Apportionment: Case Law Update (January 2013)

“Apportionment: Case law update focusing on themes, trends, and problem areas.”

(2013 Case Update Supplement)

© 2013 Raymond F. Correio, Senior Associate, Pearlman, Borska & Wax; Workers’ Compensation Law Judge (retired); (revised/updated April 12, 2013) This supplement, prior supplements and the primary full outline dated January 2011 (120 pages) can be found at: PBW-law.com under the “News” tab and the “Seminars” sub-tab.

Table of Contents

Introduction: Fundamental Analytical Principles [3]
Valid/Legal Apportionment Determinations [10]
1. Joint Replacement Issues [21]
Failure of Proof (Defense [23]
Overlap Issues (Burden of Proof) [33]
Petitions to Reopen [42]
Benson Issues [45]
LeBoeuf Issues/Considerations [56]
Causation of Disability Versus Causation of Injury [60]

Fundamental Analytical Principles.

Labor Code Section 4663

The following are three critical portions or provisions of Labor Code Section 4663 as enacted by

SB 899 on April 19, 2004:

Apportiomnent of permanent disability shall be based on causation.

Any physician who prepares a report addressing the issue of permanent disability due to a claimed industrial injury shall in that report address the issue of causation of the permanent disability.

“…A physician shall make an apportionment determination by finding what approximate percentage of the permanent disability was caused by the direct result of injury arising out of and occurring in the course of employment and what approximate percentage of the permanent disability was caused by other factors both before and subsequent to the industrial injury, including prior industrial injuries.”

Comments: As reflected in the cases in the outline dealing with causation of injury, A0E/COE as opposed to causation of impairment or disability, Labor Code Section 4663 deals only with causation of permanent disability and not causation of injury.

The other significant issue is the net cast by Labor Code Section 4663 is extremely broad in terms of what may constitute legal apportionment. You will note the reference to “other factors” and not just to injuries or disability. The term “factors” is much broader than an injury whether that injury occurred prior to or subsequent to the industrial injury in question. The critical legal and medical questions to be resolved are to determine all the contributing causal factors of the applicant’s permanent disability and impairment at the time of the MMI evaluation(s) in any case. A “factor” or “factors” that can be a contributing cause of impairment or disability are myriad and contingent on the specific medical record and facts. For example, in a psychiatric case, as indicated by cases in the outline, a “factor” contributing to an applicant’s psychiatric impairment or disability may be a pre-existing personality disorder or other mental condition that is a contributing cause of the applicant’s current psychiatric or psychological disability. As is also demonstrated repeatedly in the outline, a contributing “factor” to disability can be an asymptomatic pre-existing condition so long as that condition is a contributing cause or factor of the applicant’s present impairment, i.e., making it worse than it would have been without the underlying causative factor.

Radical Change

Labor Code Section 4663 has been described in terms of its impact and change on pre-existing apportiomnent law as “radical”, “a diametrical change”, and a “new regime”.

From a historical perspective, it must be kept in mind that from 1932 to 1968, a period of 36 years, the law of apportionment in California was basically the same as it is currently under SB 899, as reflected in Labor Code Sections 4663 and 4664. For the period of 1968 to the enactment of SB 899 in 2004, a span of another 36 years, there was basically very little opportunity for a defendant to obtain valid Labor Code Section 4663 apportionment since the case law during this period essentially placed the burden on defendant to establish injuries and other factors that were labor disabling as a basis for valid legal apportionment. From 1968 to 2004, there was no valid basis for apportionment to pre-existing pathology and other factors that may have been a contributing cause of the ultimate disability in a case if that contributing factor was not labor disabling in and of itself.

The California Supreme Court in Brodie v. WCAB (2007) 40 Cal. 4 th 1313, 72 Cal Comp. Cases 565 discussed in detail the new “regime” of apportionment based on causation. The Brodie Court discussed the distinction and differences in pre-SB 899 Labor Code Section 4663 apportionment and post-SB 899 Labor Code Section 4663 apportionment as follows:

Until 2004, former section 4663 and case law interpreting the workers’ compensation scheme closely circumscribed the basis for apportionment. Apportionment based on causation was prohibited. (Pullman Kellogg v. WCAB (1980) 26 Cal. 3d 450, 454, 45 Cal. Comp. Cases 170)

Under these rules, in case after case courts properly rejected apportionment of a single disability with multiple causes (See, e.g., Pullman Kellogg v. WCAB, supra, 26 Cal. 3d at pp 454-455) no apportionment of lung injury between industrial inhalation of toxic fumes and nonindustrial pack-a-day smoking habit]; Zemke v. WCAB (1968) 68 Cal. 2d 794, 796-799, 33 Cal. Comp. Cases 358] [no apportionment of back disability between industrial back injury and nonindustrial arthritis]; Berry v. WCAB (1968) 68 Cal. 2d. 786, 788-790, 33 Cal. Comp. Cases 352] [no apportionment of knee disability where industrial knee injury triggered “advancement” of previously dormant nonindustrial fungal disease]; Idaho Maryland etc. Corp. v. IAC (1951) 104 Cal. App. 2d 567, 16 Cal. Comp. Cases 146] [no apportiomnent between industrial exposure to mine gas and nonindustrial latent heart disease].” In short, so long as the industrial cause was a but-for proximate cause of the disability, the employer would be liable for the entire disability without apportiomnent.

The Supreme Court, in contrasting current Labor Code Section 4663 with previous apportionment law and principles under Labor Code Section 4663, the Court stated:

The plain language of sections 4663 and 4664 demonstrates they were intended to reverse these features of former sections 4663 and 4750. (Kleeman v. WCAB (2005) 127 Cal. App. 4 th 274, 284-285, 70 Cal. Comp. Cases 133.) Thus, new sections 4663, subdivision (a) and 4664, subdivision (a) eliminate the bar against apportionment based on pathology and asymptomatic causes. (E.L. Yeager Construction v. WCAB (2006) 145 Cal. App. 4 ^th 922, 71 Cal. Comp. Cases 1687; Escobedo v. Marshalls (2005) 70 Cal. Comp. Cases 604,617 (en bane))

Perhaps the most insightful comment or characterization the Supreme Court indicated in the Brodie decision as to the fundamental principle of applying Labor Code Section 4663 as enacted under SB 899 was as follows:

“…the new approach to apportionment is to look at the current disability and parcel out its causative sources, nonindustrial prior industrial, current industrial, and decide the amount directly caused by the current industrial source. This approach requires thorough consideration of past injuries, not disregard of them.”

Perhaps another way of characterizing the fundamental principles of new Labor Code Section 4663 in terms of causation of impairment is that in Brodie, Escobedo, and Gatten a reporting physician under Labor Code Section 4663 must give an opinion and the WCAB to make a finding, on what percentage of applicant’s current overall permanent disability is attributable to each contributing cause industrial or non-industrial. As recognized by the Brodie court, multiple causes frequently interact to cause permanent disability. In essence, the purpose of apportionment is to limit the employer’s liability to that percentage of actual permanent disability caused by the industrial injury, not to determine what the level of permanent disability would have been absent the non-industrial cause.

Basically, Labor Code Section 4663 comports with logic, common sense, and medicine in that with respect to any disability or impairment there may be multiple contributing causes and not one cause. These fundamental principles and concepts must be understood and applied by physicians, lawyers, WCJs as well as the WCAB and the Court of Appeal.

Given the radical change in apportionment under new Labor Code Section 4663, it was understandable that immediately after the enactment of SB 899 there was a very unsettled period of time when both the applicant’s and defense bar expounded different theories and concepts as to the meaning of Labor Code Section 4663 and how it should be applied.

It was not until the WCAB . issued its en bane decision Escobedo that the workers’ compensation community had any clear guidance on how the new apportionment statutes should be implemented. In Escobedo (2005) 70 CCC 604, the WCAB basically provided an analytical roadmap as to the construction and application of the new apportionment statutes. However, a

careful review of numerous WCAB panel decisions in the immediate aftermath of the Escobedo en bane decision demonstrated that both WCJs and the WCAB began to fully comprehend the dramatic and sometimes harsh impact Labor Code Section 4663 would have on many cases. Unfortunately, many of these early panel decisions and decisions from line WCJs continued to mistakenly apply the pre-SB 899 requirement that there had to be an injury or a factor that was labor disabling in order to have valid apportionment under new Labor Code Section 4663.

It was not until the Court of Appeal issued a decision which was certified for publication in E.L. Yeager Construction v. WCAB (Gatten) (2006) 145 Cal. App. 4 ^th 922, 71 CCC 1687 where the Court reversed the WCAB reminding the Board of their own earlier en bane decision in Escobedo and reaffirming the correct legal standards and principles in applying Labor Code Section 4663 apportionment.

The other significant case, as discussed hereinabove, was the California Supreme Court’s decision in Brodie in 2007. (Brodie v. WCAB (2007) 40 Cal. 4 t1 1313, 72 Cal. Comp, Cases

The California Supreme Court articulated a number of core principles with respect to their analysis of Labor Code Section 4663, distinguishing and differentiating it from pre-SB 899 apportionment law and principles.

Labor Code §4664

Labor Code §4664 has three critical provisions.

Labor Code §4664(a) provides as follows: “the employer shall only be liable for the percentage of permanent disability directly caused by the injury arousing out of and occurring in the course of employment.”

Labor Code §4664(b) provides as follows:

If the applicant has received a prior award of permanent disability, it shall be conclusively presumed that the prior permanent disability exists at the time of any subsequent industrial injury. This presumption is a presumption affecting the burden of proof.

Labor Code §4664(c)(1) provides as follows:

The accumulation of all permanent disability awards issued with respect to any one region of the body in favor of one individual employee shall not exceed 100% over the employee’s lifetime unless the employee’s injury or illness is conclusively presumed to be total in character pursuant to §4662. As used in this section, the regions of the body are the following:

Hearing.
Vision.

Mental and behavioral disorders.
The spine.

The upper extremities, including the shoulders.

The lower extremities, including the hip joints.

The head, face, cardiovascular system, respiratory system and all other systems or regions of body not listed in sub paragraphs (a) to (f), inclusive.

Labor Code §4664(c)(2) provides as follows “Nothing in this section shall be construed to permit the permanent disability rating for each individual injury sustained by an employee arising from the same industrial accident when added together from exceeding 100%.

Comment: Subsequent to the enactment of Labor Code §4664, most employers and defendants focused on Labor Code §4664(b) related to the conclusive presumption afforded/aecorded to prior awards of pen -nanent disability. Unfortunately, through evolving case law, what appeared to be a relatively straight forward concept became a quagmire related to burden of proof as to what constitutes an award and defendant’s burden to prove overlapping factors of disability related to prior awards.

For example, many defendants and employers thought that if an applicant had a prior Findings & Award or Stipulated Award to the lumbar spine of 25% under the 1997 Permanent Disability Rating Schedule, and then suffered a subsequent injury to the lumbar spine under the AMA Guides of 30% after adjustment for age and occupation, they would be entitled to a conclusive presumption that the prior permanent disability, i.e. the 25% award existed at the time of the subsequent or second injury.

However, in 2006 the Court of Appeal in Kopping v. WCAB (2006) 142 Cal. App.4 ^th 1099; 71

1229, in a well reasoned decision held that with respect to Labor Code §4664(b) defendants faced a difficult burden of proof. In Kopping, the Court of Appeal held that in each and every case involving Labor Code §4664(b), the defendant had the dual burden of proving the existence of a prior award and more importantly the additional burden of proving the overlap of factors of disability between the prior award and the current award.

As set forth in the primary apportionment outline, dealing with cases up to 2011, under the section dealing with overlap issues (burden of proof) and in this supplemental outline, defendants in case after case have been basically unable to meet their burden with respect to proving or showing the overlap of factors of disability between a prior award under the 1997 Permanent Disability Rating Schedule and the 2005 Permanent Disability Rating Schedule. However, the longer Labor Code §4664(b) remains in effect, the burden of proving overlapping factors of disability will diminish since there will be a prior award under the same Permanent Disability Rating Schedule, i.e., under the 2005 PDRS/AMA Guides. If there is an award and disability is determined under the 2005 Permanent Disability Rating Schedule, and there isfA successive or

later injury also under the 2005 Permanent Disability Rating Schedule/AMA Guides, then defendant will have a much easier time proving overlapping factors of disability.

Substantial Medical Evidence and Correct Legal Standards

As reflected and manifested in many of the decisions in this outline, reports from physicians whether they are AMEs, primary treating physicians, QMEs, or SPQMEs repeatedly fail to apply the correct legal standards with respect to apportionment determinations as outlined by the California Supreme Court in Brodie, by the Court of Appeal in a certified for publication case in Gatten, and the WCAB in their en bane decision in Escobedo.

In terms of assessing and evaluating a physician’s opinion on apportioninent it is critical to determine whether or not the physician has applied the correct legal standard or standards as articulated by the courts in the above referenced cases. In Gay v. WCAB (1979) 96 Cal. App. 3 rd 555; 44 CCC 817, the Court stated, “physicians in workers’ compensation matters must accordingly be educated by the parties of the correct legal standards.” It needs to be emphasized repeatedly that physicians in workers’ compensation matters write “medical-legal reports” not just medical reports. As a consequence reporting physicians must understand and apply the correct legal standards in order to render an opinion that constitutes substantial medical evidence whether that opinion is manifested in the form of a report or during the course of a deposition. “A medical opinion that refuses to accept correct legal principles does not constitute substantial medical evidence.” (Hegglin v. WCAB (1971) 4 Cal. 3d 162; 36 CCC 93;- Zemke v. WCAB (1968) 68 Cal. 2d 794, 33 CCC 358)

In order for a medical report to constitute substantial evidence on the issue of apportionment, a medical opinion “must disclose familiarity with the concepts of apportionment, describe in detail the exact nature of the apportionable disability, and set forth the basis for the opinion.” (E.L.

Yeager Construction v. WCAB (Gatten) (2006) 145 Cal. App. 4 th 992, 71 CCC 1687) A medical opinion based upon an incorrect legal theory is not substantial medical evidence (Hegglin v. WCAB (1971) 4 Cal. 3d 162, 36 CCC 93; Place v. WCAB (1970) 3 Cal. 3d 372, 35 CCC 525)

Also in Blacldedge v. Bank of America (2010) 75 CCC 613, in footnote 10, the WCAB again emphasized it was the duty of the parties to educate reporting physicians as to the utilization of the correct legal standards in every single case. Thus it is important for every evaluating physician to understand all pertinent legal concepts so they may correctly apply those standards to the specific facts of each case.

In terms of reasonable medical probability and substantial evidence, the Court of Appeal in Gay v. WCAB stated:

We do not comprehend how the parties can expect any physician to properly report in workers’ compensation matters unless he is advised of the controlling legal principles. Physicians are trained to discover the etiology of an illness. Finding the cause is important in preventative medicine and curing illness once developed. Legal apportionment is not identical to theories of medical causation. Physicians in workers’ compensation matters must accordingly be educated by the parties in the correct legal standards of apportionment. (Emphasis added)

Labor Code section 4663(c) also indicates that a physician in making an apportionment determination may use an “approximate” percentage in determining industrial causes of permanent disability and non-industrial contributing causal factors. The fact a doctor makes an “estimate” or “approximation” does not render the opinion speculative.

As stated in Anderson v. W.C.A.B. (2007) 149 Cal. App.4 th, 1369, 72 Cal. Comp. Cases 389, 398, the fact that “percentages [of causation of penuanent disability that the physician] provided are approximations that are not precise and require some intuition and medical judgment…does not mean his conclusions are speculative [where the physician] stated the factual bases (sic) for his determinations based on his medical expertise.”

Valid/Legal Apportionment Determinations.

(For earlier cases, please see previous case law update “January 2011”, pages 3-26 at PBW-Law.com )

Allen v. UC San Francisco (2011) 2011Cal. Wrk. P.D. LEXIS 411 (Panel Decision)

Case Summary: Applicant employed as an administrative assistant, suffered a specific injury on January 31, 2006, to her bilateral knees. The WCJ initially issued a Findings and Award awarding the applicant 45% permanent disability without apportionment. Defendant filed a Petition for Reconsideration. The WCAB granted defendant’s Petition for Reconsideration affirming certain portions of the WCJ’s Finding and Award and reversing the WCJ’s finding of no apportionment and instead indicated that applicant should be awarded 24% after the application of valid Labor Code Section 4663 apportiomnent.

Comments/Analysis: Applicant originally injured her right knee on January 31, 2006. This was followed by right knee surgery. However, even before the right knee surgery, applicant as a result of favoring her right knee, developed symptoms to her left knee. Applicant then had left knee surgery.

It is important to note that the non-industrial contributing factors supporting apportionment in this case were the applicant’s long standing morbid obesity as well as documented pre-existing degenerative arthritis. The WCJ in the report on reconsideration, indicated there was no dispute that the “applicant’s long- standing obesity, even as it existed before her industrial injury is a contributing factor”. It appears the Board was concerned the WCJ had applied the pre SB 899 Labor Code Section 4663 “but for” standard of apportionment rather than the correct legal standard which is “to determine the extent the industrial and non-industrial factors contributed to applicant’s permanent disability”.

Koeplin v. Nella Oil Company (2011) 2011 Cal. Wrk. Comp. P.D. LEXIS 35 (Panel Decision)

Case Summary: Applicant a cashier/clerk sustained injury to her low back as a result of a specific injury on November 8, 2001. The reporting physician was an AME in orthopedics. The WCJ issued a Findings and Award in which the applicant received 10% permanent disability after application of valid 50% Labor Code Section 4663 apportiomnent. Applicant filed a Petition for Reconsideration which was denied by the WCAB.

Comments/Analysis: This is an important case in terms of the principle that even though an industrial injury lights up a pre-existing symptomatic or asymptomatic condition, there may be a basis for valid Labor Code Section 4663 apportionment.

In this particular case, it was documented applicant had a history of many years of chronic back pain even prior to the industrial injury of November 8, 2001. Subsequent to the industrial injury of November 8, 2001, applicant also had an incident where her lumbar spine condition was lit up while sitting on the floor wrapping Christmas presents.

The AME in this case set forth a very thorough discussion with respect to Labor Code Section 4663 apportionment. Diagnostic studies supported the fact applicant had significant lumbar spinal degeneration/osteoarthritis. This degenerative condition was an existence at the time of her industrial injury and in fact was lit up by the injury in November 2001. After the November 2001 injury and treatment, she required medication, returned to prior levels of chiropractic adjustments, and returned to full duty and was also employed in a more demanding physical job with another company. Moreover, applicant’s November 2001, spinal injury was lit up again when she was sitting on the floor wrapping presents in December 2007.

Costa v. WCAB (2011) 76 Cal. Comp. Cases 261; 2011 Cal. Wrk. Comp. LEXIS 25 (writ denied)

Case Summary: On August 19, 2002, applicant suffered an injury to his low back, urologic system and GI tract. An MRI of applicant’s lumbar spine that was obtained within 60 days of the injury dated August 19, 2002, showed underlying severe stenosis at L4-5 superimposed on a very large disc herniation. Applicant underwent lumbar spine decompression surgery but awoke paralyzed from the waist down with impotence and complete loss of bowel and bladder control. He was immediately diagnosed with cauda equina syndrome which required emergency surgery.

