ADJ11922456 — California WCAB decision

ADJ11922456 · March 1, 2021

Petition for Reconsideration granted; Findings and Award amended to find no substantial evidence for apportionment, defendant did not meet burden of proof on apportionment, and injury caused 20% permanent partial disability; Award amended accordingly.

Issues decided

Medical opinions weighed

Authorities named

District office

San Diego

What the panel ordered

Petition for Reconsideration granted; Findings and Award amended and affirmed except as to apportionment and permanent disability percentage.

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What was disputed, and how it came out

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

ApportionmentApplicant prevailedwhole person

Dr. Bressler's apportionment opinion was found not to be substantial evidence because it lacked explanation and reasoning for the apportionment percentages and method used. Additionally, the statutory presumption under Labor Code 3212 for police officers' hernia injuries precluded apportionment to non-industrial factors. Therefore, defendant did not meet its burden of proof on apportionment and the permanent disability was increased to 20%.

From the decision · page 2AME Dr. Bressler evaluated applicant on April 10, 2019. Dr. Bressler examined applicant, took a history, and reviewed the medical record. (Joint Exh. 1, Dr. Bressler, April 23, 2019.) He diagnosed applicant as having GERD and stated that applicant's condition was permanent and stationary. (Joint Exh. 1, p. 8.) Regarding the cause of applicant's whole person impairment and apportionment of his disability, Dr. Bressler stated:

The facts that decided it

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

Dr. Bressler's apportionment opinion lacked explanation and reasoning and was not substantial evidence.

Favours Applicant prevailed

Without substantial evidence on apportionment, defendant did not meet burden of proof, leading to increased permanent disability rating.

From the decision · page 4thirds of his impairment to industrial factors, and one-third to nonindustrial factors. (Joint Exh. 1, p. 8, emphasis in original.) Dr. Bressler clearly stated his conclusions and identified the three factors, but he provided no analysis or reason explaining the "relative equivalency of their contributions" nor his use of a "rational tally method" in determining proper apportionment. Also, Dr. Bressler did not explain how and why those factors are responsible for the percentage of disability he assigned. (Escobedo, supra.) Thus, his opinion regarding apportionment is not substantial evidence. Further, pursuant to the provisions of Labor Code section 3212, as to an injury claim made by a city or county police officer, a hernia injury is presumed to "arise out of and in the course of the employment" and the hernia "...shall in no case be attributed to any disease existing prior to that development or manifestation." (Lab.

Statutory presumption under Labor Code 3212 for police officers' hernia injuries precludes apportionment to non-industrial factors.

Favours Applicant prevailed

This legal presumption supports applicant's claim and prevents reduction of disability due to non-industrial causes.

From the decision · page 4Code, § 3212.) Applicant was employed as a police officer for the City of Oceanside and there was no evidence submitted at trial that rebutted the presumption. Based thereon, applicant's disability, for which the hernia was a causative factor identified by Dr. Bressler, cannot be apportioned to any other factors. Accordingly, we grant reconsideration, and affirm the F&A except that we amend the F&A to find that the report of Dr. Bressler is not substantial evidence as to apportionment and that defendant did not meet its burden of proof regarding apportionment (Finding of Fact 5), and that the injury caused 20% permanent partial disability (Finding of Fact 6); and we amend the Award based thereon.

The rules the panel named

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

Lab. Code 3202.5; Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604 (Appeals Board en banc)

Substantial evidence required for apportionment of permanent disability to non-industrial factors or previous industrial injuries.

Defendant did not meet burden of proof on apportionment due to lack of substantial evidence.

From the decision · page 3attributable to other industrial injuries or to nonindustrial factors, in order to fairly allocate legal responsibility. (Brodie v. Workers' Comp. Appeals Bd. (2007) 40 Cal.4th 1313, 1321 [72 Cal.Comp.Cases 565].) The employer has the burden of proof to establish apportionment of permanent disability to non-industrial factors or previous industrial injuries with substantial evidence. (Lab. Code § 3202.5; Kopping v. Workers' Comp. Appeals Bd. (2006) 142 Cal.App.4th 1099, 1114-1115 [71 Cal.Comp.Cases 1229].) Substantial medical evidence supporting apportionment of permanent disability must be based on the correct history and legal theory, it must include the reasoning for the physician's opinion and, and it cannot be based on speculation or an unsupported conclusion. (E.L. Yeager Construction v. Workers' Comp. Appeals Bd. (Gatten) (2006) 145 Cal.App.4th 922, 928-929 [71 Cal.Comp.Cases 1687].) In order to constitute substantial evidence as to the issue of apportionment, the medical opinion must disclose the reporting physician's familiarity with the concepts of apportionment and must delineate the approximate percentages of permanent disability due to the direct results of the injury and the approximate percentage of permanent disability due to other factors. (Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604 (Appeals Board en banc).)

Lab. Code 3212

Hernia injury for city or county police officer presumed to arise out of employment and not attributed to preexisting disease.

Presumption applied to applicant's hernia injury, precluding apportionment to non-industrial factors.

From the decision · page 4Code, § 3212.) Applicant was employed as a police officer for the City of Oceanside and there was no evidence submitted at trial that rebutted the presumption. Based thereon, applicant's disability, for which the hernia was a causative factor identified by Dr. Bressler, cannot be apportioned to any other factors. Accordingly, we grant reconsideration, and affirm the F&A except that we amend the F&A to find that the report of Dr. Bressler is not substantial evidence as to apportionment and that defendant did not meet its burden of proof regarding apportionment (Finding of Fact 5), and that the injury caused 20% permanent partial disability (Finding of Fact 6); and we amend the Award based thereon.

What proof carried it

The evidence the panel weighed, by kind.

Medical recordsfavours Applicant prevailed

Dr. Bressler's apportionment opinion lacked explanation and reasoning and was not substantial evidence.

From the decision · page 4thirds of his impairment to industrial factors, and one-third to nonindustrial factors. (Joint Exh. 1, p. 8, emphasis in original.) Dr. Bressler clearly stated his conclusions and identified the three factors, but he provided no analysis or reason explaining the "relative equivalency of their contributions" nor his use of a "rational tally method" in determining proper apportionment. Also, Dr. Bressler did not explain how and why those factors are responsible for the percentage of disability he assigned. (Escobedo, supra.) Thus, his opinion regarding apportionment is not substantial evidence. Further, pursuant to the provisions of Labor Code section 3212, as to an injury claim made by a city or county police officer, a hernia injury is presumed to "arise out of and in the course of the employment" and the hernia "...shall in no case be attributed to any disease existing prior to that development or manifestation." (Lab.

Other evidencefavours Applicant prevailed