What the panel ordered
The WCAB denied defendant's petition for reconsideration, affirming the WCJ's Findings and Award of permanent total disability without apportionment.
Defendant filed a petition for reconsideration challenging the WCJ's Findings and Award on permanent total disability and apportionment.
This docket was decided more than once. Shown here is the latest released decision; we also hold February 10, 2023.
What was disputed, and how it came out
Each issue the panel decided, with the reasoning it gave. An outcome is what this panel did on this record — not a rule, and not a prediction.
The WCJ and WCAB found that the QME's apportionment opinion was not substantial evidence because it apportioned to causation of injury (stroke) rather than causation of disability, and did not explain how risk factors caused the disability. Therefore, the award of 100% permanent total disability without apportionment was upheld.
From the decision · page 1Defendant seeks reconsideration of the Findings and Award (F&A), issued by the workers' compensation administrative law judge (WCJ) on June 2, 2025, wherein the WCJ found in pertinent part that applicant sustained injury arising out of and in the course of employment in the form of a stroke and to the psyche; that applicant's injury has resulted in permanent total disability; and that defendant has not met its burden of proof with regard to non-industrial apportionment.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Dr. Anderson testified that the risk factors made the stroke injury more likely but did not contribute to the severity of the stroke disability.
Favours Applicant prevailed
This testimony showed the QME apportioned to causation of injury, not causation of disability, which is legally insufficient for apportionment under Labor Code section 4663.
From the decision · page 12However, he testified that the risk factors did not contribute to the severity of the stroke. The severity of a stroke is the disability. In this case applicant suffered a severe stroke with catastrophic effects. She is: unable to ambulate; cannot perform most activities of daily living; unable to live independently, unable to use her left arm; cognitively impaired. Dr. Anderson's deposition testimony reflects his confusion about causation of injury with causation of disability. He stated that the risk factors made the injury more likely; however the risk factors did not contribute to the disability.
What the panel did with the medical opinions
The role the physician served, and the weight the opinion carried. Physicians are named here as the decision names them; we do not score them.
Dr. Anderson opined that the applicant's permanent disability was 100% due to the industrial stroke and resulting sequelae, and apportioned 40% of the permanent disability to risk factors (stress, hypertension, high cholesterol, diabetes) as causes of the stroke injury but not the disability. He testified that the risk factors made the stroke more likely but did not contribute to the severity (disability) of the stroke.
Dr. Anderson's apportionment was based on causation of injury (stroke) rather than causation of disability, which is legally insufficient for apportionment under Labor Code section 4663.
From the decision · page 1Defendant contends that Qualified Medical Evaluator (QME) Scott T. Anderson, M.D.'s apportionment analysis is substantial evidence and that the WCJ should have relied on the Dr. Anderson's opinion and the holding in Lindh to find valid apportionment.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Labor Code section 4663
Apportionment of permanent disability must be based on causation of the permanent disability, not causation of the injury.
The QME's apportionment was rejected because it apportioned to causation of injury rather than causation of disability, contrary to Labor Code section 4663.
From the decision · page 5Section 4663(a) states that "[a]pportionment of permanent disability shall be based on causation." The plain reading of "causation" in this context is causation of the permanent disability. This reading is consistent with other provisions of section 4663 and 4664. That is: (1) section 4663(b) provides that a physician's report on permanent disability shall address "the issue of causation of the permanent disability;" (2) section 4663(c) provides that a physician's report shall find "what approximate percentage of the permanent disability was caused by the direct result of injury... and what approximate percentage of the permanent disability was caused by other factors;" and (3) section 4664(a) provides that an employer "shall only be liable for the percentage of permanent disability directly caused by the injury....
Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604
A medical opinion on apportionment must disclose familiarity with apportionment concepts, identify factors causing permanent disability, and provide reasoning for approximate percentages assigned.
The QME's opinion was rejected for failing to explain how risk factors caused the disability and for conflating causation of injury with causation of disability.
From the decision · page 4In the context of apportionment determinations, the 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, so that the Appeals Board can determine whether the physician is properly apportioning under correct legal principles. (Escobedo, supra, 70 Cal.Comp.Cases at p. 621.) Our decision in Escobedo summed up the minimum requirements for an apportionment analysis as follows:
City of Petaluma v. WCAB (Lindh) (2018) 83 Cal.Comp.Cases 1869
The injury and disability may be distinct; apportionment must be to disability causation, not just injury causation.
Lindh was distinguished because in that case injury and disability were the same; here they are distinct and the QME did not apportion to disability causation.
What proof carried it
The evidence the panel weighed, by kind.
Dr. Anderson's deposition testimony that risk factors made the stroke more likely but did not contribute to the severity of the stroke disability.
From the decision · page 12However, he testified that the risk factors did not contribute to the severity of the stroke. The severity of a stroke is the disability. In this case applicant suffered a severe stroke with catastrophic effects. She is: unable to ambulate; cannot perform most activities of daily living; unable to live independently, unable to use her left arm; cognitively impaired. Dr. Anderson's deposition testimony reflects his confusion about causation of injury with causation of disability. He stated that the risk factors made the injury more likely; however the risk factors did not contribute to the disability.
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About this page
- A published decision of the California Workers' Compensation Appeals Board, taken apart by what it turned on. The Board publishes the decision itself; this page adds the extraction and quotes the passage behind every claim.
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