Applicant’s primary treating physician at the time of the permanent and stationary/MMI evaluation diagnosed cauda equina syndrome, severe lumbar stenosis and a large lumbar disc herniation. He indicated applicant was permanently totally disabled but there was apportionment of 20% of the applicant’s current low back disability to applicant’s pre-existing congenital spinal stenosis. There was also a report from a defense QME in neurology who also indicated that although applicant was 100% permanently totally disabled, 20% should be apportioned to the applicant’s pre-existing congenital spinal stenosis. In essence, the QME in neurology indicated applicant’s pre-existing congenital spinal stenosis pre-disposed him to develop the cauda equina syndrome in the context of the August 19, 2002, specific injury.

Discussion: At the time of trial the WCJ rejected the primary treating physician’s and defense QME’s apportionment determination and awarded the applicant 100% permanent disability without apportionment. Defendant filed for reconsideration arguing there was substantial

medical evidence to justify 20% apportionment of the applicant’s permanent disability to the pre-/1

existing congenital spinal stenosis. The WCAB granted reconsideration and remanded the case for further development of the record, specifically additional opinions from the reporting physicians on the issue of apportionment.

During the course of his deposition, the primary treating physician indicated the reason there should be apportionment to the pre-existing congenital spinal stenosis was because that condition made applicant’s injury and disability worse. The primary treating physician conceded that prior to the industrial injury the applicant had no disability from the congenital spinal stenosis and that it was perhaps a risk factor with regard to the injury. He also testified that he could not say within reasonable medical probability that the congenital spinal stenosis would have caused any problem absent the industrial injury. However, he did indicate applicant’s congenital spinal stenosis did make the injury more severe. The defense QME in neurology during the course of his deposition described the pre-existing congenital condition as a narrowing of the spinal canal making less room for the cauda equina to pass through. He explained the reason he apportioned to applicant’s pre-existing spinal stenosis was because the narrower spinal canal made the applicant’s cauda equina syndrome more severe than it would have been had applicant not had the congenital condition. He also agreed with the primary treating physician that the congenital spinal stenosis would not have led to development of cauda equina syndrome at this point in time absent the industrial injury.

The WCJ issued a second Findings & Award, this time indicating that the applicant incurred 80% permanent disability after valid 20% apportionment. Applicant filed a Petition for Reconsideration. He argued that the opinions of the primary treating physician and QME in neurology did not constitute substantial medical evidence and there was essentially apportionment to a risk factor and applicant’s congenital spinal stenosis was dormant until it was lit up by the industrial injury.

On reconsideration which was granted, the WCAB affirmed the WCJ’s apportionment determination. They noted that both the primary treating physician and defense QME found applicant’s ultimate permanent disability was made worse by the existence of the pre-existing congenital spinal stenosis. The Board stated as follows:

Dr. Kent clearly stated that applicant’s industrial injury would have produced a less severe cauda equina syndrome or perhaps none at all if the congenital narrowing of his spinal canal not been present. Dr. Akmakjian agreed that the pre-existing congenital spinal stenosis made his disability more severe. Thus the WCJ properly apportioned to the cause of applicant’s permanent disability.

With respect to applicant’s argument there was apportionment to a risk factor, the Board indicated the applicant’s pre-existing congenital spinal stenosis went well beyond being a risk factor to being an actual cause of the applicant’s increased permanent disability at the time the applicant sustained his industrial injury.

Also with respect to the argument that the applicant’s congenital spinal stenosis was dormant until the specific injury and was lit up by the industrial injury the WCAB responded that basically the concept of “lighting up” is dead! The Board stated that “now that Labor Code Section 4663 requires that there be apportionment to the cause of permanent disability, the fact that an asymptomatic pathological condition is not labor disabling at the time of the industrial injury, but is lit up by the injury, will not prevent apportionment. (Escobedo v Marshalls (2005) 70 Cal. Comp. Cases 604,611 (en bane)

LaRue v. Nordman, Cormanv, Hair & Compton (2011) Cal. Wrk. Comp. P.D.

LEXIS 37 (Panel Decision)

Case Summary: Applicant, a legal secretary, suffered a May 7, 1997 back injury. In terms of procedural history, the WCJ originally issued a Findings and Award determining the applicant was 100% permanently totally disabled without any basis for apportionment. Defendant filed a Petition for Reconsideration, which was granted. The WCAB rescinded the WCJ’s finding of 100% permanent total disability without apportionment. Applicant’s counsel then filed a Petition for Reconsideration of the WCAB’s decision, which is the subject of this case. The WCAB reaffirmed its decision in rescinding the WCJ’s award of 100% permanent total disability, indicating that 70% of the applicant’s disability was caused by preexisting degenerative scoliosis and only 30% by her industrial injury.

Comments/Analysis: Although this is a panel decision, it is significant in that, when there is a finding or basis for legal apportionment under Labor Code §4663, it can dramatically alter the outcome of a case. In essence, the Board rescinded the WCJ’s decision, remanded the case to the WCJ to review applicant’s permanent disability, incorporating what they determined to be the valid apportionment determination of the defendant’s QME who opined that 70% of applicant’s disability was caused by nonindustrial factors, specifically, the applicant’s preexisting degenerative scoliosis.

Williams v. Apollo Couriers (2011) 2011 Cal. Wrk. Comp. P.D. LEXIS 350

(Panel Decision)

Case Summary: A Findings and Award issued awarding applicant 18% permanent disability after apportionment of 50% to nonindustrial causes. The applicant suffered injury to her neck and upper back, and there was also a third party claim in which the applicant netted $15,000.00. There was a reporting AME in orthopedics. Applicant filed a Petition for Reconsideration essentially arguing and alleging she should have received an unapportioned award.

Comments/Analysis: The AME’s determination of nonindustrial apportionment was based on a combination of diagnostic studies, which included an MRI scan of applicant’s cervical spine showing significant multi-level degenerative disc disease at four levels. The applicant also had

been involved in multiple automobile accidents involving her low back at the age of 17 and again in 1995. Applicant stated or testified she had no residuals from the two prior auto accidents. The AME indicated the documented and established underlying degenerative disc disease was significant with respect to the issue of apportionment. The AME noted that the mechanism related to the specific 2007 injury would not have caused any of the significant degenerative changes in the cervical spine. The major fact that the industrial injury caused the applicant’s significant preexisting degenerative disc disease of the cervical and lumber spine to light up does not preclude apportionment. Therefore, the AME apportioned 50% of applicant’s ultimate disability/impairment to the specific injury and 50% to the underlying degenerative disc disease in her neck and back. The WCJ and the Board characterized the AME’s opinion as substantial and well-reasoned.

Pruitt v. California Department of Corrections, State Compensation Insurance Fund (2011) 2011 Cal. Wrk. P.D. LEX1S 553 (Panel Decision)

Case Summary: This case involves a female inmate firefighter with a specific injury of May 27, 2008, related to her bilateral knees. Applicant was injured while fighting a brush fire and in order to escape from the rapidly advancing fire, she and her supervisor jumped off a six foot embankment. When she was injured, applicant was approximately in the middle of her two year prison sentence. During the time she was incarcerated, she was assigned fire fighting duty and regularly carried a saw, 50 lb. back pack, cutting brush, etc. Her job duties require that she do a great deal of hiking and sand bagging during the fire offseason.

As a result of the specific injury fall on May 27, 2008, she suffered a torn medial meniscus and had chondromalacia involving the right knee and also a torn medial meniscus, chondromalacia and Baker’s cyst to the left knee.

Dr. Smith, the primary treating physician, made a determination that under the AMA Guides, applicant had 13% WPI. However, with respect to apportionment, he indicated that 10% of applicant’s disability was due to degenerative arthritis that pre-existed her incarceration and that 25% of the remaining disability was due to degenerative arthritis that resulted from an un-plead cumulative trauma. Dr. Sobol was the SPQME. Using an Almaraz/Guzman analysis, he indicated applicant had disability of 13% WPI to the right knee and 16% WPI to the left knee. He found no apportionment.

At trial, the WCJ relied on Dr. Sobol’s report and awarded applicant 43% Permanent Disability without apportionment. Defendant filed a Petition for Reconsideration which was granted by the WCAB. The WCAB rescinded the WCJ’s Findings and Award, and returned the matter for further proceedings and a new decision consistent with the Board’s own decision.

Comments/Analysis: Although this case is a panel decision, it is both instructive and illuminating with respect to the core analytical principles involving the correct application of

Labor Code §4663. The other interesting issue in the case is whether a state prison inmate is entitled to the Labor Code §4658(d) 15% increase in Permanent Disability, i.e., the 15% bump up. Also, applicant’s correct occupational Group Number.

With respect to apportionment, the WCAB did a very thorough and comprehensive analysis of the “new regime’ of apportionment, including a detailed analysis and discussion of the three critical cases of Brodie, Yeager (Gatten), and Escobedo. The WCAB panel was highly critical of the WCJ’s reliance on Dr. Sobol’s determination there was no valid basis for Labor Code §4663 apportionment and pointed out the faulty analysis with a direct quote from Dr. Sobol’s report as follows:

In accordance with Senate Bill 899 and Labor Code §4663 and Labor Code §4664, as well as the Escobedo decision, the following is my opinion on causation and apportionment. The patient denies any previous history of injury, symptoms, limitations or impairment relative to the bilateral knees. Based upon the provided history and findings on examination, it is felt that her residual bilateral knee disability/impairment was 100% caused by the work related injury occurring on May 27, 2008.

In this case, there is nothing in the medical records that shows that the patient had any problems with her bilateral knees prior to industrial injury on May 27, 2008. Therefore, there is no substantial medical evidence that [sic] would have had any prior disability or impairment to her bilateral knees absent her industrial injury that occurred on May 27, 2008. Therefore, apportionment to pre-existing or other factors is not warranted.

A close reading of Dr. Sobol’s reasoning reflects that while he indicates a familiarity with Labor Code §4663 and Labor Code §4664, as well as the Escobedo decision, his reason for not finding any valid basis for non-industrial apportionment is basically an application of the pre SB899 apportionment standards.

As the WCAB panel pointed out in their excellent analysis and discussion, the fact there was no previous history of injury, symptoms, limitations or impairment to applicant’s bilateral knees is not a basis for determining whether or not there is a basis for legal apportionment.

The board emphasized that applicant clearly had pre-existing degenerative changes in both knees in the form of degenerative arthritis, as well as a Baker’s cyst. Both of those could not have been the result of a specific injury. Also, before the specific injury of May 27, 2008, applicant had been performing extremely arduous work, mostly in a standing and walking position which would have also contributed to the progressive degenerative condition in her bilateral knees.

The WCAB noted that Dr. Sobol failed to address and answer the critical question required of him by Labor Code §4663 and explained in Brodie, Escobedo and Gatten which is: “what percentage of applicant’s current Permanent Disability was caused by the ii7dustrial injury and

what percentage was caused by other factors, industrial and non-industrial including those factors not apportionable under the old regime?”

Practice Pointer: The author would urge and recommend reading this entire case not withstanding that it is a panel decision. It is a ten page detailed analysis of the correct interpretation and application of Labor Code §4663 under Brodie, Escobedo and Gatten.

See also Swanier v. Western Star Transportation (2013) 2013 Cal. Wrk, Comp. P.D., LEXIS 29 (Panel Decision) WCAB reversed WCJ’s decision of no valid apportionment in a case where applicant suffered a November 2, 2010, specific injury to the left knee among various other body parts. Applicant had suffered a prior non-industrial basketball injury in 1991 to his left knee with surgery and three months off work. The AME based on history, exam, and current MRI showing significant degenerative findings, apportioned 50% of applicant’s left knee disability to the 1991 basketball injury. The WCJ found no substantial evidence to support apportionment. WCAB reversed finding the fact applicant’s left knee was not symptomatic and applicant could perform his job before the injury of November 2, 2010, was irrelevant and not the correct legal standard.

Razle v. WCAB (2012) 77 Cal. Comp. Cases 467 (writ denied)

Case Summary: Applicant, a dental lab technician in a prison, alleged injuries to his right knee and right hip as a result of a specific June 25, 2009, injury. The parties used an AME. The AME in his initial report reviewed applicant’s medical records including MRIs and an operative report. The MRIs showed applicant had a mild medial degenerative joint disease process and the operative report reflected a small anterior patellar osteophyte. The AME determined that 80% of applicant’s disability was industrial and the other 20% attributable to other factors beside the industrial injury. The AME was deposed. During the course of his deposition, the AME testified that not all of applicant’s degenerative changes were the result of the specific June 25, 2009, knee injury. The AME also noted the knee surgery was less than three months after the date of injury and the operative report showed an osteophyte on applicant’s patella which would be related to degenerative changes and not a specific injury. Also during the course of the AMEs deposition, he did acknowledge that the degenerative findings in the right knee were related to the fact that applicant was 64 years old and it was unremarkable for a 64 year old person to have some degenerative changes in their knee.

The case proceeded to trial on the three core issues of ADE/COE, Permanent Disability and apportionment. The WCJ found injury to applicant’s right knee but not his right hip. With respect to apportionment, the WCJ determined that applicant had 10% Permanent Disability after 20% apportionment to pre-existing degenerative changes based on the reporting and deposition of the AME. Applicant filed a Petition for Reconsideration which was granted. The WCJ recommended reconsideration be denied, again reiterating her reliance on the AME’s opinion.

The WCJ emphasized that the AME’s apportionment determination was not based solely on applicant’s age but rather on the operative findings.

The WCAB granted applicant’s Petition for Reconsideration and in turn affirmed the WCJ’s decision by adoption and incorporation. In essence, the WCAB determined the AME and the WCJ did not apportion to age alone. Instead, apportionment was based on the degenerative changes that were objectively demonstrated and applicant’s medical records, i.e., the operative report and the MRIs. With respect to applicant’s contention that apportionment in this case constituted unlawful age discrimination under Government Code §11135, the WCAB noted “that while there may be a relationship between age and degenerative changes, i.e., an increased probability for such changes, that does not mean that apportionment to degenerative changes, when such apportionment is supported by substantial evidence in the record, constitutes age discrimination in every case involving an older person.”

Practice Pointer: This is the second or third decision from the WCAB over the last few years indicating that while age may be a factor in the development of degenerative changes, as long as a reporting physician does not apportion based solely on age and the medical opinion otherwise meets the standards of Escobedo, Gatten and Brodie, then apportionment will more than likely be deemed valid.

Bardley v. R.R. Donnelley Financial, Gallagher Bassett (2012) 2012 Cal. Wrk.

Comp. P.D. LEXIS 224 (Panel Decision)

Case Summary: Applicant filed a specific injury of February 9, 2001, and also a cumulative trauma from June 10, 2000, to June 10, 2001, claiming injuries to bilateral upper and lower extremities, shoulders, neck, back, right hip, rheumatological, internal, head and psyche. Defendant admitted all of the orthopedic body parts except for the right hip and denied all other body parts and conditions.

Following trial the WCJ issued a Findings & Award of 17% permanent disability after valid Labor Code § 4663 apportiominent of 50%. Of interest is the fact applicant was awarded TTD benefits for the period of February 9, 2001, to December 2, 2008, a period of almost seven years!

Reconsideration: Applicant filed a Petition for Reconsideration alleging the applicant was 100% permanently totally disabled and that there was no basis for valid/legal Labor Code § 4663 apportionrnent.

Discussion: This is a case of dueling treating physicians versus multiple QMEs in orthopedics and psychiatry. Applicant’s treating physicians in orthopedics and psychiatry found applicant to be 100% permanently totally disabled. The defense QME reports indicated the applicant was not permanently totally disabled and there was significant apportionment to non-industrial factors.

The WCAB denied applicant’s Petition for Reconsideration affirming the WCJ’s apportionment detprmination.

The basis for the Labor Code § 4663 apportionment of 50% to non-industrial factors was the fact it was documented applicant had underlying significant severe rheumatoid arthritis as well as spondylolisthesis and degenerative disc disease and stenosis. The defense QME in orthopedics exhaustively discussed the medical records including the applicant’s treatment for rheumatoid arthritis by a rheumatologist, medication for the same condition and various diagnostic testing including MRIs, X-rays and EMGs, all of which substantiated the nature and degree of the applicant’s underlying degenerative disease processes.

Moreover, the defense QME in orthopedics described with specificity how and why these various non-industrial factors/conditions were a contributing cause of the applicant’s permanent partial disability.

With respect to the applicant’s psychiatric injury the WCJ and the WCAB also found valid apportionment since the psychiatric injury was derivative of the orthopedic injury.

Torres v. Albertsons (2012) 2012 Cal. Wrk. Comp. P.D. LEXIS 393 (WCAB Panel Decision)

Case Summary: Applicant, a deli clerk, suffered an admitted specific injury on March 25, 2003, and also a cumulative trauma injury both involving the same body parts including right shoulder, cervical spine, lumbar spine and psyche.

Following trial the WCJ issued an Award of 21% related to the specific injury of March 25, 2003, after valid Labor Code § 4663 apportiomnent as well as a separate Award of 35% related to the cumulative trauma also after valid Labor Code § 4663 apportionment.

Discussion: Applicant filed a Petition for Reconsideration indicating the medical reports from the AME and a QME were not persuasive and did not constitute substantial medical evidence with respect to Labor Code § 4663 apportionment.

The AME’s apportionment formula, with respect the cervical spine, indicated one third of the applicant’s disability was attributable to the specific injury, one third to the cumulative trauma injury, and one third to non-industrial factors. With respect to the lumbar spine, the AME indicated that 50% of the applicant’s disability was attributable to the cumulative trauma and 50% related to non-industrial “genetic and habit factors”. The same “genetic and habit factors” formed the basis for the non-industrial apportionment with respect to the specific injury of March 25, 2003. The non-industrial genetic and habit factors referenced related to applicant’s history of diabetes and her obesity.

Applicant’s Petition for Reconsideration basically focused on the argument that the AME’s report did not constitute substantial medical evidence under the GattenlEscobedo standard.

However, the WCAB affirmed the WCJ’s apportionment determination indicating the AME’s report reflected a thorough review of 29 sets of medical records spanning an extensive period of

time from shortly after the date of injury through a period of a few months before the AME issued his report. The report also demonstrated the AME was clearly familiar with the applicant’s medical history as well as more importantly the concepts of apportionment under Escobedo and Gatten. More importantly, the Board stressed that applicant on reconsideration was trying to isolate a single paragraph on a single page of the report rather than analyzing the AME’s report in its entirety. The Board essentially indicated when the AME’s report was reviewed in its entirety, it did meet the substantial evidence standard of both Gatten and Es cob edo .

Briceno v. Los Angeles Unified School District (2012) 2012 Cal. Wrk. Comp.

P.D. LEXIS 226 (WCAB Panel Decision)

Case Summary: Applicant, a teacher’s aide, suffered a specific injury on September 24, 1999. The parties used an AME in orthopedics and there were also respective QME reports from each party dealing with the chronic pain syndrome/rheumatological alleged injuries. Applicant’s QME in rheumatology in dealing with chronic pain syndrome issues indicated the applicant was 100% permanently totally disabled. In contrast, the orthopedic AME indicated 90% of the applicant’s permanent partial disability was attributable to non-industrial factors consisting of significant pre-existing degenerative arthritis and applicant’s exogenous obesity. It is also important to note the applicant’s morbid exogenous obesity was long standing and her pre-existing degenerative arthritis was symptomatic before the industrial injury.

