Authorities as the decision cited them, with how this panel applied each one.
Labor Code section 4656(b)
Labor Code section 4656(b) limits temporary disability benefits to a maximum of 240 compensable weeks within five years of the date of injury.
Applied to defendant's contention regarding temporary disability benefits.
From the decision · page 1Defendant seeks reconsideration of the Joint Findings, Award & Order (FA&O) issued on
August 11, 2022, by the workers' compensation administrative law judge (WCJ). The WCJ found,
in pertinent part, that applicant sustained industrial injuries on November 15, 2021 to her back and
psyche (ADJ3590497), on April 23, 2002 to her neck, low back, left shoulder, left knee and psyche
(ADJ2549459) and on February 21, 2003 to her neck, back, left shoulder and psyche (ADJ108951).
The WCJ issued an award of temporary disability for (ADJ108951) from October 29, 2012 to April 6,
2016 and a joint award of 100% permanent disability with no basis for orthopedic apportionment.
Labor Code sections 4663 and 4664
Apportionment of permanent disability must be based on causation and the employer is liable only for the percentage of permanent disability directly caused by the industrial injury.
Applied to the issue of permanent disability apportionment.
From the decision · page 9The mere fact that a medical report assigns approximate percentages of industrial and
nonindustrial causation does not make the report reliable medical evidence by itself. (E.L. Yeager
Construction v. Workers' Comp. Appeals Bd. (Gatten) (2006) 145 Cal.App.4th 922, 927-928
[71Cal.Comp.Cases 1687].) Instead, apportionment of permanent disability is "based on causation"
and the "employer shall only be liable for the percentage of permanent disability directly caused by
the injury arising out of and occurring in the course of employment." (Lab.Code, § 4663(a) and
4664(a).) "The plain reading of `causation' in this context is causation of the permanent disability."
(Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 611 (Appeals Board en banc) (Escobedo).)
Apportionment now includes pathology, asymptomatic prior conditions, and retroactive prophylactic
work preclusions, provided there is substantial evidence establishing that these other factors have
caused permanent disability. Pursuant to Escobedo, a physician's opinion must rely on reasonable
medical probability, cannot be speculative, must rely on pertinent facts and/or an adequate
examination and history, and must set forth the reasoning in support of its conclusions. (Id. at p.621.)
That is, a physician must explain the "howand why" of their apportionment opinion (Ibid.) and
Benson v. The Permanente Medical Group (2007) 72 Cal.Comp.Cases 1620 (Appeals Board en banc)
Where a reporting physician cannot parcel out the approximate percentages to which each distinct industrial injury contributed to the overall permanent disability, a combined award is appropriate.
Discussed in relation to apportionment of permanent disability across multiple dates of injury.
Nunes v. State of California, Dept. of Motor Vehicles (2023) 88 Cal.Comp.Cases 741 (Appeals Board en banc)
Vocational expert opinions must set forth the history and evidentiary basis for their conclusions, including an explanation of how and why a condition results in permanent disability; vocational apportionment is not recognized under Labor Code section 4663.
Applied to reject vocational apportionment and require a supplemental report from the vocational expert.
From the decision · page 10With respect to vocational expert evidence, pursuant to Nunes v. State of California, Dept. of
Motor Vehicles (2023) 88 Cal.Comp.Cases 741 (Appeals Board enbanc) (Nunes I), the
Appeals Board held as follows: