ADJ14881837 · June 13, 2024

The WCAB found that the defendant failed to meet its burden of proof on apportionment because the QME's opinion on apportionment was not framed in terms of reasonable medical probability and lacked adequate explanation, thus no apportionment to non-industrial factors was supported.

From the decision · page 9DISCUSSION We turn first to defendant's contention that WCJ erroneously found that defendant did not meet its burden of proof as to apportionment. In Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 612 (en banc), 70 Cal.Comp.Cases 1506 (writ den.), the Appeals Board held that (1) Labor Code section 4663 requires the reporting physician to make an apportionment determination; (2) apportionment to other factors allows apportionment to causation, including pathology, prior conditions, and retroactive work restrictions; (3) applicant holds the initial burden to prove industrial injury and also has the added burden of establishing the approximate percentage of permanent disability directly related to the industrial injury; (4) defendant has the burden of establishing the approximate permanent disability caused by other factors; and (5) a medical report addressing apportionment may not be relied upon unless it constitutes substantial evidence.

The WCAB accepted the QME's opinion that adding impairments was the most accurate method to rate disability, resulting in an 86% permanent disability rating with no apportionment to non-industrial factors.

From the decision · page 11In the present case, QME Dr. Fields deemed adding impairments to be the more accurate method to rate the level of disability because applicant's knee impairments precluded the use of the opposite knee to compensate for the impairment to the other. (Report, p. 8.) Given the absence of an uninjured opposite and corresponding knee to compensate for the impairment of the other, it is clear that the impact of applicant's knee impairments on his ADLs has been amplified, satisfying the second Vigil standard for rebutting the CVC.

The WCAB confirmed entitlement to temporary disability benefits for the periods November 20, 2015 through August 15, 2016, and May 9, 2017 through September 5, 2017, supported by medical evidence and EDD lien findings.

From the decision · page 12We agree with the WCJ's evaluations of the evidence as to the periods of applicant's temporary disability. Accordingly, we will substitute a finding that the injury caused temporary

QME Dr. Fields' apportionment opinion lacked reasonable medical probability and adequate explanation, failing to meet the substantial evidence standard required to apportion permanent disability to non-industrial factors.

Favours Applicant prevailed

This led the WCAB to reject apportionment and find 100% industrial causation for the permanent disability.

From the decision · page 10Not only does QME Dr. Fields' discussion of apportionment fail to address how and why non-industrial pathology caused the extent of the disability he indicated, but it is not framed in terms of reasonable medical probability and appears to be based on surmise, conjecture or guess." (See Escobedo, supra; Hegglin v. Workmen's Comp. Appeals Bd. (1971) 4 Cal.3d 162, 169 [36 Cal.Comp.Cases 93, 97].) In the absence of medical reporting constituting substantial medical evidence on the issue of apportionment, there is no basis to conclude that applicant's permanent disability may be apportioned to non-industrial factors.

Medical evidence and EDD lien documentation supported the applicant's entitlement to temporary disability benefits for the periods November 20, 2015 through August 15, 2016, and May 9, 2017 through September 5, 2017.

Favours Applicant prevailed

This supported the WCAB's finding of temporary disability entitlement and allowance of the EDD lien.

From the decision · page 13Hence, because the "EDD paid for the period 11/20215 to 1/14/2016, and... the medical evidence supports a finding of temporary disability during that time," it follows that EDD established its lien claim. (Report, p. 7.) Accordingly, we are unable to discern error in the finding that the EDD lien is allowed in its entirety.

QME Dr. Fields opined that adding impairments was the most accurate method to rate permanent disability due to the absence of an uninjured contralateral knee to compensate, supporting an 86% permanent disability rating.

Favours Applicant prevailed

This opinion was accepted by the WCAB, leading to the substituted finding of an 86% permanent disability rating with no apportionment.