The WCJ issued a Findings & Award finding industrial injury to applicant’s knees, gastrointestinal system (constipation), and psyche. However, there was a finding of no injury A0E/COE related to the applicant’s cervical spine, lumbar spine, upper extremities, hips, and rheumatological system in the form of chronic pain syndrome.

Discussion: Applicant filed a Petition for Reconsideration which was denied by the WCAB.

The WCAB essentially adopted and incorporated the WCJ’s report on reconsideration.

With respect to Labor Code § 4663 apportionment, the AME issued multiple reports and was deposed. There was great emphasis placed on the fact that, with respect to applicant’s bilateral knee impairment/disability, applicant had a well-documented, long standing history of morbid obesity which impacted her lower extremities/knees and also diagnostic X-ray evidence of pre-existing degenerative arthritis which was also documented to have been symptomatic. It was also pointed out the applicant’s degenerative arthritis in the lower extremities was aggravated by her exogenous/morbid obesity. The WCAB found the AME’s report constituted substantial medical evidence based on his thorough discussion of the diagnostic X-ray findings and his familiarity with the basic concepts of apportionment which rendered his opinion of substantial medical evidence in compliance with Gatten and Escobedo.

Williams v. The Boeing Company (2012) 2012 Cal. Wrk. Comp. P.D. LEXIS 396 (WCAB Panel Decision)

Case Summary: Applicant, an aircraft mechanic, was found to have suffered a cumulative trauma injury from 1986 to December 7, 2009, to his hips and low back. Following Trial the WCJ issued a Findings and Award of 72% permanent partial disability without any apportionment to non-industrial factors. Defendant filed a Petition for Reconsideration which was granted. The WCAB granted reconsideration and amended the WCJ’s decision to reflect 15% valid non-industrial apportionment which reduced the Award from 72% down to 66%.

Comments/Analysis: Applicant was a 24 year employee and obviously as an aircraft mechanic had fairly arduous work duties. The reporting physician was applicant’s primary treating physician. It is also important to note the applicant underwent bilateral hip replacement surgery.

Applicant had an extensive medical treatment record. The primary treating physician reviewed all of applicant’s prior medical history in the form of medical records, diagnostic testing, as well as operative reports. The records and diagnostic testing indicated the applicant had significant osteoarthritis in the bilateral hips and had been treated for bilateral hip symptoms a number of years before the end dated of the CT in December of 2009. The primary treating physician noticed that X-rays of the bilateral hips performed almost a year before applicant stopped working revealed severe bilateral hip osteoarthritis. FIowever, given the heavy nature of the applicant’s job duties, the primary treating physician indicated applicant’s job/employment was a major contributing factor and that a small contributing factor was from the pre-existing degenerative changes in the applicant’s bilateral hips. As a consequence, the primary treating physician apportioned 85% of the bilateral hip disability to the industrial cumulative trauma and 15% related to the natural progression of the underlying degenerative process in the bilateral hips.

Applicant petitioned for reconsideration obviously trying to keep the permanent disability above a life pension at 72%. The WCAB went through an extensive discussion of the Escobedo and Gatten decisions in terms of substantial medical evidence and noted the primary treating physician’s opinion in this case met the Escobedo/Gatten substantial medical evidence standard. Moreover, the Board noted the WCJ had applied the wrong legal standard by apparently requiring the defendant show the applicant had pre-existing restrictions or disability in order to establish valid apportionment which the Board noted was no longer required under Labor Code Section 4663 and the decisions in Brodie, Escobedo and Gatten.

1.1 Joint Replacement Issues

(For further detailed discussion of Joint Replacement issues and cases, please refer to prior case law update, “January 2011”, pages 27 to 39 at PBW-Law. com )

Solano County Probation Department v. WCAB (Aguilar) (2011) 76 Cal. Comp. Cases 1, (Court of Appeal, First Appellate District, not certified for publication)

Case Summary: Applicant suffered a cumulative trauma to her left shoulder, left elbow, low back, and left hip as a result of employment with the Solano County Probation Department. The primary reporting physician was an AME in orthopedics. The WCJ did not follow the AME’s opinion that there was significant apportionment, finding applicant entitled to an unapportioned award. Defendant filed a Petition for Reconsideration that was denied, and subsequently filed for a Writ of Review with the Court of Appeal, which was granted. The Court of Appeal annulled the WCAB’s decision and remanded the case for further proceedings.

Comments/Analysis: This case in terms of injuries and apportionment issues, spans the period before SB 899 as well as post-SB 899, and the changes to legal apportionment pursuant to Labor Code §4663. Over the span of several years the AME examined the applicant at least four times, issued several reports, and was deposed once. With respect to applicant’s left hip, in October of 2002, prior to SB 899, the AME indicated applicant did have preexisting arthritis in her left hip, but concluded the arthritis was not symptomatic or disabling; therefore, he indicated all of the applicant’s left hip disability should be apportioned to an industrial cumulative trauma and none to nonindustrial causes.

The AME then examined applicant again in January of 2005 with respect to her left hip after she had hip replacement surgery. He acknowledged in his report the new apportionment requirements under SB 899. He indicated there was, in his opinion, a basis to apportion the applicant’s left hip disability. He apportioned approximately two-thirds of her disability as a direct result of the cumulative trauma and one-third as the result of disease and pathology. In essence, with respect to the left hip disease and pathology, he indicated in his reports and deposition that the nonindustrial causes of applicant’s left hip disability was her obesity and arthritis. He indicated these two factors were connected, in that the arthritis was the cause of the hip injury and that the obesity was at least, in part, the cause of the arthritis, i.e., the arthritis was due to the obesity. With respect to the applicant’s spine/back disability, he initially indicated he believed obesity played a role in her spinal disability to the extent that 10% was the direct result of disease and the pathology of obesity with the remainder to the industrial cumulative trauma. He reaffirmed his prior assessment as to the left hip disability, in that 67% of the disability was a direct result of the cumulative trauma and the remainder going to disease and pathology, inpluding obesity. He reevaluated the applicant in 2006, and again indicated 10% of the spine

disability was the result of pathology due to obesity and approximately 33% of the left hip disability was the result of obesity and arthritic degeneration. He also indicated in his later deposition that the applicant’s arthritis led to her need for hip replacement surgery. In a report subsequent to his deposition in 2007, he revised his opinion on apportionment solely related to the applicant’s spine/back, indicating that he had reviewed new studies and, therefore, was not attributing any of the applicant’s spinal disability to her obesity.

In annulling the WCAB’s decision that there was no basis for apportionment, the Court of Appeal indicated the AME had consistently attributed one-third of applicant’s left hip disability to nonindustrial causes, i.e., arthritis and obesity. He never wavered from this opinion.

With respect to the Escobedo and Gatten standards, the Court of Appeal found the AME’s reports and testimony adequately explained the basis for his opinion on apportionment under the correct legal standards.

Failure of Proof (Defense)

(For earlier cases, please see previous case law update, “January 2011”, pages 40-56 at PBW-Law.com )

Bridgestone Firestone v. WCAB (Fussell) (2011) 76 Cal. Comp. Cases 1326;

2011 Cal. Wrk. Comp. LEXIS 179 (writ denied)

Case Summary: Applicant suffered an admitted industrial injury to his left ankle on May 26, 2004, while employed as a territory manager for Bridgestone Firestone. He remained with his initial primary treating physician for the first year after the injury. Applicant had pre-existing diabetes and there was no documentation or medical records to indicate his diabetes was not fully controlled before the industrial injury of May 26, 2004. In fact, the treating physician indicated applicant had appropriate glycemic and nutrition control with respect to his pre-existing diabetes.

However, applicant’s pre-existing diabetes did complicate the applicant’s healing in recovering from both the industrial injury and two left ankle surgeries he had in June of 2004. Subsequent to his surgeries, applicant began to develop a pressure ulceration on his injured left ankle. Following surgery, applicant was off work for five months and then was released to return to work light duty. Subsequent to the surgeries, he was also using a cane and when possible a wheelchair. However, applicant lived in a second story apartment without an elevator and there were periods of time when he had to leave the wheelchair and essentially hop up a flight of stairs to his apartment which apparently aggravated and complicated his recovery from the two left ankle surgeries. Applicant’s second treating physician recommended another surgery which applicant wanted to proceed with. However, he had a recurrence of left ankle ulcerations primarily related to his diabetic condition which made the proposed surgery inadvisable.

The left ankle ulcerations and other complications ultimately resulted in the necessity of a left below the knee amputation in July of 2006. Applicant was diagnosed with osteomyelitis as well as pressure ulcerations. It was determined that both the osteomyelitis and pressure ulcerations were essentially caused by a prescribed left ankle brace by applicant’s first primary treating physician.

Discussion: In February 2011, the WCJ issued a Finding & Award awarding the applicant 100% permanent total disability without apportionment. The WCJ determined the amputation itself was a direct result of applicant’s industrial injury without any apportionment related to the contributing factor of applicant’s underlying diabetes. Defendant filed a Petition for Reconsideration contending there should be some apportionment pursuant to Labor Code § 4663 related to applicant’s underlying diabetic condition which they contended was a contributing factor in his ultimate disability/impairment. Basically the WCAB in denying defendant’s Petition for Reconsideration, followed the WCJ’s reasoning, relying on persuasive medical

evidence that although applicant was a diabetic, he did not develop his ulcerations, osteomyelitis, and Charcot joint prior to the industrial injury. There was no evidence indicating the normal progression of applicant’s diabetes would have resulted in the below the knee amputation. The WCJ concluded it was applicant’s industrial left ankle injury, the non-union ankle joint and the first two failed ankle surgeries in June of 2004, as well as the ill advised recommended braces that aggravated applicant’s asymptomatic and non-disabling diabetic neuropathy and caused a Charcot joint, pressure ulceration and severe left ankle varus deformity leading to amputation as opposed to the applicant’s underlying previously well controlled diabetes.

Edwards v. SCIF (2011) 2011 Cal. Wrk. Comp. P.D. LEXIS 429 (Panel Decision)

Case Summary: Applicant was employed by the State of California as a highway maintenance lead worker. She suffered admitted industrial injuries to her head, neck, brain, and psyche on August 22, 2005, and to her left ankle on October 11, 2002. It is important to note applicant’s brain/head injury resulted in a traumatic brain injury, leading to dementia. The WCJ awarded 88% permanent disability after 15% apportionment related to applicant’s pre-existing attention deficit hyperactivity disorder (ADHD). Applicant filed a Petition for Reconsideration essentially arguing she should receive 100% permanent total disability without apportionment and she should be deemed to have a presumed permanent total disability under Labor Code Section 4662 related to “incurable mental incapacity”. The WCAB reversed the WCJ, rescinding the Joint Findings and Award returning the matter for a new decision indicating applicant should receive an award of 100% permanent total disability without apportionment.

Discussion: This case is interesting based on two different aspects. The formal rating instructions from the WCJ included among several factors that “applicant is totally precluded from the open labor market.” There is a discussion by the WCJ in the report on reconsideration, that under the 2005 permanent disability rating schedule, permanent total disability represents the level of disability at which the employee has sustained a total loss of earning capacity. The Board also discussed the rather troublesome provision of Labor Code Section 4662 related to situations and circumstances in which permanent and total disability is presumptively found. Except for these presumptive cases, “in all other cases, permanent and total disability shall be determined in accordance with the fact”. There is a very refined and elaborate discussion of the interplay between Labor Code Sections 4658(d), 4659(b), and Labor Code Sections 4660, and 4662. The Board noted that Labor Code Section 4658(d) covers disabilities from 0%-99.75%. However, computation of any benefit owed when there is a permanent total disability is governed by Labor Code Section 4659(b). Because there are separate sections for computing disability payments in the cases of partial and total permanent disability, which lends support to the view there is a legally significant difference between disabilities that are a percentage of total disability and those that are total.

The Board indicated that Labor Code Sections 4662 and 4659(b) establish separate statutory provisions may apply in cases of permanent total disability. They also noted that Section 4662 was unchanged by SB 899. In part it provided “permanent and total disability shall be determined in accordance with the fact”. The Board also acknowledged this language had not been definitively interpreted in a binding appellate or en bane decision. However, they indicated or characterized it as appearing to authorize a finding of permanent total disability based on an evaluation of the evidentiary record of an individual case.

The Board noted both the AME and the WCJ in this case concluded applicant was totally precluded from the open labor market. The Board then cited the Ogilvie decision which indicated there was no meaningful difference between the old characterization of ability to compete in the open labor market standard and the new “diminished future earning capacity” standard.

With respect to the Labor Code Section 4663 issue of whether there should be any valid legal apportionment to applicant’s preexisting ADHD and depression, the Board noted that when an injured worker sustains a total and disabling industrial injury and an opinion indicates that a pre-existing condition probably had adverse effects but was not in fact disabling is not necessarily a sufficient basis for legal apportiomnent. The Board did acknowledge that ratable disability prior to the industrial injury was not required under Labor Code Section 4663. They concluded that “however, in a case such as this one, where applicant’s industrial traumatic brain injury with resulting dementia was, in itself, totally disabling, apportionment to her pre existing, non-disabling, non-industrial condition would make sense only if percentages of permanent disability could exceed 100 percent”.

For another interesting case applying Labor Code § 4662’s language that a presumptive 100% permanent total disability case can be “determined in accordance with the fact”, see Martinez v. Southern California Edison (2012) 2012 Cal. Wrk. Comp. P.D. LEXIS 586 (Panel Decision). “There are four categories listed in Labor Code § 4662 where permanent total disability is presumed. The applicant in these cases does not fall into any of these four categories. But Labor Code § 4662 goes on to state: “In all other cases, permanent total disability shall be determined in accordance with the fact.”

Sean Gilbert v. Oakland Raiders; ACE USA, Administered by ESIS (2012) 77

Cal. Comp. Cases 457

Case Summary: Applicant was a professional football player in the NFL for eleven seasons. He played for four different teams. The last team he played for was the Oakland Raiders in his NFL season in 2003 when he played in six games. However, the entire Labor Code Section 5500.5 liability period was with the Oakland Raiders. The WCJ issued an Award of 100% permanent total disability without any apportionment. Predictably, defendant filed a Petition for Reconsideration indicating that applicant’s QME failed to properly address issues of causation and apportionment between the applicant’s impairment and disability arising out of his

employment with the Oakland Raiders and those related to prior injuries he had with previous employers. There was also an issue with respect to whether or not the WCJ determined the correct rate for permanent disability.

Discussion: Given the fact this was a pre-2005 injury, respective counsel selected their own reporting QMEs. The defense QME, in a succession of reports, postulated an apportionment opinion based on a formula of the percentage of time the applicant played for each NFL team over his eleven year career. Evidently the defense QME had been provided with information with the precise number of plays in which the applicant had participated for each team.

In contrast, applicant’s reporting QME opined applicant’s permanent total disability was attributable to a continuous trauma sustained throughout his career as a professional football player and there was no evidence of non-industrial disability or other factors both before and subsequent to the industrial injury that could be apportioned to. Applicant’s QME also issued a lengthy rebuttal of the formula used by the defense QME based on a percentage of time applicant played for each team.

It is important to note that for some unexplained reason defense counsel never cross-examined applicant’s QME notwithstanding the potential for a 100% permanent total disability finding.

The WCAB, in denying defendant’s Petition for Reconsideration, essentially characterized it as a failure of proof pointing out defendant had failed to cross-examine applicant’s QME and it was defendant’s burden to prove apportionment citing the Kopping case.

Commissioner Moresi dissented, indicating applicant’s QME’s opinions and reports did not constitute substantial medical evidence in view of applicant’s multiple injuries and medical treatment prior to his employment with the Oakland Raiders and recommended the case should be remanded for further development of the record citing Benson and Escobedo cases.

Comments: This is a classic failure of proof. Evidently defense counsel had come up with a theory that he could somehow premise valid Labor Code Section 4663 apportionment on a percentage of plays the applicant had participated in for each of his NFL teams. It is unclear from the present record whether defense counsel even established a record via the applicant’s deposition and medical records as to prior specific injuries the applicant may have suffered before he played for the Oakland Raiders or possibly a separate cumulative trauma. In any event, the failure to cross-examine applicant’s reporting QME is mystifying!

This decision also requires some analysis and clarification of the interaction between the Benson case and Labor Code Section 4663. The author’s analysis and review of the Benson case is that the focal issue of apportionment is between successive injuries where there is established California jurisdiction resulting in separate ADJ case numbers. There are no reported cases that

the author is aware of under Benson where California jurisdiction is at issue as to successive injuries.

The real issue in this case is not whether there it is to be a joint or separate Award, but rather strictly whether there are factors that contributed to the applicant’s final level of impairment or disability that did not relate to his employment with the Oakland Raiders. In this situation, jurisdiction is irrelevant. For example, if part of the applicant’s impairment or disability related to his lumbar spine, and he suffered a specific lumbar spine injury while playing for another NFL team where he may have received treatment beyond first aid after the incident or lost time as manifested in practices or NFL games, then there clearly would be a potential basis for Labor Code Section 4663 apportionment of the Oakland Raiders liability to factors other than his employment with the Raiders.

State Compensation Insurance Fund v. WCAB (Luis) (2012) 77 Cal. Comp. 470; 2012 Cal. Work Comp. LEXIS 46 (writ denied)

Case Summary: Applicant, an assistant cook, suffered a specific injury on March 28, 2003, to her left knee and psyche. In addition, she suffered a cumulative trauma injury to her left knee from December 21, 1994 to February 28, 2003. The case has a rather complicated procedural history. In 2008, at the trial level the WCJ found 100% permanent total disability with no apportionment. Defendant filed for reconsideration and among the issues raised and addressed were whether the 1997 rating schedule should have been used. The WCJ indicated that whether the 1997 or 2005 PDRS was used, that based on the opinion of the AME and the vocational expert, the applicant was 100% Permanently Totally Disabled with no apportionment. With respect to the issue of apportionment, the AME provided conflicting inconsistent opinions on the issue of apportionment, in that he did not explain “how and why” other factors were a contributing cause of applicant’s permanent total disability.

Initially, the WCAB granted reconsideration and returned the matter to the trial level to develop the record with respect to a supplemental report from the AME explaining the AME’s basis for finding applicant suffered a CT injury and also to explain the basis for the AME’s apportionment opinion. What is important is that the WCAB agreed that the AME’s previous opinions on the issue of apportionment were contradictory and inconsistent.

On remand, the WCJ ordered the parties to develop the record. The AME submitted two supplemental reports and his deposition was taken. The matter proceeded to trial a second time. Again, the WCJ issued a Finding & Award, finding applicant was 100% permanently totally disabled. The WCJ also determined that apportionment of applicant’s Permanent Disability between the specific and cumulative injuries or to non-Mdustrial factors was not supported by substantial evidence. Defendant once again filed a Petition for Reconsideration.

