment. (Report of QME Dr. Steiner, November 7, 2014, p. 3.) He found that applicant does not have any permanent disability on a psychiatric basis. (Id. at p. 4.)

otherGiven great weight

Provided treatment records relevant to the non-industrial motor vehicle accident in 2016.

From the decision · page 3I am now provided with emergency department records dated February 12, 2016 documenting complaints of neck and back pain following a motor vehicle accident on that date. Therefore, the medical evidence does support that, prior to that non-industrial motor vehicle accident, the patient was seen by Dr. Perelman on October 7, 2015 for significant neck and back pain for which physical therapy was recommended per future medical care. However, Dr. Perelman's next report dated March 9, 2016 indicated the patient had increased neck and back pain and this was subsequent to the non-industrial motor vehicle accident of February 12, 2016.... It was noted the patient had returned to work in August of 2016 and this also correlates with her statements made to me.

The rules the panel named

Authorities as the decision cited them, with how this panel applied each one.

Labor Code section 5705; Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604 (Appeals Board en banc); Pullman Kellogg v. Workers' Comp. Appeals Bd. (1980) 26 Cal.3d 450

Employer bears burden of proof to show apportionment of permanent disability based on reasonable medical probability.

Employer must demonstrate legal basis for apportionment with substantial evidence.

From the decision · page 5While the employee holds the burden of proof regarding the approximate percentage of permanent disability directly caused by the industrial injury, the employer holds the burden of proof to show apportionment of permanent disability. (Lab. Code, § 5705; see also Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 613 (Appeals Board en banc), Pullman Kellogg v. Workers' Comp. Appeals Bd. (Normand) (1980) 26 Cal.3d 450 [45 Cal.Comp.Cases 170].) To meet this burden, the employer "must demonstrate that, based upon reasonable medical probability, there is a legal basis for apportionment." (Gay v. Workers' Comp. Appeals Bd. (1979) 96 Cal.App.3d 555, 564 [44 Cal.Comp.Cases 817]; see also Escobedo, supra, 70 Cal.Comp.Cases at p. 620.)

Labor Code sections 4663(a), 4663(c)

Apportionment of permanent disability shall be based on causation; physician reports must include apportionment determination with reasons if unable to apportion.

Physicians must address apportionment in permanent impairment reports.

From the decision · page 5"Apportionment of permanent disability shall be based on causation." (Lab. Code, § 4663(a).) Physicians are required to address apportionment when evaluating permanent impairment. (Lab. Code, § 4663(b)-(c).) Section 4663(c) provides in pertinent part as follows:

Labor Code section 4664(a)

Employer liable only for percentage of permanent disability directly caused by industrial injury.

Determination of employer liability based on causation and apportionment.

From the decision · page 6Section 4664(a) separately states 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." (Lab. Code, § 4664(a).)

Hegglin v. Workmen's Comp. Appeals Bd. (1971) 4 Cal.3d 162

Medical reports are not substantial evidence if based on erroneous facts, inadequate histories, or incorrect legal theories.

Medical opinion based on inadequate history is not substantial evidence for apportionment.

From the decision · page 7"Medical reports and opinions are not substantial evidence if they are known to be erroneous, or if they are based on facts no longer germane, on inadequate medical histories and examinations, or on incorrect legal theories. Medical opinion also fails to support the Board's findings if it is based on surmise, speculation, conjecture or guess." (Hegglin v. Workmen's Comp. Appeals Bd. (1971) 4 Cal.3d 162, 169 [36 Cal.Comp.Cases 93].) Dr. Angerman apportioned to the 2016 non-industrial motor vehicle accident without review of the complete medical records pertaining to applicant's treatment and condition in relation to that accident. Pursuant to Hegglin, a medical opinion based on an inadequate history is not substantial evidence.

Brodie v. Workers' Comp. Appeals Bd. (2007) 40 Cal.4th 1313; Kopping v. Workers' Comp. Appeals Bd. (2006) 142 Cal.App.4th 1099

Determining apportionment requires looking at current disability and parceling out causative sources; subtraction method applies only if prior award and overlap proven.

Apportionment between industrial injuries requires proof of prior award and overlap; not applicable here as new and further disability claim.

From the decision · page 10Defendant also argues for apportionment per section 4664 based on the 26% permanent disability for the lumbar spine due to the July 16, 2012 injury already stipulated to in the 2015 award. Determining apportionment requires looking "at the current disability and parcel[ing] out its causative sources--nonindustrial, prior industrial, current industrial--and decide the amount directly caused by the current industrial source." (Brodie v. Workers' Comp. Appeals Bd. (2007) 40 Cal.4th 1313, 1328 [72 Cal.Comp.Cases 565], emphasis added.) Per Brodie and section 4664, it is proper to apportion between two industrial injuries using the subtraction method where the defendant proves the existence of a prior permanent disability award and that there is overlap between the prior disability and the current disability. (See also Kopping, supra.) The 2015 award was for the same injury for which applicant has shown new and further disability. This is therefore not a "subsequent industrial injury" under section 4664(b). (Lab. Code, § 4664(b), emphasis added.) Applicant is entitled to a new permanent disability award reflecting the total level of disability resulting from the July 16, 2012 injury and defendant is entitled to credit for amounts previously paid as permanent disability. (Shedelbower, supra.) This is precisely what the F&A reflects.

ADJ8599329 · June 21, 2022

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