What the panel ordered
Petition for Reconsideration granted; final decision after reconsideration deferred pending further review of merits and entire record.p. 18
Applicant sought reconsideration of the Findings of Fact, Orders and Award issued by the WCJ on April 6, 2026. The WCJ had found apportionment supported by substantial evidence and denied a joint 100% permanent disability award. The WCJ's Report and Recommendation on Petition for Reconsideration recommended denial. The Appeals Board granted the Petition for Reconsideration and deferred final decision pending further review.
This docket was decided more than once. Shown here is the latest released decision; we also hold April 7, 2025.
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 Appeals Board found that the record may be incomplete regarding apportionment and that the WCJ's reliance on Dr. Hasday's apportionment opinion was persuasive but could be improved. The Board granted reconsideration to further study the factual and legal issues, deferring final decision.
From the decision · page 5However, providing two separate awards for the exact same disability is not supported by the law and would result in an impermissible double recovery for the applicant. If apportionment assigned by Dr. Hasday for the two injuries is not deemed substantial medical evidence, the appropriate remedy would be to rate the injuries together and issue one award for both injuries. Pursuant to Benson, “[…] 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 an employee’s overall permanent disability. In such limited circumstances, when the employer has failed to meet its burden of proof, a combined award of permanent disability may still be justified.” (Benson v. Workers’ Comp. Appeals Bd., 170 Cal. App. 4th 1535, 1536.)
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Dr. Hasday's apportionment opinion was supported by substantial medical evidence and connected the evidence to his apportionment position.
Favours Defendant prevailed
This supported the WCJ's finding that apportionment was valid and substantial evidence existed.
From the decision · page 5Nevertheless, applicant is correct that defendant has the burden of proof on apportionment to establish the percentage of permanent disability caused by factors other than the industrial injury consistent with Escobedo v. Marshalls (2005) 70 Cal. Comp. Cases 604 at 613. Although Dr. Hasday’s would be improved by a cohesive explanation in the “apportionment section” addressing how and why each of the conditions and injuries are currently causing disability, the discussion throughout his reporting, easily connect the dots between the evidence and his apportionment position. As such, the undersigned finds that Dr. Hasday’s opinion on apportionment is persuasive and is supported by substantial medical evidence and should not be disregarded.
The record may be incomplete regarding apportionment, necessitating further review and reconsideration.
Favours neutral
This led the Appeals Board to grant reconsideration and defer final decision to ensure a just and reasoned outcome.
From the decision · page 15(Id.) Here, it appears from our preliminary review that the record may not be complete regarding the issue of apportionment. Taking into account the statutory time constraints for acting on the petition, and based upon our initial review of the record, we believe reconsideration must be granted to allow sufficient opportunity to further study the factual and legal issues in this case. We believe that this action is necessary to give us a complete understanding of the record and to enable us to issue a just and reasoned decision. Reconsideration is therefore granted for this purpose and for such further proceedings as we may hereafter determine to be appropriate.
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.
Provided a persuasive opinion on apportionment, identifying percentages of disability apportioned to specific injury and cumulative trauma, supported by substantial medical evidence.
Dr. Hasday obtained a complete history, reviewed diagnostic reports and medical records, and his apportionment opinion was found persuasive and supported by substantial evidence.
From the decision · page 4Dr. Hasday obtained a complete history from applicant and reviewed multiple diagnostic reports and medical records in connection with his physical examination. Applicant’s history of prior arduous work and prior injuries is supported by applicant’s own testimony and was documented in the medical records jointly offered by the parties. Dr. Hasday identifies a multitude of degenerative diagnostic findings and uses his extensive medical expertise to provide a persuasive opinion on apportionment. Wherefore, as the basis for his opinion is easily found throughout his reporting the undersigned did not find good cause to disregard the apportionment findings of Dr. Hasday.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Escobedo v. Marshalls (2005) 70 Cal. Comp. Cases 604
Apportionment of permanent disability is based on causation; employer liable only for percentage caused by industrial injury (Lab. Code, §§ 4663(a) and 4664(a)).
The Board applied this standard to evaluate the apportionment evidence and burden of proof.
From the decision · page 13Cal.4th 1313, 1321 [72 Cal.Comp.Cases 565]; Marsh v. Workers’ Comp. Appeals Bd. (2005) 130 Cal.App.4th 906, 911 [70 Cal.Comp.Cases 787.].) The 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 [71 Cal.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 (Escobedo) (2005) 70 Cal.Comp.Cases 604, 611 (Appeals Board en banc).) 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.
Pullman Kellogg v. Workers’ Comp. Appeals Bd. (Normand) (1980) 26 Cal.3d 450
The burden of proof to establish apportionment falls on defendant.
The Board recognized defendant's burden to prove apportionment.
From the decision · page 13Cal.4th 1313, 1321 [72 Cal.Comp.Cases 565]; Marsh v. Workers’ Comp. Appeals Bd. (2005) 130 Cal.App.4th 906, 911 [70 Cal.Comp.Cases 787.].) The 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 [71 Cal.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 (Escobedo) (2005) 70 Cal.Comp.Cases 604, 611 (Appeals Board en banc).) 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.
Vigil v. County of Kern (2024) 89 Cal.Comp.Cases 686
The Board discussed the standard for rebutting the CVC and adding impairments.
From the decision · page 6In Vigil, the Appeals Board held en banc that: “The Combined Values Chart (CVC) in the Permanent Disability Ratings Schedule (PDRS) may be rebutted and impairments may be added where an applicant establishes the impact of each impairment on the activities of daily living (ADLs) and that either: (a) there is no overlap between the effects on ADLs as between the body parts rated; or (b) there is overlap, but the overlap increases or amplifies the impact on the overlapping ADLs.” (Vigil (Sammy) v. County of Kern, 89 Cal. Comp. Cases 686 at 693.) However, Dr. Hasday does not rely on either of these situations to support his disregard for the CVC.
What proof carried it
The evidence the panel weighed, by kind.
Applicant's testimony and medical records supported history of prior arduous work and injuries, which Dr. Hasday used in his apportionment opinion.
From the decision · page 4Dr. Hasday obtained a complete history from applicant and reviewed multiple diagnostic reports and medical records in connection with his physical examination. Applicant’s history of prior arduous work and prior injuries is supported by applicant’s own testimony and was documented in the medical records jointly offered by the parties. Dr. Hasday identifies a multitude of degenerative diagnostic findings and uses his extensive medical expertise to provide a persuasive opinion on apportionment. Wherefore, as the basis for his opinion is easily found throughout his reporting the undersigned did not find good cause to disregard the apportionment findings of Dr. Hasday.
Dr. Hasday's apportionment opinion was persuasive and supported by substantial medical evidence, despite some noted deficiencies in explanation.
From the decision · page 5Nevertheless, applicant is correct that defendant has the burden of proof on apportionment to establish the percentage of permanent disability caused by factors other than the industrial injury consistent with Escobedo v. Marshalls (2005) 70 Cal. Comp. Cases 604 at 613. Although Dr. Hasday’s would be improved by a cohesive explanation in the “apportionment section” addressing how and why each of the conditions and injuries are currently causing disability, the discussion throughout his reporting, easily connect the dots between the evidence and his apportionment position. As such, the undersigned finds that Dr. Hasday’s opinion on apportionment is persuasive and is supported by substantial medical evidence and should not be disregarded.
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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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