It is important to note that applicant did have a knee replacement. Evidently, the AME in his supplemental reports on remand and during the course of his deposition determined the only basis for finding a CT injury and apportioning 25% of the PD to that injury was the fact that meniscus injuries involving a knee with pre-existing arthritis had a lower success rate with surgery than knee operations where there was no arthritis. The WCJ and WCAB focused on the AME’s rather questionable reasoning and analysis as to the purported basis for apportionment which consisted of the following:

You have a thought process you go through. You have an experience process you combine with your thought process. And I came up with [what]. That was my thought. There was arthritis there. It was asymptomatic. There was a stress injury associated with a meniscal pathology which would have responded well if she had no arthritis in the knee. It did not respond. And 25% of the reasons she does not respond is the arthritis.

The WCJ and in turn the WCAB determined the AME was phrasing his opinions regarding apportionment in terms of a bare conclusion without an explanation to support his opinions. The AME failed to explain how and why each injury had caused applicant’s residual Permanent Disability. More importantly, the AME did not explain how the arthritis caused 25% of applicant’s PD, when the arthritis was no longer present following the total knee replacement operation. The WCAB and the WCJ concluded the AMEs failure to adequately explain the basis for his opinions on apportionment was fatally defective. The WCAB upheld the WCJ’s determination of 100% Permanent Total Disability without apportionment and the only issue the case was remanded on was the correct calculation of the percentage to use as the projected annual increase for the SAWW.

Comments/Analysis: This case involves two critical issues. The first involves Labor Code §4663 apportiomnent to non-industrial factors. It appears clear from the record in this case that applicant did have significant pre-existing degenerative arthritis in the left knee that resulted in a knee replacement. In a line of prior decisions, the board has consistently indicated that with respect to joint replacement, including knee replacements that there will generally be apportionment and the removal of the diseased joint is not a basis to bar Labor Code §4663 apportionment. The critical question is whether or not the underlying degenerative condition, i.e., arthritis caused the need for the knee replacement and if so, then it is just a determination of a percentage of apportionment based on the severity of the pre-existing degenerative condition. Therefore, if the AME in this case had been questioned and was aware of this line of cases, there was a distinct possibility that defendant could have obtained valid Labor Code §4663 apportionment. The second critical issue is whether or not there should be apportionment of disability between the two successive injuries, i.e., the February 28, 2003 specific injury and the cumulative trauma injury. Based on the Benson line of cases set forth in this outline, both the specific and cumulative trauma injuries contributed to applicant’s overall permanent disability. The real defect here is that the AME in multiple reports and during deposition appeared to be unaware of the critical concepts and principles underlying Labor Code §4663 and therefore,

could not set forth the “how and why” opinion that constitutes substantial medical evidence under Escobedo and Gatten.

Hill v. Securitas Security Services USA, Inc. (2012) 2012 Cal. Wrk. Comp. P.D.

LEXIS 294 (Panel Decision)

Case Summary: The applicant while employed as a security guard was participating in an employer required physical endurance test when he suffered a stroke. He did have an underlying hypertensive condition and was not taking his anti-hypertensive medication at the time he suffered the stroke.

Following trial, applicant was deemed to be 100% permanently totally disabled. Defendant filed a Petition for Reconsideration.

Discussion: The reporting physician was an AME. He initially opined that applicant’s stroke was caused by a combination of the physical endurance test and applicant’s failure to comply with the prescribed medication for his underlying hypertension. He indicated applicant was permanently totally disabled and unemployable but he apportioned 60% of the applicant’s disability to the stroke that occurred during the endurance test and 40% to pre-existing, non-industrial factors, i.e., the underlying hypertensive condition for which the applicant was not taking his prescribed medication. He indicated that if the applicant had been compliant with his hypertensive medication, the stroke would have resulted in a lesser degree of impairment.

This case deals with the conclusive presumptions of Labor Code § 4662(d) and the various conditions and body parts that are conclusively presumed to be permanently and totally disabling. Applicant fell under Labor Code § 4662(d) “an injury to the brain resulting in incurable mental incapacity or insanity.”

The Board denied defendant’s Petition for Reconsideration in which they asserted there was a valid basis for apportiomuent based on the AME’s report. The Board essentially concluded that when there is a conclusive presumption of permanent total disability, there can be no valid legal apportionment pursuant to either Labor Code § 4663 or 4664(b).

For another interesting case dealing with the Labor Code section 4662 “conclusive presumption” see, Cruzaley v. Spin Cycle Coin, SCIF (2012) 2012 Cal.Wrk. Comp. P.D. LEXIS 509 (WCAB panel decision). Applicant was legally blind in both eyes. Blindness in the left eye was caused by a 2004 industrial injury. However, blindness in the right eye resulted from non-industrial cataract surgery several years later. The WCJ found applicant to be 100% PTD based on the conclusive presumption of Labor Code section 4662(a). Defendant’s reconsideration was granted by the WCAB and the WCJ’s decision was rescinded. The WCAB ruled that in order for the 4662 conclusive presumption to apply, the cause of applicant’s blindness in both eyes had to

be industrial. Since only the blindness in one eye was attributable to an industrial injury the conclusive presumption did not apply.

Thomas v. Lonk Beach Unified Schools (2012) 2012 Cal. Wrk. Comp. P.D.

LEXIS 317 (WCAB Panel Decision)

Case Summary: Applicant was employed as an office assistant. Following Trial the WCj issued a number of Awards. With respect to a cumulative trauma injury from 1993 to June 26, 2000, involving injuries to her bilateral wrists, low back, right shoulder and neck the WCJ awarded 34% permanent partial disability after apportionment. With respect to a specific injury of April 23, 1998, to the applicant’s back and left shoulder the WCJ awarded 20% permanent partial disability after apportionment. Applicant filed a Petition for Reconsideration which was granted. The WCAB rescinded the WCJ’s determination on the issue of apportionment, and returned the matter back to the trial level for further development of the medical record with respect to the AME’s apportionment determinations.

Discussion/Analysis: The reporting AME in orthopedics based his apportionment determination on a number of non-industrial factors including obesity which he indicated had played a significant role in development of the applicant’s extensive degenerative arthritis as well as prior non-industrial injuries. He also noted 1997 MRI findings indicating the applicant’s degenerative joint disease condition had been slowly progressing over a number of years. In essence he concluded there were extensive degenerative changes that existed and were greater than what could be reasonably expected on the basis of the applicant’s work exposure on either a cumulative trauma basis or specific injury basis. The AME’s deposition was also taken.

In opining that the AME’s opinion on apportionment did not constitute substantial medical evidence, the WCAB engaged in an extensive discussion as to the correct/applicable legal standard under Escobedo and Gatten.

In essence the WCAB found the AME in this particular case had rendered opinions on apportionment that were merely conclusionary and he failed to explain “how and why” the industrial injury was responsible for approximately 50% of the disability and also failed to state his opinion on apportionment in terms of reasonable medical probability.

As a consequence the Board remanded the case back down to the trial level for a supplemental report from the AME in order to allow the AME to fully explain any factors which support his previous apportionment determination.

Best Buy Company, Inc.; Ace American Insurance Company v. WCAB (Nguyen)

(2012) 2012 Cal. Wrk. Comp. LEXIS 152 (writ denied)

Case Summary: Applicant, a repair technician for Best Buy, initially alleged a cumulative trauma from January 1, 1999, to August 20, 2001, as well as a specific injury of August 20, 2001. It should be noted the cumulative trauma was significant in the sense it led to nine separate surgeries. There was a Joint Findings and Award and Order in which the WCJ found that applicant suffered a cumulative trauma resulting in 100% permanent total disability without apportionment and he did not sustain the August 20, 2001, specific injury.

There was a reporting AME in orthopedics in the case who, contrary to the judge’s decision, indicated there was significant non-industrial apportionment. The AME indicated with respect to the applicant’s cervical spine disability that applicant had suffered a specific non-industrial traffic accident on October 7, 2001, two months after the alleged specific industrial injury which required several months of treatment and applicant had no other cervical spine complaints before the injury. The AME described the non-industrial October 7, 2001, traffic accident as more significant than any other alleged injury to the applicant’s cervical spine. As a consequence the AME apportioned 60% to the October 7, 2001, non-industrial traffic accident, 20% to a non-industrial continuing trauma at home and 20% to the industrial cumulative trauma. With respect to the lumbar spine, the AME originally apportioned 20% to a non-industrial cumulative trauma, 40% to the cumulative trauma at work, and 40% to the alleged specific injury of August 20, 2001. The AME also indicated that with respect with the applicant’s heel condition, 50% was apportioned to non-industrial weight bearing, 25% to the specific injury of August 20, 2001, and 25% to the industrial cumulative trauma.

The WCJ rejected the AME’s apportionment determination essentially indicating the AME failed to adequately explain the rationale behind his opinion on apportionment. The WCJ concluded the AME’s opinion did not constitute substantial evidence under either Escobedo or Gatten.

Defendant filed for reconsideration alleging the WCJ should have followed the AME’s apportionment determination.

Comments/Analysis: This is a case where it appears based on at least some of the medical evidence, there was a basis for legal apportiomnent related to the cervical spine especially to the subsequent non-industrial traffic accident of October 7, 2001, which occurred two months after the industrial specific injury in the case. The AME indicated the subsequent non-industrial traffic accident required several months of treatment and applicant did not have any cervical spine complaints of any note before the subsequent non-industrial specific traffic accident.

However, it appears the WCAB in affirming the WCJ’s rejection of the AME’s apportionment formula was correct in that the AME failed to discuss the how and why and related analysis as to why 50% of the applicant’s non-industrial weight bearing was a contributing cause of his heel disability and also failed to explain how 20% of his lumbar spine disability was caused by a non-

industrial cumulative trauma injury. Also with respect to the cervical spine, there was no explanation as to what constituted a continuing trauma at home which resulted in 20% non-industrial apportionment of the applicant’s cervical spine disability.

The failure of proof in this case is based on the fact the defendant relied on basically mere percentage figures and did not follow up by deposing the AME to allow the AME to give or provide a more detailed adequate explanation to support his apportionment determination/formula. As the Board indicated:

No where in his opinions does Dr. Alban adequately explain his attribution of disability to “continuing trauma at home,” in that he does not specify how and why applicant’s activities of daily living contributed to the extent of his disability. Similarly, Dr. Alban’s apportiomnent determination as to applicant’s neck disability does not adequately explain how the subsequent motor vehicle incident of October 7, 2001, which applicant indicated resolved after two months, was the source of 60% of his disability.

In summary there was no way for the defendant to get around the fact the applicant had suffered a significant cumulative trauma injury that required nine separate surgeries. As indicated hereinabove, the editor believes there was probably a strong basis for some apportionment of the applicant’s cervical spine disability to the non-industrial traffic accident of October 7, 2001, and in the editor’s opinion the AME did give an adequate explanation with respect to the basis for apportioning 60% of the applicant’s cervical spine disability to that subsequent non-industrial traffic accident.

Overlap Issues (Burden of Proof).

(For earlier cases, please see previous case law update, “January 2011”, pages 60-84 at PBW-Law.coin)

Robinson v. WCAB (County of Sonoma) (2011) 76 Cal. Comp. Cases 847; 2011

Cal. Wrk. Comp. LEXIS 112 (Writ denied July 21, 2011; Writ of Review filed with Supreme Court denied on September 14, 2011)

Case Summary: This is an extremely complicated case procedurally, medically and factually. Applicant was employed as a correctional officer and originally suffered an admitted low back injury on November 25, 2001, which resulted in a 21% Stipulated Award issued on September 24, 2004. Applicant then suffered a subsequent admitted neck injury on June 27, 2005.

Procedural History/Chronology: The original Findings & Award issued by the WCJ in this case was on October 29, 2008, in which applicant was awarded 8% permanent disability for the specific June 27, 2005, neck injury after apportionment pursuant to both Labor Code Sections 4663 and 4664. Applicant filed for reconsideration alleging the WCJ committed error by apportioning 21% permanent disability from the prior Stipulated Award to the applicant’s low back related to a specific injury of November 25, 2001. The WCAB granted reconsideration and rescinded the October 29, 2008, Findings & Award and returned the matter to the trial level for further development of the record and further proceedings related specifically to the issue of apportionment.

Subsequent to the remand by the WCAB, applicant had what appears to be another cervical spine surgery. On September 13, 2010, the WCJ issued a second Findings & Award that determined applicant’s June 27, 2005, neck injury caused permanent disability of 12% after apportionment under both Labor Code Sections 4663 and 4664.

Applicant again filed a Petition for Reconsideration which was denied by the WCAB majority panel on April 25, 2011, with Commissioner Caplane dissenting.

Applicant’s argument on reconsideration was essentially there was no evidence that the Legislature in enacting SB899 intended for both Labor Code Section 4663 and 4664 to be applied concurrently to the same case. In addition, with respect to the prior Award of 21% to applicant’s low back, defendant failed to prove overlap essentially arguing the prior Award of September 24, 2004, was under the 1997 Peimanent Disability Rating Schedule and the current neck impairment or disability for the June 27, 2005, neck injury was under the 2005 Permanent Disability Rating Schedule.

In the Report on Reconsideration, the WCJ indicated that for purposes of reconsideration, applicant no longer contested the finding of apportionment under Labor Code Section 4663 related to the neck injury of June 27, 2005, essentially conceding under Labor Code Section 4663 that 80% of applicant’s cervical impairment was related to the industrial injury of June 27, 2005, and 20% due to non-industrial factors per Labor Code Section 4663. The primary contention was the Labor Code Section 4664 issue of overlap and whether there were overlapping factors of disability between the June 27, 2005, neck injury and the prior specific low back injury of November 25, 2001, that resulted in a 21% Award issued on September 24, 2004.

In denying applicant’s Petition for Reconsideration, the Board in their April 25, 2011, decision indicated there was no legislative intent they could find that prohibited the application of both Labor Code Sections 4663 and 4664(b) to the same case. They indicated the AME in the case was able to properly convert under the AMA Guides the disability caused by the November 25, 2001, low back injury to the 2005 Permanent Disability Rating Schedule by evaluating any impairment and disability under the relevant “Range of Motion” (ROM) Guidelines as set forth in the AMA Guides. The end result was that applicant’s November 25, 2001, industrial low back injury caused permanent disability of 22% under the current 2005 schedule for rating permanent disabilities under the Range of Motion Method. Pursuant to Labor Code Section 4664, this 22% permanent disability rating was subtracted from 34% to produce a final rating of 12% disability.

Applicant then filed a Writ with the First District Court of Appeal which was denied on July 21, 2011. Applicant’s subsequent Petition for Review to the Supreme Court as indicated above was denied on September 14, 2011.

Discussion: As indicated hereinabove, this is a very complex and intriguing case. It involves two significant issues. First, both the Court of Appeal and the WCAB indicated that in a proper situation both Labor Code Section 4663 and 4664(b) could be applied to the same case. The Court of Appeal quoted the WCAB’s Determination and Opinion on the Labor Code Section 4663 and 4664 application to the same case by stating:

With regard to the applicant’s argument that section 4663 apportionment and section 4664 apportiomnent cannot be applied in the same case, we see nothing in the language of the statutes or in their legislative purpose to support such a conclusion. As the Supreme Court held in Brodie v. Workers’ Comp. Appeal Bd. (2007) 40 Cal. 4 th 1313, 1328 [72 Cal. Comp. Cases 565], “the new approach to apportionment is to look at the current disability and parcel out its causative sources — non-industrial, prior industrial, current industrial — and decide the amount directly caused by the current industrial source.” We agree that it is improper to apportion to the same prior industrial injury twice. However, in this case the WCJ apportioned to non-industrial factors pursuant to section 4663 and to a prior industrial injury pursuant to section 4664. There was no overlap between what was apportioned under section 4663 and section 4664.

With respect to the more troublesome issue as to whether or not defendant met their burden proving overlapping factors of disability, even though there were different body parts involved, i.e., the neck versus the low back and under different schedules per the requirements of Kopping and Minvielle, the WCAB and Court of Appeal indicated the AME was able to adequately explain how he converted the impairment and disability related to the applicant’s prior low back injury of November 25, 2001, to the AMA Guides using the ROM Method. Applying the ROM Method to the applicant’s older low back injury the AME indicated it would equate to 12% whole person impairment under the current AMA Guides. The WCJ then indicated in essence that:

Based, therefore, upon the Appeals Board Opinion and Order indicating that apportionment under Labor Code Section 4664 should be addressed by describing the present and prior spinal impairments under the same method of impairment determination, it was determined to utilize Dr. Ramsey’s opinion that the applicant’s present neck injury had caused 25% impairment under the ROM Method and Dr. Ramsey’s opinion that the previous low back injury had caused a 12% whole person impairment under the ROM Method.

Both the Court of Appeal and the WCAB majority indicated that this case was distinguishable from Kopping and Minvielle. In Minvielle, the reporting AME indicated it was not possible to re-rate the prior disability using the same method as the subsequent disability. In this particular case, however, the AME was able to provide an AMA Guides rating using the same standard as the current injury. Therefore defendant properly proved overlap under Kopping, Sanchez, and Minvielle.

Comment: There is another recent decision, Montgomery v. Dirt Movers (SCIF) (2012) 2012 Cal. Wrk. Comp. P.D. LEXIS 479 (WCAB panel decision) where the WCAB on reconsideration in a 100% permanent disability case found both valid Labor Code section 4663 apportionrnent of 20% to a prior non-industrial injury resulting in degenerative joint disease and stenosis and also an additional 28% under Labor Code section 4664(b), to a prior award which overlapped applicant’s current disability attributable to the new injury under Kopping. Applicant received 58% permanent disability after apportionment. The current injury and the prior award were both pre-2005 dates of injury.

Wynne v Lutnend, Inc. (2011) 2011 Cal. Wrk. Comp. P.D. LEXIS 199 (Panel Decision)

Case Summary: Applicant, a medical engineer, suffered a cumulative trauma injury ending on May 19, 1999, to his back which resulted in an award of 55% permanent disability without apportionment.

Applicant had previously suffered a prior 1987 specific back injury which resulted in a 1990 lumbar fusion surgery. That case was resolved by way of a Compromise and Release.

At the time of trial defendant asserted there was a legal basis for both Labor Code §4664 and §4663 apportiom-nent.

Discussion: Defendant’s argument that there should be valid Labor Code §4663 apportionment was based solely on the fact there was a prior Compromise and Release for the specific 1987 back injury, which had a preclusion from no heavy work and had resulted in the 1990 lumbar fusion surgery. The reporting physician indicated the 1987 injury was “conclusively apportionable” pursuant to Labor Code §4664 because applicant was precluded from heavy work following that injury. The same physician indicated there was a basis for apportionment under Labor Code §4663 because the applicant’s earlier back fusion surgery in 1990 “accelerated” the subsequent injury he incurred while working for his culTent employer.

The WCAB quickly dealt with the Labor Code §4664(b) issue discussing and applying the Kopping case. In essence, defendant failed to prove the existence of any prior award, or if there was a prior award, it overlapped with the current impairment or disability. It is defendant’s dual burden to show both the existence of a prior award, which they did not do here, and also once the award is established to show the factors of disability overlap. Even if the defendant in this case had the benefit of a prior award, which the Compromise and Release in this case was not, it would have been difficult for them to prove the overlap element.

However, the more provocative issue in this case was Labor Code §4663 apportionment. Unlike Labor Code §4664, the concept of medical rehabilitation from a prior industrial injury or disability remains viable under current Labor Code §4663 after SB 899.