From the decision · page 11In the present case, QME Dr. Fields deemed adding impairments to be the more accurate method to rate the level of disability because applicant's knee impairments precluded the use of the opposite knee to compensate for the impairment to the other. (Report, p. 8.) Given the absence of an uninjured opposite and corresponding knee to compensate for the impairment of the other, it is clear that the impact of applicant's knee impairments on his ADLs has been amplified, satisfying the second Vigil standard for rebutting the CVC.

Dr. Fields opined that the applicant's bilateral knee injuries were primarily due to cumulative trauma from employment (85%) and partly due to morbid obesity (15%), but later increased the obesity apportionment to 25% without adequate explanation, which the WCAB rejected for lack of substantial evidence. He supported using the Kite method to add impairments for a more accurate permanent disability rating, resulting in an 86% rating with no apportionment to non-industrial factors.

The WCAB found Dr. Fields' apportionment opinion lacked reasonable medical probability and adequate explanation, thus rejecting apportionment to non-industrial factors.

From the decision · page 9DISCUSSION We turn first to defendant's contention that WCJ erroneously found that defendant did not meet its burden of proof as to apportionment. In Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 612 (en banc), 70 Cal.Comp.Cases 1506 (writ den.), the Appeals Board held that (1) Labor Code section 4663 requires the reporting physician to make an apportionment determination; (2) apportionment to other factors allows apportionment to causation, including pathology, prior conditions, and retroactive work restrictions; (3) applicant holds the initial burden to prove industrial injury and also has the added burden of establishing the approximate percentage of permanent disability directly related to the industrial injury; (4) defendant has the burden of establishing the approximate permanent disability caused by other factors; and (5) a medical report addressing apportionment may not be relied upon unless it constitutes substantial evidence.

Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 612 (en banc)

A medical opinion must be framed in terms of reasonable medical probability, not be speculative, be based on pertinent facts and adequate examination and history, and set forth reasoning in support of conclusions to constitute substantial evidence on apportionment.

Applied to reject QME Dr. Fields' apportionment opinion for lack of substantial evidence.

From the decision · page 9DISCUSSION We turn first to defendant's contention that WCJ erroneously found that defendant did not meet its burden of proof as to apportionment. In Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 612 (en banc), 70 Cal.Comp.Cases 1506 (writ den.), the Appeals Board held that (1) Labor Code section 4663 requires the reporting physician to make an apportionment determination; (2) apportionment to other factors allows apportionment to causation, including pathology, prior conditions, and retroactive work restrictions; (3) applicant holds the initial burden to prove industrial injury and also has the added burden of establishing the approximate percentage of permanent disability directly related to the industrial injury; (4) defendant has the burden of establishing the approximate permanent disability caused by other factors; and (5) a medical report addressing apportionment may not be relied upon unless it constitutes substantial evidence.

Athens Administrators v. Workers' Comp. Appeals Bd. (Kite) (2013) 78 Cal.Comp.Cases 213

The scheduled rating under the California Schedule for Rating Permanent Disabilities (CVC) is rebuttable and impairments may be combined using the Kite method when supported by substantial medical evidence.

Applied to accept QME Dr. Fields' opinion that adding impairments was the more accurate method to rate permanent disability.

Applicant's medical records and testimony supported cumulative trauma injury to bilateral knees over years of plumbing work, with no evidence supporting apportionment to non-industrial factors.

From the decision · page 5Dr. Fields as QME has reviewed all the evidence and examined the Applicant. The records definitely supported his opinion that indeed he had sustained cumulative trauma over the years as a plumber (30 years) rather than a singular specific injury.

The EDD paid for the applicant's disability period from November 2015 to January 2016, supporting the temporary disability finding and lien allowance.

From the decision · page 13Hence, because the "EDD paid for the period 11/20215 to 1/14/2016, and... the medical evidence supports a finding of temporary disability during that time," it follows that EDD established its lien claim. (Report, p. 7.) Accordingly, we are unable to discern error in the finding that the EDD lien is allowed in its entirety.