ADJ14815013 · March 16, 2026

The WCAB found that the record on permanent disability and apportionment under Labor Code section 4664 was insufficiently developed, requiring further development and reanalysis, leading to granting reconsideration and returning the matter to trial level.

From the decision · page 1Applicant seeks reconsideration of a workers' compensation administrative law judge's (WCJ) Findings of Fact and Award of December 19, 2025, wherein it was found that while employed on March 22, 2021 as a fire engineer, applicant sustained industrial injury to the neck and right shoulder causing permanent disability of 4% after apportionment. Previously, on August 26, 2016, applicant received a stipulated Award of 28% permanent disability for an August 19, 2013 industrial injury to the neck and right shoulder in case ADJ9994609. In the instant case, it was found that applicant's overall permanent disability was 32%, but the WCJ apportioned to the prior award of permanent disability in ADJ9994609 pursuant to Labor Code section 4664 to arrive at 3% compensable permanent disability.1

Applicant sustained a prior industrial injury to the neck and right shoulder with a stipulated award of 28% permanent disability in case ADJ9994609.

Favours neutral

This prior award is the basis for apportionment analysis under Labor Code section 4664.

From the decision · page 1Applicant seeks reconsideration of a workers' compensation administrative law judge's (WCJ) Findings of Fact and Award of December 19, 2025, wherein it was found that while employed on March 22, 2021 as a fire engineer, applicant sustained industrial injury to the neck and right shoulder causing permanent disability of 4% after apportionment. Previously, on August 26, 2016, applicant received a stipulated Award of 28% permanent disability for an August 19, 2013 industrial injury to the neck and right shoulder in case ADJ9994609. In the instant case, it was found that applicant's overall permanent disability was 32%, but the WCJ apportioned to the prior award of permanent disability in ADJ9994609 pursuant to Labor Code section 4664 to arrive at 3% compensable permanent disability.1

The current injury occurred on March 22, 2021, to the neck and right shoulder, with a permanent disability rating of 4% after apportionment by the WCJ.

Favours neutral

The current injury's rating and apportionment are central to the dispute and reconsideration.

From the decision · page 1Applicant seeks reconsideration of a workers' compensation administrative law judge's (WCJ) Findings of Fact and Award of December 19, 2025, wherein it was found that while employed on March 22, 2021 as a fire engineer, applicant sustained industrial injury to the neck and right shoulder causing permanent disability of 4% after apportionment. Previously, on August 26, 2016, applicant received a stipulated Award of 28% permanent disability for an August 19, 2013 industrial injury to the neck and right shoulder in case ADJ9994609. In the instant case, it was found that applicant's overall permanent disability was 32%, but the WCJ apportioned to the prior award of permanent disability in ADJ9994609 pursuant to Labor Code section 4664 to arrive at 3% compensable permanent disability.1

Dr. Barber's medical analysis found overlap between the prior and current injuries, supporting apportionment under Labor Code section 4664.

Favours Applicant prevailed

Overlap is required for apportionment; Dr. Barber's findings support the legal standard and the Board's decision to remand for further development.

From the decision · page 15At the time of Dr. Barber's deposition, she analyzed factors of overlap. The AME discussed Dr. Moses noting the prior involvement of C5-C6 & C6-C7 as being involved in the prior and present injury; diagnostics being performed previously at the prior, similarly-involved levels of the cervical spine; that if DRE is applied, the applicant rates a DRE-Ill as to both the present and prior injury; the general overlap of subject complaints between the present and prior injury; the similarity of abnormal findings found by Dr. Moses as to the 2013 date of injury compared to the present injury in that both involved a right upper extremity radiculopathy; the similarities between complaints associated with ADL's between the prior and present injury. (Ex. ZZ at 15-25).

Diagnosed cervical strain/sprain with C5-6 and C6-7 disc herniations with C6 radiculopathy; rated cervical permanent impairment at 15% whole person impairment using the Diagnosis-Related Estimates (DRE) method.

Dr. Moses's 2016 report formed the basis of the prior stipulated award and was referenced in the analysis of apportionment and permanent disability.

From the decision · page 3Applicant's stipulated Award in case ADJ9994609 was based on the March 22, 2016 report of orthopedist Max Moses, M.D., who served as agreed medical evaluator in that case. Dr. Moses diagnosed the applicant with "cervical strain/sprain with C5-6 and C6-7 disc herniations with C6 radiculopathy." (March 22, 2016 report at p. 9) Dr. Moses rated applicant's cervical permanent impairment at 15% whole person impairment (WPI) explaining:

Dr. Barber's supplemental report and deposition testimony were persuasive to establish overlap and proper apportionment under Labor Code section 4664.

From the decision · page 14Here, Dr. Victoria Barber, the AME, specifically compared the prior industrial injury to the present industrial injury. She reviewed significant medical records including AME reports and diagnostic studies from a prior claim. The AME found that when she compared the MRIs prior to the 2021 injury with those performed after the injury, there was no significant pathology at the C6-C7 level, which is the primary focus of the present injury. In other words, the present injury is to a different spinal segment. She notes that surgery was only considered in conjunction with the 3/22/21 date of injury, and the applicant did in fact, undergo surgery. Dr. Barber does utilize § 4663 apportionment because the previous injury had injuries at multiple levels, it would have lowered his threshold for injury and because of that she apportioned 20% of the current disability to the prior injury. (Joint Exhibit W, YY, ZZ).

Labor Code section 4664

Labor Code section 4664 apportionment requires proof of overlap between prior and current permanent disabilities to apportion liability.

The Board found that the employer must prove overlap between prior and current disabilities to apply apportionment under LC 4664.

From the decision · page 7Section 4664(a) states that, "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." Section 4664(b) states that, "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." However, in Kopping v. Workers' Comp. Appeals Bd. (2006) 142 Cal.App.4th 1099 [71 Cal.Comp.Cases 1229], the Court of Appeal held that in order to apportion permanent disability pursuant to Labor Code section 4664, a defendant must

Dr. Barber's analysis of overlapping factors between prior and current injuries, including MRI comparisons and ADL complaints.

From the decision · page 15At the time of Dr. Barber's deposition, she analyzed factors of overlap. The AME discussed Dr. Moses noting the prior involvement of C5-C6 & C6-C7 as being involved in the prior and present injury; diagnostics being performed previously at the prior, similarly-involved levels of the cervical spine; that if DRE is applied, the applicant rates a DRE-Ill as to both the present and prior injury; the general overlap of subject complaints between the present and prior injury; the similarity of abnormal findings found by Dr. Moses as to the 2013 date of injury compared to the present injury in that both involved a right upper extremity radiculopathy; the similarities between complaints associated with ADL's between the prior and present injury. (Ex. ZZ at 15-25).