There was a plethora of details and testimony from the applicant that was essentially unrebutted. He testified that following his prior fusion surgery in 1990 he was symptom free after a period of time and was ultimately released to work without restrictions by his treating physician. He also indicated he had another surgery in 1994 where he lost time from work for only two weeks. Six months after his 1994 laminectomy, applicant testified he no longer had any complaints related to his back and he had no symptoms before his hire with Lumend. He testified that before he started working for Lutnend in 1997 he was able to lift weights between 1995 and 1997, he was also working out, biking and running. By mid-1996, he was back to normal with no restrictions for lifting weights or repetitive motion from his treating physician. He was also released to return to work with no restrictions or accommodations.

Based on this unrebutted testimony that he had fully recovered from the disability caused by his earlier injury in 1987 and subsequent two surgeries, applicant established he was fully rehabilitated from his earlier disability before he incurred the industrial cumulative trauma.

Moran y.Department of Youth Authority, LeRally Uninsured State Compensation Insurance Fund (2011) 2011 Cal. Wrk. P.D. LEXIS 43 (Panel Decision)

Case Summary: Applicant was employed as an office tech for defendant, Department of Youth Authority. She filed a cumulative trauma for the period of December 16, 1998 to March 27, 2001, related to her back, right shoulder, right upper extremity, psyche, opiate dependence, and gastrointestinal system. Previously, while working for the same employer, she suffered a specific injury on May 27, 1998, to her low back and tail bone resulting in an award of 24% permanent disability. In addition to the cumulative trauma, applicant filed a Petition to Reopen with respect to the old specific injury of May 27, 1999, and the award of July 5, 2000, for 24% related to that injury.

In terms of procedural history, the trial WCJ originally found applicant was permanently totally disabled, but that defendant was entitled to have applicant’s prior award of 24% subtracted from her award of 100% permanent total disability. Applicant filed for reconsideration, which was granted by the Board. The WCAB reversed the WCJ’s determination and held applicant should be awarded 100% permanent total disability without deduction or subtraction of her prior award of 24%. Defendant then sought reconsideration of the Board’s Opinion and Order reversing the WCJ.

Comments/Analysis: This is an extremely complicated and interesting case on the subtleties of overlap with respect to Labor Code §4664(b). The WCJ in the original Findings and Award finding overlap justifying a 24% reduction/deduction of the applicant’s 100% permanent total disability award failed to deal with the intricacies of overlap as expressed by the Kopping decision as well as decisions prior to SB 899 on overlap. It should be noted applicant did have four surgeries on her right shoulder related to the new cumulative trauma injury. There was a reporting AME in the case. With respect to the AME’s deposition taken in 2009, he testified that the direct cause of applicant’s total disability was the shoulder injury and its sequelae, which included surgeries and narcotic dependence. He also indicated applicant would be totally disabled by reason of those conditions, i.e., the cumulative trauma injury irrespective of any specific low back injury she may have sustained. He also opined there was “no overlap between the cause of the total disability and any disability that flows from the low-back injury.” The WCAB in reversing the WCJ’s finding of overlapping 24% permanent disability related to the prior specific injury, indicated there was no overlap of any permanent disability related to the prior stipulated award and the permanent disability caused by the cumulative trauma injury. The WCAB’s decision set forth several significant principles with respect to overlap.

Principles of Applying Overlap and Overlapping Disabilities:

Overlap of permanent disability occurs when factors of disability resulting from the current injury duplicate factors resulting from a different injury or condition, regardless of whether the injuries affect different body parts. (Mercier v. WCAB (1976) 16 Cal. 3d 711 (41 Cal.Comp.Cases 205)

The Board also pointed out that to the extent that permanent disabilities overlap, the injured worker is not entitled to recover twice for the same affected or diminished abilities. “However, permanent disabilities do not overlap if they affect different abilities to compete in the open labor market and earn.” (Sanchez v. County of Los Angeles (2005) 70 CCC 1440 (Appeals Board En Banc).

The WCAB also cited a 1984 Court of Appeal case, Newman v. WCAB (1984) 152 Cal. App, 3d 219 [49 C’al.Comp.Cases 1261, with respect to a critical principle of overlap. In the Newman case:

“The court addressed the issue of overlapping disabilities in a case where the injured worker suffered a stroke resulting in total permanent disability from hearing loss, loss of the use of his left arm, decreased vision, loss of memory and learning disabilities. The injured workers had a pre-existing non-industrial condition, a childhood leg amputation, requiring him to walk with crutches and a cane. The Appeals Board apportioned the 78% permanent disability from the amputation from the 100% permanent disability caused by the stroke, resulting in an award of 22% permanent disability. Based upon the absence of proof of overlapping disabilities, the court reversed and ordered the Board to award permanent total disability”.

The court specifically held:

Apportionment is not proper merely by finding petitioner suffered two disabilities distinct in time. As our Supreme Court noted in Mercier v. WCAB (1976) 16 Cal. 3d 711 [129 Cal. Rptr. 161, 548 P.2d 361] , “Obviously, the mere occurrence of a second injury does not require apportionment. In each case it must be determined if the second injury impairs the employee’s ability to perform work in the same maimer as the first injury. If so, apportionment is not proper, but only to the extent the two injuries overlap.” (Id., at p. 714, italics added.)

Applying these principles to the present case, the WCAB ruled the defendant had failed to carry its burden of proving that applicant’s permanent disability caused by the old 1998 specific low back and tail bone injury for which he received 24% overlapped with the permanent disability caused by the continuous trauma injury to the applicant’s right shoulder .

Citing the Kopping case, the WCAB in the instant case stated:

There is no basis to conclude that the permanent disabilities caused by the prior injury to applicant’s low back and tailbone and her cumulative trauma injury to her right shoulder affect the same abilities to compete in the open labor market and earn. Accordingly, we find that defendant failed to prove overlap and that it is not entitled to apportionment pursuant to section 4664. (Kopping v. WCAB (2006) 142 Cal.App. 4th 1099 [71 Cal.Comp.Cases 1229] .)

In short, the Board indicated the medical evidence from the AME established applicant was permanently totally disabled solely as a consequence of her right shoulder injury, which is a condition unrelated to her prior low back injury. Any other conclusion, finding, or opinion fails to fully consider the totality of the medical evidence.

Lakew v. San Francisco Hilton Hotel & Tower (2011) 2011 Cal. Wrk. Comp.

P.D. LEXIS 326 (Panel Decision)

Case Summary: Applicant while employed as a waitress suffered a cumulative trauma injury ending on July 8, 2003. She received a 100% permanent total disability award related to injuries to her bilateral upper extremities, bilateral lower extremities, psyche, low back, and neck. Applicant worked for the San Francisco Hilton Hotel for approximately 24 years. She also had received a prior award in 1994 for a specific injury she suffered on January 22, 1993, to her low back of 25V2% permanent disability. Defendant filed a Petition for Reconsideration that was denied alleging entitlement to both Labor Code Section 4663 and 4664 apportionment. The WCAB denied reconsideration.

Comments/Analysis: With respect to the Labor Code Section 4663 issue, it should be noted the applicant did have bilateral carpel tunnel surgery and had significant psychiatric impairment. With respect to the alleged basis for Labor Code Section 4663 apportionment, the reporting AME in orthopedics indicated 10% of applicant’s spine disability was related to non industrial factors, 40% to applicant’s 1993 specific injury at the Hilton, and 50% to the cumulative trauma which ended in 2003. All of this related only to applicant’s spine and not to any other orthopedic body part or condition. The WCJ in his report on reconsideration adopted by the WCAB, indicated he believed the AME’s opinion with respect to 4663 apportionment did not meet the Escobedo standard and the AME did not clarify how and why applicant’s non-industrial degenerative disease contributed to causation of her impairment or disability. The AME also failed to explain the mechanics by which such non-industrial anatomic or structural compromise contributed to overall causation of the applicant’s ultimate impairment or disability. The WCJ noted also that with respect to all of the factors of disability and the rating instructions, after adjustment for age and occupation, applicant’s psyche rated out to 92% permanent disability alone without even considering 27% to the spine, 31% to the upper extremities, and 23 % to the lower extremities.

With respect to Labor Code Section 4664 apportionment, defendant argued the WCJ should have deducted applicant’s prior 251/4% permanent disability award related to her low back. The WCJ issued a lengthy analysis and discussion of overlap between the old award and the disability related to applicant’s spine under the new cumulative trauma injury. It is important to note this is not an overlap issue involving old schedule, new schedule, i.e. the 2005 Permanent Disability Rating Schedule versus the 1997 Permanent Disability Rating Schedule. This is a pure overlapping of factors under the same Permanent Disability Rating Schedule, i.e., the 1997 schedule. The WCJ noted that with respect to the applicant’s prior award of 251/2% spine permanent disability, it was based upon subjective factors of disability only. Although, there was a work restriction of a 15% standard indicated by one reporting physician for the applicant’s old injury, the actual award of 251/2% was based on subjective factors of disability alone. The WCJ

carefully pointed out the current low back disability under the new CT was predicated only on a work restriction limiting the applicant to light work. In the WCJ’s opinion, work restrictions or preclusions do not strictly overlap with subjective factors of disability and therefore, Labor Code Section 4664 apportionment was not warranted.

This is a very significant case even though it is a Panel decision on how intricate the overlap equation can become. Even when you have the same part of the body involved, there may not be overlapping factors of disability.

Ruybal v. State of California, State Compensation Insurance Fund/State Contract Services (2012) 2012 Cal. Wrk. Comp. P.D. LEXIS 436 (WCAB

Panel Decision)

Case Summary: Applicant, an employee of the State of California, suffered a specific admitted injury of March 22, 2006, to his low back. Applicant had also suffered previous specific injuries and had received related Awards. In 1979 applicant was awarded 20% permanent disability for a back injury. Also on June 2, 1997, he received another Award for an injury to his back and left leg of 35% permanent disability. With respect to the 35% permanent disability related to the June 2, 1997 prior Award, the Award did not allocate permanent disability between the lower back and left leg, i.e., they were both combined. In connection with the two old specific injuries and related Awards, applicant had lumbar spine surgery.

With respect to the new injury of March 22, 2006, to his low back, applicant again had a multi-level lumbar spine fusion.

The reporting physician was a State Panel QME. After Trial the WCJ issued an Award of 100% permanent total disability payable by the Subsequent Injuries Benefit Trust Fund (SIBTF) which was then reduced by the 70% disability awarded against SCIF which reflected 30% apportionment to the two prior Awards of 1979 and June 2, 1997. Defendant filed a Petition for Reconsideration contending that application of Almaraz/Guzman was not warranted, there was no substantial evidence that applicant was permanently totally disabled, and the Trial Judge failed to properly apply Labor Code Section 4664(b) and 4664(c)(1)(D). The WCAB denied the defense Petition for Reconsideration and adopted and incorporated the WCJ’s Report and Recommendation on Petition for Reconsideration.

Discussion: As a backdrop to discussion of this case it should be kept in mind defendant basically sat on the SPQME report for two years without deposing the SPQME and they filed the Declaration of Readiness to Proceed!

The reporting SPQME, based on a combination of the AMA Guides modified by his opinion under Almaraz/Guzman, indicated the applicant was 100% permanently totally disabled but that 30% of the applicant’s permanent disability was attributable to a 30% reduction in the functioning of his lumbar spind due to the two prior injuries and related Awards.

The Labor Code Section 4664(b) Overlap Issue: The WCJ had a very detailed discussion as to why the defendant failed to meet its burden under Labor Code Section 4664(b) with respect to the prior Awards in this case. Relying on the Board’s decision in Kopping, the WCJ noted it was the defendant’s burden not only to prove the prior Award existed but also that the prior Awards and related disability overlaps with the current Award. Both prior Awards were issued under the old schedule so the cumulative effect of the prior Awards could not be accurately calculated since they were based on different scales and could not be determined by “the same ruler”. “A percentage under the old schedule is not equivalent to a percentage in the new schedule”.

With respect to defendant’s argument under Labor Code Section 4664(c)(1)(D) that the accumulation of all prior disability Awards to the spine, i.e., one region of the body could not exceed 100%, the WCJ indicated the prior Awards were not for identical body parts since one of them included both the applicant’s back and left leg. Since there was no allocation of the percentage of the prior 35% Award between the left leg and back, a percentage could not be applied to the “accumulation of all permanent disability” with respect to one region of the body.

Comments: This is a classic case where a defendant failed to meet its burden of proof under Labor Code Section 4664(b) with respect to the conclusive presumption of the prior Awards due to failure to prove overlap.

However, as the WCJ pointed out, the fallback saving apportionment code section was Labor Code Section 4663 where the reporting SPQME addressed the apportionment of the current disability between the two prior injuries and related Awards and the current injury. In essence 4663 apportionment was applicable since the reporting SPQME had carefully analyzed that the applicant’s lumbar spine function and ability to work had been significantly affected by his prior two industrial injuries.

For another case dealing with overlap and the Labor Code § 4664(c) prohibition against the accumulation of all permanent disability awards totaling 100% for specific regions of the body, see Serrano v. General Motors Corporation (2013) 2013 Cal. Wrk. Comp. P.D. LEXIS 28 (Panel Decision). Defendant failed to prove overlap of a prior stipulated award of 5.25% permanent disability to a left thumb in a 100% PTD case involving fibromyalgia. The Board stated:

Thus, in this case, there is no basis for apportioning 5% of applicant’s total permanent disability pursuant to section 4664(c) because the 5.25% permanent disability for the injury to the left thumb that is conclusively presumed to exist because of the prior award…was not proven to overlap the current total current permanent disability caused by the fibromyalgia that affects numerous regions of the body, and because section 4664(c) only provides that the “accumulation of all permanent disability awards issued with respect to any one region of the body in favor of one individual employee shall not exceed 100%.”

Petitions to Reopen.

(For earlier cases, please see previous case law update, “January 2011”, pages 85-97 at PBW-Law.coin)

Ortiz v. Orange County Transportation Authority, PSI (2012) 2012 Cal, Wrk.

Comp. P.D. LEXIS 429 (WCAB Panel Decision)

Case Summary: This case involves a Petition to Re-Open for New and Further Disability and the correct formula/legal standard to apply Labor Code § 4663 apportiomnent with respect to any increased permanent disability found on the Petition to Re-Open for New and Further Disability.

Originally applicant, a coach operator for Orange County Transportation, suffered a specific injury to her lumbar spine and tailbone. That injury was resolved by stipulated award where applicant was found to have sustained 23% permanent partial disability. She filed a timely Petition to Re-Open for New and Further Disability.

Following trial, the WCJ awarded applicant 40% permanent partial disability after 10% Labor Code § 4663 apportionment resulting in an increase of 17% permanent partial disability over the prior Award with defendant to receive credit for the dollar value of the prior Award.

Applicant filed a Petition for Reconsideration arguing the apportionment found by the reporting SPQME was invalid. The WCAB granted applicant’s Petition for Reconsideration and reversed the WCJ finding the apportionment under Labor Code § 4663 on the Petition to Re-Open for New and Further was invalid.

Discussion: This case is another example/illustration of the thorny issue of how to correctly apply apportionment on a Petition to Re-Open for New and Further Disability. As indicated by other cases in this section, many WCJs and reporting physicians do not fully comprehend or understand the formula laid out by the WCAB in these particular cases as set forth in Vargas v. Atascadero State Hospital (2006) 71 Cal. Comp. Cases 500 (en bane).

In reversing the WCJ’s decision in this case and applying the Vargas holding, the WCAB essentially indicated that while there were documented degenerative changes related to the applicant’s lumbar spine, the reporting SPQME indicated these degenerative changes pre-existed the original specific injury and therefore would have pre-existed the prior Award of 23% permanent partial disability. In discussing the Vargas formula the Board stated:

The report is also deficient because Dr. Simpkins failed to specifically address the requirement that the apportionment issue presented in the Petition to Re-Open for New and Further Disability is limited to the factors that caused the increase in permanent disability, and not the non-industrial factors which would subject the initial award of permanent disability to apportionment. (Original emphasis and citation to Vargas)

The Board emphasized that while Labor Code § 4663 did apply to Petitions to Re-Open for New and Further Disability, that Labor Code § 4663 apportionment to non-industrial factors only applies to the increase in permanent disability and can not be used to revisit the prior Award of permanent disability.

In this particular case the reporting SPQME failed to distinguish between the prior permanent disability for which the applicant received a prior Award and the subsequent increase in permanent partial disability.

Practice Pointer: As indicated in all of the cases in this section, while Labor Code § 4663 apportionment to non-industrial factors does apply to a Petition to Re-Open for New and Further Disability, the Vargas holding/formula indicates that the reporting physician and the WCJ must focus on the period of time from the original Award and the MMI evaluation on the Petition to Re-Open for New and Further Disability. It is only the increased permanent disability between these two dates that can be the focal point for any alleged non-industrial factors that would be the basis for valid Labor Code § 4663 apportionment. For example, if the applicant had an underlying degenerative disease condition in the lumbar spine that was documented at the time of the prior Award and by virtue of diagnostic studies that were done between the date of the Award and the MMI evaluation on the Petition to Re-Open for New and Further Disability and there was an increase shown, i.e., a progression, of the underlying degenerative joint disease process that could be substantiated, then there would be a valid potential basis for Labor Code § 4663 to any increased permanent disability.

Bates v. WCAB (2012) 77 Cal. Comp. Cases 636; 2012 Cal. Wrk. Comp. LEXIS 80 (writ denied)

Case Summary: Applicant originally suffered a specific back injury on February 10, 1992, while employed as a warehouse supervisor. Pursuant to a Stipulated Award he received 471/2% permanent disability. Applicant filed a timely Petition to Re-Open for New and Further Disability alleging a psychiatric injury as a compensable consequence of his original back injury. The parties agreed to go to an AME in psychiatry. The AME indicated the applicant had significant increased psychiatric permanent disability with 95% related to the pain limitations and restrictions caused by the original back injury and 5% to non-industrial factors specifically stressors related to the applicant’s concerns about his wife who was also disabled, some pre-existing personality issues, and also issues related to the applicant’s stepson.

At trial the primary issues were permanent disability and apportionment. Applicant put on a vocational rehabilitation expert and also relied on LeBoeuf. The vocational rehabilitation expert indicated applicant was totally precluded from competing in the open labor market.

The WCJ issued a Findings and Award finding applicant to be 100% permanently disabled with no basis for non-industrial apportionment. With respect to the apportionment issue the WCJ indicated the AME had indicated there was a “reasonable likelihood” applicant’s psychiatric permanent disability was 95% industrial and 5% attributable to’non-industrial factors and this descriptive did not constitute substantial medical evidence since it did not meet the standard of “reasonable medical probability”. Predictably, defendant filed a Petition for Reconsideration

that was granted by the WCAB who rescinded the WCJ’s decision and substituted a new Findings and Award finding that the AME’s apportiomnent determination was valid and applicant only suffered 95% permanent disability as opposed to being permanently totally disabled.

Discussion: On appeal, the critical issue was whether or not the AME’s use of the descriptive “reasonable likelihood” was essentially synonymous with “reasonable medical probability” so as to constitute substantial medical evidence. The WCAB basically turned to the dictionary and determined that the words “probability” and “likelihood” are basically synonymous and are used to define each other. Moreover, looking at the context of the AME’s report his use of the term “likelihood” was an even stronger indication than the mere use of the word “probability”. Overall the WCAB found the AME’s report to be well reasoned and based on pertinent facts with an adequate examination. Applicant’s Petition for Writ of Review was denied by the Court of Appeal.

