What the panel ordered
Petition for reconsideration denied.
Defendant sought reconsideration of the Findings and Award issued by the WCJ on April 18, 2025, which found 64% permanent disability and no apportionment. The WCJ filed a Report and Recommendation to deny the petition as untimely or on the merits. The Appeals Board considered the petition and denied reconsideration on July 28, 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.
Defendant failed to prove prior award of disability overlapping with current award and failed to provide medical evidence of overlap, thus failing burden of proof on apportionment.
From the decision · page 5III. Defendant carries the burden of proof on apportionment. (§ 5705.) Apportionment of permanent disability must address causation of disability and must constitute substantial evidence. (Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 620-621 (Appeals Board en banc).) To constitute substantial evidence "... a medical opinion must be framed in terms of reasonable medical probability, it must not be speculative, it must be based on pertinent facts and on an adequate examination and history, and it must set forth reasoning in support of its conclusions." (Id. at 621.) Section 4664 allows apportionment to prior awards of disability. (§ 4664.) To prove apportionment under section 4664, defendant must first prove that a prior award of disability exists. (Pasquotto v. Hayward Lumber (2006) 71 Cal. Comp. Cases 223 [Appeals Board en banc opinion]; see also, Sanchez, supra; see also, Strong v. City and County of San Francisco (2005)
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Defendant failed to prove existence of prior award of disability overlapping with current award.
Favours Applicant prevailed
Without proof of overlap, apportionment under Labor Code section 4664 cannot be established, leading to denial of defendant's petition.
From the decision · page 6Here, based on the record before us defendant has not requested any of the doctors to opine on whether applicant's prior awards of disability overlap. Without any evidence in the record establishing overlap, defendant failed its burden of proof on apportionment. To the extent that defendant argues that error exists because the doctors should have been provided additional records in order to further address the issue of apportionment, defendant invited this error by failing to conduct such discovery.
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.
Diagnosed multiple injuries including discogenic cervical spine issues causing headaches, rotator cuff and labral tears, and knee chondromalacia; found no basis for apportionment of impairments.
No basis for apportionment found in medical report.
From the decision · page 3(Id. at p. 7.) Dr. Berenji did not find any basis to apportion applicant's impairments. (Id. at p. 9.) Applicant was also seen by a qualified medical evaluator (QME) who authored two reports
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, 620-621 (Appeals Board en banc)
Defendant carries the burden of proof on apportionment and must provide substantial medical evidence framed in reasonable medical probability, based on pertinent facts and adequate examination.
Applied to require medical evidence for apportionment and to reject defendant's argument due to lack of such evidence.
From the decision · page 5III. Defendant carries the burden of proof on apportionment. (§ 5705.) Apportionment of permanent disability must address causation of disability and must constitute substantial evidence. (Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 620-621 (Appeals Board en banc).) To constitute substantial evidence "... a medical opinion must be framed in terms of reasonable medical probability, it must not be speculative, it must be based on pertinent facts and on an adequate examination and history, and it must set forth reasoning in support of its conclusions." (Id. at 621.) Section 4664 allows apportionment to prior awards of disability. (§ 4664.) To prove apportionment under section 4664, defendant must first prove that a prior award of disability exists. (Pasquotto v. Hayward Lumber (2006) 71 Cal. Comp. Cases 223 [Appeals Board en banc opinion]; see also, Sanchez, supra; see also, Strong v. City and County of San Francisco (2005)
What proof carried it
The evidence the panel weighed, by kind.
Defendant did not provide medical evidence showing overlap of prior disability awards with current disability.
From the decision · page 6Here, based on the record before us defendant has not requested any of the doctors to opine on whether applicant's prior awards of disability overlap. Without any evidence in the record establishing overlap, defendant failed its burden of proof on apportionment. To the extent that defendant argues that error exists because the doctors should have been provided additional records in order to further address the issue of apportionment, defendant invited this error by failing to conduct such discovery.
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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.
- The injured worker is not named here, and the case caption is not printed. Physicians appear as the decision names them, because a medical opinion is an act in a public proceeding.
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