Benson Issues.

(For earlier cases, please see previous case law update, “January 2011”, pages 98-108 at PWB-Law.com )

Joong Kwong v. Metro Building Maintenance, National Union Fire Insurance Company, CIGA (2011) 2011 Cal. Wrk. Comp. P.D. LEXIS 36 (Panel Decision)

Case Summary: The trial WCJ issued a Findings Award and Order on October 26, 2010, finding applicant a superyisor/loader/unloader suffered a specific April 20, 2000, injury to his spine as well as a cumulative trauma injury from October 24, 1999 to July 9, 2000, related to psychiatric injury, spine and internal systems in the form of bowel and incontinence. The WCAB awarded 84% permanent disability in a joint and several award without apportionment.

Both defendants filed a Petition for Reconsideration which was granted by the WCAB. The WCJ’s Findings and Award were rescinded and the case returned to the trial level for further proceedings and new decision consistent with the WCAB’s opinion.

Discussion: This case involved the Application of the principles in Benson, as well as the impact of stipulations as being binding upon the parties. There were a number of reporting physicians in this case including an AME in orthopedics. There were also reporting physicians in internal medicine, pain management and psychiatry. Originally the AME in orthopedics found no basis for apportionment. However, in a subsequent deposition the AME indicated the applicant suffered both an orthopedic cumulative injury and a specific injury although the resultant disability was mostly attributable to the cumulative trauma. The AME indicated that with respect to non-industrial causes 15% of the applicant’s orthopedic disability was preexisting in that applicant had documented arthritis, which although it could be considered pathology, the applicant also had a history of symptomatic back pain. Moreover, at the time of trial the parties stipulated applicant sustained a specific injury to his spine on April 20, 2000, and also there was a stipulation by the parties that applicant suffered a cumulative trauma to his spine, internal system and psychiatric injury. Therefore, the only significant issues at trial were permanent disability and apportionment. Issues of contribution and reimbursement were deferred.

In rescinding the trial WCJ’s 84% unapportioned award, the WCAB did a very thorough analysis of the Escobedo and Gatten cases. They indicated that based on a review of case law and Labor Code §4663, that under the new apportionment regime, there can be apportionment to pathology. The orthopedic AME in this case essentially apportioned causation of impairment two thirds to the cumulative trauma and one third to the specific injury. The Board also noted the parties stipulated to separate and successive injuries citing the Weatherall case 65 CCC 1. With respect to the internal injuries, the WCAB also noted that the reporting physician in internal medicine opined that apportionment with respect to the internal injury should follow the orthopedic apportionment. It was applicant’s orthopedic condition that caused the underlying bowel incontinence. Therefore, the same apportionment formula between the specific and CT injuries applied being one third to the specific injury, and two thirds to the cumulative trauma injury.

With respect to whether or not there should be separate awards per Benson, or a joint award, the WCAB discussed the Benson holding and indicated based on their review of the medical reporting from the AME and other reporting physicians constituted substantial medical evidence, “that the industrial orthopedic disability is attributable one-third to the specific injury and two-thirds to the cumulative trauma and that applicant is entitled to two separate awards rather than one”.

Comments/Analysis: The application of Benson by the WCAB in reversing the WCJ eliminated the joint single 84% award and resulted in two separate awards of 55% for the cumulative trauma injury, and 29% for the specific injury.

Lester v. WCAB (2011) 76 Cal. Comp. Cases 1224; 2011 Cal. Wrk. Comp. LEXIS 162 (writ denied)

Case Summary: This case has an extensive procedural history. Applicant was employed as a Tax Technician by the State of California Board of Equalization. Initially, she was awarded 100% permanent total disability based on a specific injury of October 16, 1992, involving injuries to her bilateral upper extremities, back and fibromyalgia. There was also a cumulative trauma from March 19, 1988 through January 1, 1996, for the same body parts and conditions. The reporting physician was characterized as an IME. The 100% award was rescinded on reconsideration and remanded for further development of the record.

A second Findings & Award issued once again determining applicant was 100% permanently totally disabled. The Board granted defendant’s Petition for Reconsideration, and remanded the case, instructing the WCJ to re-visit the issue of permanent disability and apportionment in light of the Benson decision. In terms of development of the record, Dr. Nagelberg’s deposition was rescheduled.

It should be noted that Dr. Nagelberg was deposed three times. The first on August 24, 2005, the second on May 28, 2008, and the third and final deposition on April 20, 2010. In his first two depositions, Dr. Nagelberg definitively opined that 50% of applicant’s permanent disability was apportionable to the specific and the other 50% to the cumulative trauma. In the second deposition on May 28, 2008, he once again reaffirmed his first opinion in his August 24, 2005, deposition that his opinion on apportionment between the two injuries had not changed. He also indicated in his second deposition that both the specific and CT injuries were significant and could have separately resulted in the diagnosis of fibromyalgia. In his third and last deposition on April 20, 2010, Dr. Nagelberg reversed his prior opinion, indicating he believed the resultant impairment and disability from the two successive injuries were essentially intertwined and he could not reasonably apportion impairment or disability between the two injuries. He then used the “inextricably intertwined” mantra to support the complete change in his opinion.

The WCAB granted defendants Petition for Reconsideration and reversed the WCJ’s combined award of 100% permanent disability.

Discussion: In reversing the WCJ and indicating applicant should receive two separate awards of 50%, the Board stated that Dr. Nagelberg’s testimony in his third deposition did not constitute substantial medical evidence to justify a combined award. The Board could not understand the basis for Dr. Nagelberg changing his opinion during the course of his April 20, 2010 deposition without any new information to support it.

Comments/Analysis: The obvious lesson here is that if a doctor after repeatedly reaffirming his opinion that he could apportion between a specific and successive CT injury and then reversing himself 180 degrees in a third deposition without any new information to support the change, will not constitute substantial medical evidence. This is just one more case in what appears to be a protracted and evolving battle about whether a physician’s mere characterization of impairment and disability is allegedly so “inextricably intertwined” between successive injuries will constitute substantial medical evidence or be determined to be speculative.

Visalia Unified School District v. WCAB (Marshall) (2011) 76 Cal. Comp. Cases 1255; 2011 Cal. Wrk. Comp. LEXIS 177 (writ denied)

Case Summary: Within a short period of time the applicant, a teacher suffered two specific injuries. The first was on October 29, 2004, related to her low back, neck and right elbow. She then suffered another specific injury on February 2, 2005, to both upper extremities, low back, neck, and right toe. She also alleged injuries to her knees and urinary system.

The WCJ issued a combined Findings & Award in which the applicant received 78% permanent disability without apportionment between the two specific injuries. The reporting physician was an AME. Both applicant and defendant filed Petitions for Reconsideration. Defendant’s Petition for Reconsideration alleged it was error for the WCJ to find a combined/joint award for the two separate specific injuries as opposed to two separate awards pursuant to Benson. The WCAB affirmed the WCJ’s joint award and defendant’s Writ was denied.

Discussion: The reporting AME in this case during the course of her deposition demonstrated a thorough understanding of the fundamental principles and requirements of the Benson decision. She indicated that in previous reports on other cases she had been able to separate out and apportion the disability between successive injuries. However, in this case she could not do so without speculating. Basically she indicated there were two dates of injury within a very close period of time. She did concede that both dates of injury contributed to disability, but after evaluating the applicant two years after the two injuries in question and considering all of the medical evidence, she could not within reasonable medical probability apportion between the two injuries. She described both injuries as “one big conglomeration of injury.” The AME also made it clear she did not oppose apportioning between injuries when she had an adequate basis for doing so. The Board also indicated the Benson decision itself states that in certain limited circumstances, physicians may be unable to apportion between various causes of disability with respect to successive injuries. Based on the particular facts of this case and deposition of the AME, the WCJ and Board concluded the AME had reasonably ‘analyzed all of the particular facts and persuasively concluded it was not medically reasonable to separate the intertwined causes in order to give an approximate percentage of apportionment between the successive injuries. See

also Acosta v. M.A.M. Design Center, Inc. (2013) 2013 Cal. Wrk. Comp. P.D. LEXIS 2 (Panel Decision) Cumulative trauma injury and specific injury “inextricably intertwined” where physician opined there was no medical evidence to justify assigning a separate percentage of disability between the specific and cumulative trauma injury. For another case finding that five successive injuries could not be separated or segregated as to the percentages of permanent disability to be allocated to each injury see, Driver v. Holt Rinehart & Winston (2012) 2012 Cal. Wrk. Comp. P.D. LEXIS 571 (Panel Decision). Based on opinions of AME and primary treating physician, applicant was 100% permanently totally disabled per Labor Code § 4662 based on a combination of her injuries that were “inextricably intertwined”.

Harris v. State of California, Department of Consumer Affairs, SCIF (2011)

2011 Cal. Wrk. Comp. P.D. LEXIS 71 (Panel Decision)

Case Summary: Based on a timely filed Petition to Reopen a previously joined cumulative trauma injury ending in 1999 and a specific injury of October 25, 2000, the WCAB awarded and found applicant was 100% permanently totally disabled without any basis for apportionment related to the increase in the prior awarded disability of 65% which had increased to 100%. Defendant filed a Petition for Reconsideration arguing the WCJ had failed to apply Labor Code §4663 apportionment to the increased permanent disability above 65% and also failed to apply apportionment under Benson by apportioning and finding separate awards, relative to the CT and specific injuries as opposed to one joint award. The WCAB denied defendant’s Petition for Reconsideration and affirmed applicant’s 100% permanent total disability award.

Discussion: Applicant originally filed a CT claim for the period of June 23, 1998 through June 23, 1999, which resulted in a Stipulated Findings & Award of 39% permanent disability that issued on May 7, 2000. Applicant then filed an additional claim for a specific injury of October 25, 2000. For some unexplained reason, the parties then entered into a new Stipulated Findings

Award providing that for both the CT and the specific, applicant now had overall permanent disability of 65%. Both the CT and the specific were expressly joined with respect to the new Stipulated Findings & Award of 65%. Moreover, the Stipulated Findings & Award did not have any details with respect to how much of the increase from 39% to 65% was due to the increase from the first injury, or how much PD was caused by the second injury, i.e., the specific.

Applicant filed a timely Petition to reopen on the joined injuries. The WCAB properly described this joinder as “voluntary”. The reporting AME indicated applicant was 100% permanently disabled with increased PD of 35% over the prior Joint Stipulated Findings & Award of 65%. The WCAB indicated that what defendant was trying to do was to “unjoin” the two dates of injury previously joined in order to try and apply and take advantage of the Benson decision. The WCAB noted that on a Petition to Reopen for new and further disability the Vargas case applies, but it only applies to any increase in permanent disability, not the previously awarded permanent disability of 65%. Moreover, for purposes of the trial, the parties jointly stipulated applicant was 100% permanently totally disabled and the only issue was one of apportionment or whether the award shouldi be combined or separate with respect to the CT and specific injury. There was no opinion from the reporting AME or deposition testimony that supported any basis or argument by defendant that the increased permanent disability of 35% was related to any non-

industrial factors between the time of the prior stipulated award of 65% and the AME’s reevaluation. Moreover, there was no opinion indicting any evidence of apportionment between the voluntarily joined CT injury and specific injury. In essence there was a failure of proof.

Comment/Analysis: This is an interesting case in that it deals with both the Vargas and Benson cases and their application to a Petition to reopen for new and further disability.

Defendant clearly was hoisted on its own petard since they had previously voluntarily agreed to join the CT and the specific injuries with respect to the underlying 65% PD prior stipulated award. It was almost impossible for them to factually of medically separate the two injuries for purposes of reducing their liability under Benson.

State Compensation Insurance Fund v. WCAB (Dorsett) (2011) 201 Cal. App.

4th 443; 72 Cal. Comp. Cases 1138

Case Summary: Applicant, while working for two different glass companies, suffered a specific injury to his cervical spine on March 21, 2000, and a cumulative trauma injury while working for a second glass company/employer from November 15, 2002, to June 8, 2004. Following the first specific injury to his cervical spine on March 21, 2000, he underwent two cervical spine surgeries including a discectorny and fusion. However, he returned to work with restrictions.

From a procedural standpoint, the WCJ awarded the applicant 100% permanent total disability without apportionment pursuant to either Labor Code § 4663 or 4664. Both injuries were deemed to have become permanent and stationary at the same time and the WCJ in issuing his Joint Findings & Award indicated that “The permanent disability caused by each is not reasonably capable of separation or apportionment from the combined permanent disability.” Defendant SCIF filed a Petition for Reconsideration essentially arguing that applicant should have received two 50% separate Awards pursuant to Benson. The WCAB denied defendant’s Reconsideration affirming the WCJ’s decision. SCIF then filed a Petition for Writ of Review. The Court of Appeal annulled the WCAB’s Order Denying Reconsideration and remanded the, matter back to the Board with directions for the WCJ to make an Award consistent with its opinion, i.e., two separate 50% Awards rather than a combined 100% permanent total disability Award.

Discussion: The reporting AME in this case was the same AME in the Benson case. The underlying facts are almost identical to Benson. The Court of Appeal noted that in the Benson case, the applicant also had a specific as well as a CT injury to her neck. She also had surgery to her cervical spine. Both became permanent and stationary on the same date. The Court of Appeal noted this same AME in reporting in the Benson case, had apportioned half of the employee’s permanent disability to the cumulative trauma and half to the specific injury. The Court also reiterated the principles in Benson. Section 4663(c) “specifically requires a physician to determine what percentage of disability was caused by each industrial injury, regardless of whether any particular industrial injury occurred before or after any particular injury or injuries.” (Benson supra, p. 1552). The Court of Appeal also noted the exception that there may be limited

circumstances which they indicated were not present in Benson or in the instant case, where the evaluating physician cannot parcel out, with reasonable medical probability, the approximate percentages to which each distinct industrial injury causally contributed to the employee’s overall permanent disability. In such limited circumstances the injured worker would be entitled to a combined award of permanent disability.

For some strange reason, the reporting AME in this case opined that the cumulative trauma injury applicant suffered for his second employer from November 15, 2002, to June 8, 2004, was a compensable consequence of the specific injury of March 21, 2000, which the applicant suffered to his cervical spine. The AME did concede applicant had two injuries. The AME also conceded that the cause of the eventual final disability in this case was attributable to both the specific injury of March 21, 2000, the resultant surgery with the changes that occurred and also the subsequent separate cumulative trauma injury. During the course of his deposition, the AME conceded that applicant’s “current level of permanent disability whatever that level may be, is apportioned 50% to the specific injury and 50% to the cumulative trauma injury.” SCIF’s contention on appeal was basically that a cumulative trauma injury cannot be both a compensable consequence of an earlier injury and a second injury as well, especially if it is to the same body part.

Comment/Analysis: It is extremely difficult to determine or understand how the WCAB Panel and the Trial WCJ in this case, before being reversed by the Court of Appeal, found there was no basis for separate 50% Awards since this case had essentially the same facts that existed in Benson. Admittedly there was some waffling by the AME during the course of his deposition which seemed to be based on his confusion between causation of injury and causation of actual disability. The ongoing challenge for the Board and Trial WCJ’s in these situations is to determine whether a physician’s characterization of the resultant disability from two separate and distinct injuries as being “inextricably intertwined” is really based on substantial medical evidence or rather a convenient way to artificially attempt to increase or maintain overall case value. (See also, Corbitt v. Media Quest, CIGA (2012) 2012 Cal. Wrk. Comp. P.D. LEXIS 458 (WCAB panel decision). WCAB found two separate successive injuries, a specific and a cumulative trauma, each with 40% permanent disability as opposed to applicant’s contention there was one specific injury with 100% PTD.)

Blackmon v. Monterey Peninsula Unified School District (2011) 2011 Cal. Wrk.

Comp. P.D. LEXIS 353 (Panel Decision)

Case Summary: The applicant while working for three successive employers, suffered an admitted specific injury on December 1, 1997 to his right wrist and elbow while employed with the Monterey Peninsula Unified School District (MPUSD) and a cumulative trauma injury from December 2, 1997 through August 1, 2001, while employed with American Plumbing from June 2000 to April 2001, and his last employer Selco for approximately three months.

Following his December 1, 1997, injury with MPUSD, applicant had two surgeries to his right upper extremity. He continued working without restrictions, but was laid off due to budget constraints. After working for his final employer Selco in August of 2001, he underwent five

additional surgeries, which then brought his surgical total to seven. He also sustained a compensable psychiatric injury which required at least one hospitalization. There were reporting AME’s in orthopedics and psychiatry.

The case has a rather protracted procedural history with numerous remands back for development of the record. The final issue on remand was for both the WCJ and WCAB to determine whether applicant was entitled to a combined unapportioned award of 100% permanent disability, or two separate awards for the separate specific and CT injuries as stipulated to by the parties. Both AMEs were re-deposed. There were supplemental reports. In essence the AME in orthopedics, indicated that in his opinion there was a basis for apportionment, but he based his apportionment formula on the number of surgeries the applicant had i.e., basically indicating 2/7 of the disability should be apportioned to the first employer MPUSD, since that is where he had two surgeries, and 5/7 of the disability should be apportioned to the two successive employers where the applicant suffered the CT injury. However, the orthopedic AME was unable to articulate how or why the timing of the applicant’s particular surgeries was or is a reasonable method for determining each injuries contribution as to the cause of applicant’s disability at the time of his final MMI/P&S evaluation.

The WCJ and the Board concluded that the orthopedic AME’s use of the surgery apportionment formula was basically attributable to the fact there was a large gap in the medical record from which the orthopedic AME could have otherwise made a reasonable apportionment determination based on reasonable medical probability. The AME in orthopedics during the course of his deposition lamented on the fact there were no contemporaneous real time medical records covering the applicant’s protracted medical treatment as well as surgeries. The Board indicated the AME in orthopedics “has not articulated how or why the timing of the surgeries is a reasonable method for determining each injury’s contribution of the cause of the applicant’s disability at the time of his evaluation. It seems the underlying reason for using this “evidence” is because the medical record no longer exists from which he can make such a reasoned determination”.

Comments/Analysis: Given the articulated absence of contemporaneous critical medical records the orthopedic AME could review, the Board indicated that to apportion the resultant disability from the admitted CT and specific injury would be pure speculation without the required how and why under the Gatten and Escobedo cases. The Board essentially found a Benson exception of a limited circumstance where the employer had failed to meet its burden of proof and therefore a combined award of permanent disability is justified.

Piper v. WCAB (2012) 77 Cal. Comp. Cases 661; 2012 Cal. Wrk. Comp. LEXIS 89 (writ denied)

Case Summary: Applicant, a customer service technician, suffered a specific injury on July 11, 2000, related to her shoulders, knees, and neck. She also suffered a cumulative trauma from July 11, 1999, through July 11, 2000, to the same body parts. The’Findings and Award reflected two separate Awards of 55% permanent disability related to the specific injury and a separate 55% Award for the applicant’s cumulative trauma injury which reflects permanent disability after

apportionment. Applicant filed a Petition for Reconsideration basically alleging that applicant was entitled to a single 100% Award and not two 55% Awards based on reporting from applicant’s primary treating physician and expert testimony at trial in the form of a vocational rehabilitation expert. The WCAB affirmed the trial judge’s decision by adopting and incorporating the WCJ’s report on reconsideration. The Court of Appeal denied applicant’s Petition for Review.

Discussion: The WCJ, the WCAB and the Court of Appeal basically found on the reporting defense QME. The defense QME evaluated the applicant over several years from 2002 through 2007 and issued a number of reports and his deposition was also taken. He also reviewed sub rosa video. Even before the QME had an opportunity to review the sub rosa video in this case he opined applicant’s subjective complaints were significantly magnified and out of proportion to the objective findings on examination. The sub rosa video essentially confirmed his opinion.

In terms of Labor Code § 4663 apportionment, applicant had significant pre-existing arthritis in her right knee which had already required surgery in 1993 and continued to progress. The applicant ultimately required a right knee replacement in November of 2000 and then a revision of the right knee replacement in 2002.

With respect to apportionment as to the right knee, the defense QME indicated 50% of applicant’s overall right knee disability was attributable to underlying progressive severe osteoarthritis. With respect to apportionment between injuries as to the remaining permanent disability, 25% was related to the specific injury and 25% to the cumulative trauma. The defense QME then apportioned 50% of the applicant’s bilateral shoulder symptoms to the specific injury and 50% to the cumulative trauma injury as he also did with the bilateral upper extremity condition. With respect to the applicant’s cervical spine 25% was apportioned to the specific injury and 25% to the cumulative trauma and the remaining 50% to a non-industrial 1997 automobile accident.

Comments: This case is a very good example of a combination of Labor Code § 4663 non-industrial apportionment based on contributing factors of the applicant’s overall disability as well as under Benson apportionment between successive injuries of a cumulative trauma and a specific injury. See also, De Fazio v. L.A.U.S.D. (2012) 2013 Cal. Wrk. Comp P.D. LEXIS 568 (Panel Decision) dealing with issues involving Benson and overlap. Applicant suffered three successive injuries to different body parts. WCJ issued three separate awards. Applicant filed for reconsideration contending there should be one joint award since the work restrictions and related disability were “inextricably intertwined”. WCAB granted reconsideration and remanded with instructions for the WCJ to issue new rating instructions with a common work restriction to be applied to each of the three separate injuries but with consideration of potential overlap. WCAB held Benson did apply since applicant had sustained three successive injuries to three different body parts and even under the old Wilkinson rule pre-Benson, applicant would not be entitled to a single joint award.

Guzman v. State Compensation Insurance Fund (2012) 2012 Cal. Wrk. Comp.

P.D. LEXIS 413 (WCAB Panel Decision)

Case Summary: Following trial the WCJ issued two separate Findings and Awards. One Award reflected a specific injury of November 30, 2000, where applicant, a truck driver/loader unloader, suffered injuries to his neck, right shoulder, right and left hand, wrist, and gastrointestinal system. Applicant also suffered a cumulative trauma from 1979 through March 8, 2001. With respect to both the specific and CT injury, the WCJ found the applicant suffered a psychiatric injury as well as skin and sleep disorder.

With respect to the specific injury, the WCJ indicated 77% permanent disability after apportionment and with respect to the cumulative trauma, 18% permanent disability.

Applicant filed a Petition for Reconsideration alleging he was 100% permanently totally disabled and there should be a single Award as opposed to two separate Awards. The WCAB granted reconsideration and amended the WCJ’s decision on the issues of permanent disability and apportionment and remanded the matter back to the trial level for further proceedings.

Discussion: The reporting physicians in this case were an AME in orthopedics and a QME in psychiatry. The AME in orthopedics apportioned the applicant’s orthopedic disability between both the specific and the cumulative trauma injuries. The psychiatric QME, however, indicated that in his opinion the causation of the applicant’s psychiatric/psychological disability was allegedly so inextricably intertwined it was impossible for him to apportion between the cumulative trauma injury and the specific injury.

In granting reconsideration the Board engaged in an extensive discussion of its own en bane decision in Benson as well as well as the Court of Appeal’s decision what they described as Benson II. In discussing the Court of Appeal’s decision in Benson II the WCAB noted as follows:

The Benson II Court also agreed with the Appeals Board that a system of apportionment based on causation requires that each distinct industrial injury be separately compensated based on its individual contribution to a permanent disability. However, the Court also acknowledged that there may be limited circumstances when the evaluating physician cannot parcel out, with reasonable medical probability, the approximate percentages to which each distinct industrial injury causally contributed to the employee’s overall permanent disability. In such cases, a combined award of permanent may still be justified.

In analyzing their own decision in Benson I the Board acknowledged there may be limited circumstances and an exception where an examining physician cannot parcel out with reasonable medical probability the approximate percentages to which each industrial injury causally contributed to the employee’s overall permanent disability. However, the Board also indicated there is a statutory mandate that any examining physician, in making an apportionment determination and who is not able to medically parcel out the degree to which each injury causally contributed to the overall permanent disability, is statutorily required to consult with

another physician or refer the employee to another physician in order to assist with the apportionment determination.

Applying their analysis to the facts in the instant case with respect to the psychiatric QME’s opinion, the Board determined the psychiatric QME’s opinion on apportionment did not constitute substantial evidence because he did not set forth his reasoning and more importantly why the psychiatric disability could not be apportioned along the lines of the orthopedic disability as indicated by the orthopedic AME, especially since the psychiatric injury stems from and is a compensable consequence of the orthopedic injury.

As a consequence, the WCAB remanded the case for further development of the record including a supplemental report and/or deposition by the psychiatric QME.

Guerrero v. Wellpoint Health Network, CIGA; Zurich Insurance (2012) 2012

Cal. Wrk. Comp. P.D. LEXIS 129 (WCAB Panel Decision)

Case Summary: This case is complex both procedurally and medically. On October 13, 2010, the WCJ issued the first Findings and Award and Order finding a single cumulative trauma injury from April 1, 1985, through March 30, 2006, causing 100% permanent total disability without apportionment. One of the defendants, Zurich, filed for reconsideration which was granted and the case was remanded back to the trial level for the WCJ to issue a new decision with a more adequate discussion of the evidence. The WCJ then issued a second Findings and Award on September 28, 2011, finding that the applicant, a senior claims associate, suffered a single cumulative trauma injury from August 10, 1999, to August 10, 2000, resulting in 2% permanent disability after apportionment. Of interest is that there was only a $126.00 applicant attorney’s fee!

With respect to the second Findings and Award and Order of September 28, 2011, both applicant and co-defendant CIGA filed Petitions for Reconsideration. On reconsideration, CIGA asserted or alleged the end date of the cumulative trauma period should have been March 29, 2006, applicant’s last day of work, rather than August 10, 2000. Applicant on reconsideration alleged she sustained a single cumulative trauma injury from April 1, 1985, through March 30, 2006, resulting in 100% permanent total disability without apportionment. The WCAB granted reconsideration and rescinded the Findings and Award and returned the matter to the trial level for further development of the medical record on the sole issue of whether the applicant suffered one cumulative trauma injury or two cumulative trauma injuries and the possible application of Benson.

Discussion/Comments:

Medical Overview: Applicant was a 21 year employee working as a claims adjuster for Blue Cross. She initially started developing physical problems with her neck in 1995 and treated through a private physician. Beginning in late 2000, she again complained of neck and right arm problems and saw a succession of doctors. She was treated and had work restrictions imposed. In early 2001, applicant was taken off work for seven months from approximately February 12,

2001, to September 17, 2001. Although she had previously been on work restrictions, when she returned to work after being off for seven months she performed her usual and customary job duties. She then saw a succession of AMEs and treating physicians who diagnosed her with a variety of conditions and problems including systemic disease. Applicant had a second period of temporary total disability where she was taken off work by a rheumatologist from August 15, 2002, to November 13, 2002. After applicant returned to work the second time she was given additional responsibilities and it was documented her complaints worsened and she periodically called in sick, sometimes several days in a row. In late 2005, applicant was evaluated by an AME in rheumatology who diagnosed her as having a condition that evolved into post traumatic fibromyalgia all on an industrial basis. Applicant’s last day of work was on March 29, 2006. She also developed a very significant psychiatric compensable consequence injury. When the AME in rheumatology’s deposition was taken he concluded the applicant had one cumulative trauma.

Legal Analysis: The focal issue in this case was whether or not the applicant had one cumulative trauma injury or two cumulative injuries. The WCAB on reconsideration provided a very definitive discussion as to the case law and related principles in determining whether an injured worker has suffered a single cumulative trauma or multiple cumulative traumas. The WCAB stated:

Here, the issue presented is whether there were two cumulative trauma injuries with different dates of injury per Aetna Casualty & Surety Co. v. Workmen’s Comp. Appeals Bd. (Coltharp) (1973) and Ferguson v. City of Oxnard (1970) 35 Cal. Comp. Cases 452 (Appeals Board en bane) (separate cumulative injuries occur where “periods of disability and/or need for medical treatment [are] interspersed within the alleged course of the repetitive activities”) or there was a single cumulative trauma with one date of injury (i.e., the first period of compensable temporary disability) because the periods of temporary disability were linked by a continued need for medical treatment under Western Growers Ins. Co. v. Workers’ Comp. Appeals Bd. (Austin) (1993) 16 Cal.App.4 t11 227 [58 Cal. Comp. Cases 323].) Of course, the number and nature of the injuries

suffered are questions of fact for the WCJ or the Appeals Board. (Western Growers Ins. Co. (Austin), 16 Cal. App. 4 th at pp. 234-235; Aetna Cas. & Surety Co. (Coltharp) 35 Cal. App. 3d at p. 341.)

^When Western Growers (Austin) is read in conjunction with the Labor Code section 3208.1 definition of “cumulative injury,” the anti-merger provisions of

Labor Code sections 3208.2 and 5303, and the holding of Aetna Casualty (Coltharp), the following principles apply: (1) if, after returning to work from a

period of temporary disability and a need for medical treatment, the employee’s repetitive work activities again result in injurious trauma (i.e., if the employee’s occupational activities after returning to work from a period of temporary disability cause or contribute to a new period of temporary disability, to a new or an increased level of permanent disability, or to a,?new or increased need for medical treatment), then there are two separate and distinct cumulative injuries that cannot be merged into a single injury (Lab. Code §§ 3208.1, 3208.2, 5303;

Aetna Casualty (Coltharp), supra, 35 Cal. App. 3d. at p. 342); and (2) if, however, the employee’s occupational activities after returning to work from a period of industrial temporary disability are not injurious (i.e., if any new period of temporary disability, new or increased level of permanent disability, or new or increased need for medical treatment result solely from an exacerbation of the original injury), then there is only a single cumulative injury and no impermissible merger occurs. (Lab. Code §§ 3208.1, 3208.2, 5303; Western Growers (Austin), supra, 16 Cal.App.4h at p. 235.)

The Board in analyzing the medical evidence indicated it appeared to the panel the applicant had sustained two cumulative trauma injuries. The first from October 1985, to February 11, 2001, and then a possible second cumulative trauma injury from November 13, 2002, through March 30, 2006. The Board indicated the AME in rheumatology was in the best position to comment on whether the applicant suffered one or two cumulative trauma injuries and pursuant to their authority to develop the record under Labor Code section 5906 they remanded the matter for further development of the record by additional reporting from the AME on the sole issue of whether the applicant suffered one or two cumulative trauma injuries. If the applicant suffered two cumulative trauma injuries, then the WCJ had to make a determination of apportionment of disability between the two separate cumulative trauma injuries under Benson.

LeBoeuf Issues/Considerations.

(For earlier cases, please see previous case law update, “January 2011”, pages 109-113 at PBW-Law.com )

Bacon v. County of Los AnReles (2011) 2011 Cal. Wrk. Comp. P.D. LEXIS 148

(Panel Decision)

Case Summary: Applicant suffered injuries to his back, and psyche as a result of a cumulative trauma from December 31, 1984 to June 3, 2002.

The case has a complicated procedural history. In 2008 applicant was awarded and found to be 100% permanently totally disabled. The applicant’s award of 100% permanent total disability was based on applicant’s non-feasibility for vocational rehabilitation as indicated in the LeBoeuf case. Defendant filed for Reconsideration which was granted. The Board then issued its own opinion and decision indicating applicant’s injury caused 75% permanent disability after apportionment. Applicant then filed for Reconsideration of the Board’s decision which was granted. In 2009 the WCAB issued their second opinion and decision after reconsideration finding the 1997 Permanent Disability Rating Schedule applied and remanded the case for further proceedings. In January of 2011, the WCJ issued a Findings & Award indicating the applicant was 100% permanently totally disabled without apportionment. Defendant predictably filed for reconsideration. Reconsideration was granted and the WCAB rescinded the WCJ’s decision issuing a new Findings and Award finding the applicant had suffered 94% permanent disability after apportionment based on the applicant’s non- industrial cognitive deficiency which rendered the applicant non feasible for vocational rehabilitation services.

Discussion: This case is significant in that it deals with the interaction of Labor Code Section 4663 and the LeBoeuf doctrine or principle. The Board emphasized that in this case, LeBoeuf and the concept of vocational non-feasibility could not be used to increase the applicant’s overall permanent disability. The Board stated:

We conclude that the doctrine of LeBoeuf here does not help applicant to increase his overall permanent disability since his pre-injury feasibility was primarily caused by non-industrial factors. Labor Code Section 4663 requires us to apportion applicant’s disability to “other factors” which are present in this case. The employer shall only be liable for the percentage of permanent disability directly caused by the industrial injury. (Labor Code Section 4664)

The Board again stressed the applicant’s non-feasibility for vocational rehabilitation was primarily caused by non-industrial factors which cannot be ignored for purposes of applying apportionment to causation under Labor Code Section 4663. The Board identified the non-industrial factor as applicant’s long standing non-industrial cognitive deficiency.

Giroux Glass v. WCAB (Hatley) (2012) 77 Cal. Comp. Cases 730; 2012 Cal. Wrk. Comp. LEXIS 105 (writ denied)

Case Summary: Applicant sustained a cumulative trauma injury while working as a glazier. He underwent three separate lumbar spine surgeries and also had compensable consequence injuries of internal, urological, and psychiatric. Following trial the WCJ issued an unapportioned Award of 100% permanent total disability after considering and applying LeBoeuf finding no applicable Labor Code § 4663 apportionment to non-industrial factors. The defense Petition for Reconsideration was denied by the Board and the writ was denied.

Discussion: The WCJ’s and WCAB’s determination the applicant was 100% permanently totally disabled was based on a combination of medical reporting and also testimony from applicant’s vocational rehabilitation expert at trial which was =rebutted by defendant. At trial applicant’s vocational rehabilitation expert indicated applicant’s physical impairments and related disability, combined with the side effects of the applicant’s medication, rendered him unable to compete in the open labor market. Evidently applicant had significant side effects from the pain medications that were prescribed for his industrial injuries.

It is important to note the defendant basically presented no evidence in the case to rebut the findings and determination of the applicant’s vocational rehabilitation expert on the applicant’s inability to compete in the open labor market.

However, what is important in this case is how the LeBoeuf decision interacts with Labor Code § 4663. The WCJ in this case correctly determined the overall permanent disability including applying the principles of LeBoeuf to arrive at the 100% permanent total disability determination. Once the overall disability including the application of LeBoeuf is made, then the WCJ/trier of fact has to apply Labor Code § 4663 apportionment to determine whether there are any non-industrial factors that are contributing to the overall permanent disability in the case. In this particular case the judge determined there were no non-industrial factors and all of the alleged factors were industrial and were solely caused by the applicant’s industrial injury and use of pain medication to treat the industrial injury.

Brown v. Southern California Permanente Medical Group (2012) 2012 Cal.

Wrk Comp. P.D. LEXIS 557 (Panel Decision)

Case Summary: WCJ issued a decision finding that applicant suffered a cumulative trauma causing 100% permanent total disability and need for further medical treatment. The WCJ indicated there was no basis for apportionment. In her opinion the WCJ noted that her determination of 100% permanent total disability was based on the reports of three Agreed Medical Examiners and LeBoeuf. The WCJ determined that applicant’s permanent total disability was based on the provision of Labor Code § 4662 and was “determined in accordance with the fact.”

Defendant filed a Petition for Reconsideration which was granted. The WCAB rescinded the WCJ’s award of 100% permanent total disability indicating that the current record did not support the application of a LeBoeuf analysis and that contrary to the judge’s decision the multiple AME reports in the case supported apportionment to non-industrial factors.

Discussion: The WCJ in this case mistakenly concluded that because applicant was deemed 100% permanently totally disabled under the Labor Code § 4662 proviso “in accordance with the fact.” That such a conclusive presumption precluded apportionment of any kind including prior awards as well as non-industrial contributing factors. However, the WCAB articulated problems with the WCJ’s analysis. First, with respect to apportionment contrary to the WCJ’s Opinions on Decision, Findings as well as her Report on Reconsideration, all of the Agreed Medical Examiners in the case indicated there was a basis for non-industrial apportionment. More importantly, the Board noted the application of LeBoeuf under the present facts in this case was not justified. Applicant merely raised LeBoeuf as an issue at trial but offered no vocational evidence showing that her injury impaired her rehabilitation or her ability to compete in the open labor market. The WCAB noted that even if applicant’s industrial injury caused total permanent disability under LeBoeuf, the requirement for sections 4664 and 4663 would still need to be addressed.

The Board rescinded the unapportioned award of 100% permanent disability and returned it to the trial level for further proceedings and a new decision by the WCJ that fully explains the reasons for the decision and takes into account all the evidence, including the medical reporting of the three AMEs that indicated substantial non-industrial apportionment.

7 . Causation of Disability Versus Causation of Injury.

(For earlier cases on this issue, please refer to prior case law update, “January 2011”, pages 118-120 at PBW-Law.com)

Parka v. City of Fresno (2011) 2011 Cal. Wrk. Comp. P.D. LEXIS 238 (Panel Decision)

Case Summary: Applicant, a police officer, suffered a cumulative trauma injury through December 1, 2006 to his right big toe and right knee, resulting in permanent disability of 9% after apportionment of 50%, i.e., applicant would have received an 18% Award, but for apportionment of 50%. Applicant filed a Petition for Reconsideration, which was granted. The WCAB amended the WCJ’s decision and awarded applicant an unapportioned permanent disability Award of 18%.

Discussion: This case is significant, in that it deals with the issue of causation of injury versus causation of disability. There has been confusion on this issue by WCJs, physicians, and attorneys. While Labor Code §4663 uses the term “causation,” it applies strictly to causation of disability or impairment, not causation of injury A0E/COE.

In this particular case, the applicant did have a diabetic condition at the time he experienced his cumulative trauma injury to his right big toe. Applicant was assigned to the Fresno airport and it was required that he wear certain boots, which met the regulations imposed by his employer. The reporting Panel QME indicated that as a result of the applicant being on his feet prolonged periods of time and wearing the required boots, applicant’s right toe became infected and had to be amputated on January 4, 2007. With respect to apportionment, the Panel QME determined applicant was suffering from Type II diabetes, which he then also opined was the underlying cause and preexisting pathology, which was aggravated as a result of the physical demands of applicant’s job. This led to the 50% apportionment to the applicant’s diabetes and 50% due to the applicant’s industrial cumulative trauma.

The WCAB, in awarding applicant an unapportioned award of 18%, articulated their view as to the doctor’s confusion as to causation of disability with causation of injury as follows:

“His January 4, 2009 report is faulty on the issue of apportionment under Labor Code §4663, because it confuses industrial causation and causation of permanent disability, which are two different issues. (Reyes v. Hart Plastering) (2005) 70 Cal. Comp. Cases 223 [Significant Panel Decision].) That is, applicant was susceptible to the big toe injury because of his diabetes, but it was the job activity of standing and walking in regulation boots which injured the susceptible big toe. As shown by Dr. Tabaddor’s deposition testimony, once applicant’s big toe was injured and amputated, this caused a permanent disability in which diabetes no longer played a part.”

The Board also noted that during the course of his deposition the Panel QME indicated that, but for applicant wearing the boots he was required to wear at work, he would not have had the amputation of his big toe, and, more importantly, the doctor indicated there was no impairment rating attributable to the diabetes, only the amputation. Again, although it was the combination of the industrial wear and tear on the toe and the non-industrial diabetes which caused the amputation, applicant’s pre-existing diabetes was not causing disability at the time of the evaluation. The Board noted that with respect to apportionment, 50% of nothing is nothing! The doctor’s opinion as to apportionment did not constitute substantial evidence under Labor Code §4663 because there was no impairment from the diabetes, nor was it causing disability at the time of the doctor’s evaluation, citing Escobedo.

Anderson v. Jaguar/Landrover of Ventura (2012) 2012 Cal. Wrk. Comp. P.D.

LEXIS 327 (WCAB Panel Decision)

Case Summary: Applicant suffered an admitted right shoulder injury while working as an automobile mechanic on September 2, 2008. As a result of the injury applicant had shoulder surgery and within 24 hours of the shoulder surgery suffered a stroke.

The WCJ issued an Award on May 2, 2012, finding the applicant 100% permanently totally disabled. Defendant filed a Petition for Reconsideration and among other issues contended that there was a basis for Labor Code 4663 apportionment related to diabetes and other “pre-existing risk factors” that existed before the applicant’s specific injury of September 2, 2008. The WCAB denied defendant’s Petition for Reconsideration finding no basis for valid Labor Code Section 4663 apportionment and indicating defendant had confused causation of injury with causation of disability.

Discussion: The reporting physician in this case was a SPQME in neurology. As indicated hereinabove there was no dispute by defendant that applicant was 100% permanently totally disabled but defendant contended there was a valid basis for Labor Code Section 4663 apportionment to non-industrial factors.

The WCAB confirmed that applicant did have pre-existing risk factors including severe diabetes that required a diabetic pump and had been symptomatic with some episodes of memory loss, etc. Applicant also had a 25 year smoking history with hypertension and hyperlipidemia. As a consequence, in one particular report the SPQME apportioned 40% of the applicant’s neurological disability to the applicant’s pre-existing comorbidity medical factors and 60% of the neurological disability to the admitted shoulder injury and subsequent shoulder surgery that led directly to the stroke within 24 hours of the shoulder surgery.

The WCAB went through an extensive discussion of the SPQME’s reports and deposition. The SPQME acknowledged that the pre-existing risk factors by themselves without the stress of the surgery which caused the stroke would not have become symptomatic and labor disabling by the time of his MMI evaluation had he not had the shoulder surgery. The WCAB summarized the

SPQME’ s opinion that the applicant’s stroke was caused by the shoulder surgery but the enumerated and articulated pre-existing risk factors pre-disposed him to have the stroke.

The WCAB concluded the SPQME’s reporting did not constitute substantial medical evidence and did not support the apportionment indicated. In discussing the issue of causation of injury versus causation of disability the Board stated:

It is apparent from his reporting in this case that Dr. Krell confuses causation of injury with causation of disability in offering an apportionment opinion. While it may be that applicant had pre-existing risk factors that predisposed him to suffer a stroke, Dr. Krell repeatedly confirmed in his reporting and during his deposition that applicant had no pre-existing permanent disability because of those risk factors. He further confirmed that applicant’s total permanent disability was caused entirely by the effects of the stroke he suffered as a result of the surgical medical treatment of his admitted industrial injury, but he never opined with reasonable medical probability that the permanent disability caused by the stroke was in any way increased because of those pre-existing nonindustrial risk factors. (See, United Airlines v. Workers’ Comp. Appeals Bd. (Milivojevich) (2007) 72 Cal. Comp. Cases 1415 (writ den.) [improper to apportion part of permanent disability cause by industrial stroke injury to applicant’s pre-existing high cholesterol stroke risk factor].)

In short, applicant’s pre-existing conditions may have contributed to the causation of his stroke injury, but there is no evidence that any portion of the total permanent disability caused by the stroke is reasonably medically attributable to those pre-existing conditions.

Applicant’s total permanent disability was caused entirely by the stroke he suffered as a result of the medical treatment of his industrially injured right shoulder, and no portion is attributable to his pre-existing conditions. Thus, there is no basis for apportionment as opined by Dr. Krell who followed an incorrect legal theory by apportioning to causation of injury instead of causation of disability.

Stevenson v. Bloominkdale’s/Macv Corporate Services (2012) 2012 Cal. Wrk.

Comp. P.D. LEXIS 603 (Panel Decision)

This is an excellent case dealing with a number of issues in a psychiatric injury case primarily focusing on causation of injury as opposed to causation of permanent disability (apportionment).

Applicant a sales associate alleged a nine month CT from February 28, 2008, to November 23, 2008. The alleged psychiatric injury was premised on a hostile work environment. Defendant countered with defenses of post termination claim and good faith personnel action in disputing injury A0E/COE.

The WCJ found injury A0E/COE. Defendant filed for reconsideration which was granted. The WCAB rescinded the WCJ’s decision and remanded the case for a new decision consistent with the Board’s decision.

The WCAB found the psychiatrist reporting on behalf of applicant failed to follow required analysis under Rolda for determining whether there has been a psychiatric injury in the context of a good faith personnel action defense. With respect to the Rolda analysis the WCAB stated:

Section 3208.3, subdivision (h) provides that “[n]o compensation under this division shall be paid by an employer for a psychiatric injury if the injury was substantially caused by a lawful nondiscriminatory, good faith personnel action. The burden of proof shall rest with the party asserting the issue.” Under Rolda, supra, 66 Cal. Comp. Cases 241, when an applicant alleges a psychiatric injury and defendant raises a defense of lawful, nondiscriminatory, good faith personnel action, a multilevel analysis is required. As set forth in Rolda:

“The foregoing analysis requires the evaluating physicians to take a history of all events alleged to have contributed to the psychiatric injury, to render an opinion as to causation in terms of first whether the employment events were a predominant, or greater than fifty percent, cause of the injury. Then, where it has been claimed, as here, that the applicant’s injury is the result of a lawful, nondiscriminatory, good faith personnel action, the evaluating physicians must also offer their opinion as to the percentage of causation for any such alleged or apparent actions.” (Rolda, supra, 66 Cal. Comp. Cases p. 246.)

The above Rolda analysis focuses primarily on causation of injury A0E/COE. However, once the issue of causation of injury A0E/COE is determined an examining physician must carefully then address apportionment of any resultant disability if psychiatric injury is found. The WCAB clarified the required analysis as follows:

In order for his opinion to be substantial evidence, Dr. Curtis should have discussed industrial causation as set forth in section 3208.3, then determined applicant’s permanent disability as a result of her psychiatric injury, and then if he found that other causes of applicant’s disability from her psyche injury existed, apportion between industrial and non-industrial causes. (See Lab. Code,

3208.3, 4663, subd. (c), 4664, subd. (a); Benson v. Permanente Medical Group (2007) 72 Cal. Comp. Cases 1620 (Appeals Board en bane) (Benson); Kopping v. Workers’ Comp. Appeals Bd. (2006) 142 Cal. App. 4 th 1099 [71 Cal. Comp. Cases 1229] (Kopping).) Instead, Dr. Curtis mixed together all of the multiple preexisting causes of applicant’s psychiatric disability, both industrial and non-industrial, and did not apportion between them. With respect to applicant’s history, he made numerous factual errors, and his report lacked a comprehensive discussion of the circumstances of applicant’s termination. Thus, even without considering Rolda, supra, as discvssed below, we cannot find that his reports were substantial evidence.

The Board commented that applicant’s reporting psychiatrist never even referred to Rolda in his report and never laid out the required analysis. As a consequence, his reports were deemed not to constitute substantial medical evidence resulting in the WCAB remanding the case back to the trial level.

TABLE OF AUTHORITIES

Acosta v. M.A.M. Design Center, Inc, (2013) 2013 Cal. Wrk. Comp. P.D. LEXIS 2 (Panel Decision)

Aetna Casualty & Surety Co. v. Workmen’s Comp. Appeals Bd. (Coltharp) (1973)

Allen v. UC San Francisco (2011) 2011Cal. Wrk. P.D. LEXIS 411 (Panel Decision)

Anderson v. Jaguar/Landrover of Ventura (2012) 2012 Cal. Wrk. Comp. P.D. LEXIS 327 (WCAB Panel Decision)

Anderson v. W.C.A.B. (2007) 149 Cal. App.4 ^th, 1369, 72 Cal, Comp. Cases 389, 398

Bacon v. County of Los Angeles (2011) 2011 Cal. Wrk. Comp. P.D. LEXIS 148 (Panel Decision)

Bardley v. R.R. Donnelley Financial, Gallagher Bassett (2012) 2012 Cal. Wrk. Comp. P.D. LEXIS 224 (Panel Decision)

Bates v. WCAB (2012) 77 Cal. Comp. Cases 636; 2012 Cal, Wrk. Comp. LEXIS 80 (writ denied)

Benson v. Permanente Medical Group (2007) 72 Cal..Cornp. Cases 1620 (Appeals Board en bane)

Berry v. WCAB (1968) 68 Cal. 2d. 786, 788-790, 33 Cal. Comp. Cases 352

Best Buy Company, Inc.; Ace American Insurance Company v. WCAB (Nguyen) (2012) 2012 Cal, Wrk, Comp. LEXIS 152 (writ denied)

Blackledge v. Bank of America (2010) 75 CCC 613

Blackmon v. Monterey Peninsula Unified School District (2011) 2011 Cal. Wrk. Comp. P.D. LEXIS 353 (Panel Decision)

Briceno v. Los Angeles Unified School District (2012) 2012 Cal. Wrk, Comp. P.D. LEXIS 226 (WCAB Panel Decision)

Bridgestone Firestone v. WCAB (Fussell) (2011) 76 Cal. Comp. Cases 1326; 2011 Cal. Wrk, Comp. LEXIS 179

(writ denied)	23
Brodie v. WCAB (2007) 40 Cal. 4 th 1313, 72 Cal Comp. Cases 565	4, 6, 34

Brown v. Southern California Permanente Medical Group (2012) 2012 Cal. Wrk Comp. P.D. LEXIS 557 (Panel

Decision)	58
Corbitt v. Media Quest, CIGA (2012) 2012 Cal. Wrk. Comp. P.D. LEXIS 458 (WCAB panel decision)	50
Costa v. WCAB (2011) 76 Cal. Comp. Cases 261; 2011 Cal. Wrk. Comp. LEXIS 25 (writ denied)	11
Cruzaley v. Spin Cycle Coin, SCIF (2012) 2012 Cal.Wrk. Comp. P.D. LEXIS 509 (WCAB panel decision)	29
De Fazio v. L.A.U.S.D. (2012) 2013 Cal. Wrk. Comp P.D. LEXIS 568 (Panel Decision)	52
Driver v. Holt Rinehart & Winston (2012) 2012 Cal. Wrk. Comp. P.D. LEXIS 571 (Panel Decision)	48
E.L. Yeager Construction v. WCAB (2006) 145 Cal. App. 4th 922, 71 Cal. Comp. Cases 1687	5,6,8
Edwards v. SCIF (2011) 2011 Cal. Wrk. Comp. P.D. LEXIS 429 (Panel Decision)	24
Escobedo v. Marshalls (2005) 70 Cal, Comp. Cases 604,617	5
Ferguson v. City of Oxnard (1970) 35 Cal. Comp. Cases 452 (Appeals Board en banc)	55
Gay v. WCAB (1979) 96 Cal, App. 3 rd 555; 44 CCC 817	8

Giroux Glass v. WCAB (Halley) (2012) 77 Cal. Comp. Cases 730; 2012 Cal. Wrk. Comp. LEXIS 105 (writ denied)

Guerrero v. Wellpoint Health Network, CIGA; Zurich Insurance (2012) 2012 Cal. Wrk. Comp. P.D. LEXIS 129

(WCAB Panel Decision) ₅₄

Guzman v. State Compensation Insurance Fund (2012) 2012 Cal. Wrk. Comp. P.D. LEXIS 413 (WCAB Panel

Decision) ₅₃

Harris v. State of California, Department of Consumer Affairs, SCIF (2011) 2011 Cal. Wrk. Comp. P.D. LEXIS

71 (Panel Decision) ₄₈

Hegglin v. WCAB (1971) 4 Cal. 3d 162; 36 CCC 93 ₈

Hill v. Securitas Security Services USA, Inc. (2012) 2012 Cal. Wrk, Comp. P.D. LEXIS 294 (Panel Decision) 29

Idaho Maryland etc. Corp. v. IAC (1951) 104 Cal. App. 2d 567, 16 Cal. Comp. Cases 146 4

Joong Kwong v. Metro Building Maintenance, National Union Fire Insurance Company, CIGA (2011) 2011 Cal.

Wrk. Comp. P.D. LEXIS 36 (Panel Decision)	45
Kleeman V. WCAB (2005) 127 Cal. App. 46 274, 284-285, 70 Cal, Comp. Cases 133	5
Koeplin v. Nella Oil Company (2011) 2011 Cal. Wrk. Comp. P.D. LEXIS 35 (Panel Decision)	10
Kopping v. WCAB (2006) 142 Cal. App.4 th 1099; 71 CCC 1229	7, 38, 63

Lakew v. San Francisco Hilton Hotel & Tower (2011) 2011 Cal. Wrk, Comp. P.D. LEXIS 326 (Panel Decision) 39

LaRue v. Nordman, Cormany, Hair & Compton (2011) Cal. Wrk. Comp. P.D. LEXIS 37 (Panel Decision)		13
Lester v. WCAB (2011) 76 Cal. Comp. Cases 1224; 2011 Cal. Wrk. Comp. LEXIS 162 (writ denied)		46
Martinez v. Southern California Edison	(2012) 2012 Cal. Wrk. Comp. P.D. LEXIS 586 (Panel Decision)	25
Mercier v. WCAB (1976) 16 Cal. 3d 711	(41 Cal.Comp.Cases 205)	37, 38
Montgomery v. Dirt Movers (SCIF) (2012) 2012 Cal. Wrk. Comp. P.D. LEXIS 479 (WCAB panel decision)		35

Moran v.Department of Youth Authority, Legally Uninsured State Compensation Insurance Fund (2011) 2011
Cal. Wrk. P.D. LEXIS 43 (Panel Decision)	37
Newman v. WCAB (1984) 152 Cal. App. 3d 219 [49 Cal.Comp.Cases 126]	38
Ortiz v. Orange County Transportation Authority, PSI (2012) 2012 Cal. Wrk. Comp. P.D. LEXIS 429 (WCAB
Panel Decision)	42
Parka v. City of Fresno (2011) 2011 Cal. Wrk. Comp. P.D. LEXIS 238 (Panel Decision)	60
Piper v. WCAB (2012) 77 Cal. Comp. Cases 661; 2012 Cal. Wrk. Comp. LEXIS 89 (writ denied)	51

Pruitt v. Califbrnia Department of Corrections, State Compensation Insurance Fund (2011) 2011 Cal. Wrk, P _D.

LEXIS 553 (Panel Decision)	14
Pullman Kellogg v. WCAB (1980) 26 Cal, 3d 450, 454, 45 Cal. Comp. Cases 170	4
Reyes v. Hart Plastering (2005) 70 Cal, Comp. Cases 223 (Significant Panel Decision)	60
Robinson v. WCAB (Count) , of Sonoma) (2011) 76 Cal, Comp. Cases 847; 2011 Cal, Wrk. Comp. LEXIS 112
(Writ denied July 21, 2011; Writ of Review filed with Supreme Court denied on September 14, 2011)	33

Ruybal v. State of California, State Compensation Insurance Fund/State Contract Services (2012) 2012 Cal. Wrk.

Comp. P.D. LEXIS 436 (WCAB Panel Decision)	40
Sanchez v. County of Los Angeles (2005) 70 CCC 1440 (Appeals Board En Banc)	38
Sean Gilbert v. Oakland Raiders; ACE USA, Administered by ESIS (2012) 77 Cal. Comp. Cases 457	25
Serrano v. General Motors Corporation (2013) 2013 Cal. Wrk, Comp. P.D. LEXIS 28 (Panel Decision	41
Slagle v. WCAB (2012) 77 Cal. Comp. Cases 467 (writ denied)	16
Solano County Probation Department v. WCAB (Aguilar) (2011) 76 Cal. Comp. Cases 1, (Court of Appeal, First
Appellate District, not certified for publication)	21

State Compensation Insurance Fund v. WCAB (Dorsett) (2011) 201 Cal. App. 4 ili 443; 72 Cal. Comp. Cases 1138 49

State Compensation Insurance Fund v. WCAB (Luis)

46 (writ denied)

Stevenson v. Bloomingdale’s/Macy Corporate Services Decision)

(2012) 77 Cal. Comp. 470; 2012 Cal. Work Comp. LEXIS

(2012) 2012 Cal. Wrk, Comp. P.D. LEXIS 603 (Panel

Swanier v. Western Star Transportation (2013)	2013	Cal. Wrk. Comp. P.D., LEXIS 29 (Panel Decision)	16
Thomas v. Long Beach Unified Schools (2012)	2012	Cal. Wrk. Comp. P.D. LEXIS 317 (WCAB Panel Decision)30
Torres v. Albertsons (2012) 2012 Cal. Wrk. Comp. P.D. LEXIS 393 (WCAB Panel Decision)			18
United Airlines v. Workers’ Comp. Appeals Bd. (Milivoievich) (2007) 72 Cal. Comp. Cases 1415 (writ den.)			62
Vargas v. Atascadero State Hospital (2006) 71 Cal. Comp. Cases 500 (en bane)			42
Visalia Unified School District v. WCAB (Marshall) (2011) 76 Cal. Comp. Cases 1255; 2011 Cal. Wrk. Comp.f
LEXIS 177 (writ denied)			47

Western Growers Ins. Co. v. Workers’ Comp. Appeals BD. (Austin) (1993) 16 Cal.App.4 ¹ 227; 58 Cal. Comp. Cases 323

Williams v. Apollo Couriers (2011) 2011 Cal. Wrk. Comp, P.D. LEXIS 350 (Panel Decision)

Williams v. The Boehm Company (2012) 2012 Cal. Wrk. Comp. P.D. LEXIS 396 (WCAB Panel Decision)

Wynne v Lumend, Inc. (2011) 2011 Cal. Wrk. Comp. P.D. LEXIS 199 (Panel Decision)

Zemke v. WCAB (1968) 68 Cal. 2d 794, 796-799, 33 Cal. Comp. Cases 358

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