Authorities as the decision cited them, with how this panel applied each one.
Labor Code section 4660.1(c)(1)
Labor Code section 4660.1(c)(1) prohibits increasing impairment ratings for sleep dysfunction arising out of a compensable physical injury except as provided.
Applied to exclude sleep disorder impairment from the permanent disability rating as a compensable consequence injury.
From the decision · page 82. Sleep add-on.
Next applicant argues it was error to exclude a permanent disability add-on for sleep
impairment. Section 4660.1(c) states, in pertinent part:
Carter v. County of Los Angeles (1986) 51 Cal. Comp. Cases 255
An injury may be a compensable consequence if it is a direct and natural consequence of a prior injury, even if not the exclusive cause.
Applied to determine that sleep disorder was a compensable consequence of the knee injury.
From the decision · page 8(§ 4660.1(c)(1).)
Causation of an injury may be either direct or as a compensable
consequence of a prior injury. More precisely, an injury may be
directly caused by the employment. Alternatively, a subsequent
injury is a compensable consequence of the first injury where it "is
not a new and independent injury but rather the direct and natural
consequence of the" first injury. (Carter v. County of Los Angeles
(1986) 51 Cal. Comp. Cases 255, 258 (Appeals Board en banc).)
The "first injury need not be the exclusive cause of the second but
only a contributing factor to it... So long as the original injury
operates even in part as a contributing factor it establishes liability."
(State Compensation Ins. Fund v. Industrial Acc. Com. (Wallin)
(1959) 176 Cal. App. 2d 10, 17 [24 Cal. Comp. Cases 302].) In
other words, if the first injury is a contributing cause of the second
injury, the second injury is a compensable consequence of the first
injury. Whereas the first injury is directly caused by the
employment, a compensable consequence injury is indirectly
caused by the employment via the first injury.
Vocational evidence may not substitute impermissible vocational apportionment for medical apportionment.
Applied to reject vocational expert's medical opinions and improper vocational apportionment.
From the decision · page 61. Rebuttal of the PDRS under Ogilvie
In the en banc decision in Nunes v. State of California, Dept. of Motor Vehicles (June 22,
2023) 2023 Cal. Wrk. Comp. LEXIS 30 [88 Cal.Comp.Cases 741] ("Nunes I"), the Appeals Board
held that Labor Code section 4663 requires a reporting physician to make an apportionment
determination and prescribes the standard for apportionment, and that the Labor Code makes no
statutory provision for "vocational apportionment." The Board further held that vocational
evidence may be used to address issues relevant to the determination of permanent disability, and
that vocational evidence must address apportionment, but such evidence may not substitute
impermissible "vocational apportionment" in place of otherwise valid medical apportionment.
Ogilvie v. Workers' Comp. Appeals Bd.
Applicant must prove industrial cause of total disability and inability to compete on open labor market to rebut ratings schedule and prove permanent total disability.
Applied to reject SSDI findings as not establishing permanent total disability in workers' compensation.
From the decision · page 7Where applicant is seeking to rebut the ratings schedule and have a finding issue that she
is permanently totally disabled, applicant must prove two things: 1) she is not amenable to
rehabilitation due to the industrial injury, and thus 2) she is not capable of competing on the open
labor market. (Ogilvie v. Workers' Comp. Appeals Bd., 197 Cal. App. 4th 1262, 1277, 129 Cal.
Rptr. 3d 704.) In workers' compensation, applicant must show that the cause of her total disability
is industrial. SSDI does not analyze the cause of the disability in determining whether
applicant qualifies. (See, 20 CFR 404.1594.) Accordingly, SSDI has no res judicata effect upon
the question of total disability in workers' compensation.
Labor Code section 5313
Labor Code section 5313 requires WCJ to make findings on all facts involved and state reasons for determinations.
Applied to require further findings on out-of-pocket medical reimbursement and wage loss on remand.
From the decision · page 9The WCJ shall "... make and file findings upon all facts involved in the controversy[.]"
(§ 5313; see also, Hamilton v. Lockheed Corporation (Hamilton) (2001) 66 Cal.Comp.Cases 473,
476 (Appeals Board en banc).)
Hamilton v. Lockheed Corporation (2001) 66 Cal.Comp.Cases 473
A decision must be based on admitted evidence and supported by substantial evidence.
Applied to require clarity and substantial evidence for reimbursement awards.
From the decision · page 9Labor Code section 5313 requires a WCJ to state the "reasons or grounds upon which the
determination was made." The WCJ's opinion on decision "enables the parties, and the Board if
reconsideration is sought, to ascertain the basis for the decision, and makes the right of seeking
reconsideration more meaningful." (Hamilton v. Lockheed Corporation (Hamilton) (2001) 66
Cal.Comp.Cases 473, 476 (Appeals Board en banc), citing Evans v. Workmen's Comp. Appeals
Bd. (1968) 68 Cal.2d 753, 755 [33 Cal.Comp.Cases 350, 351].) A decision "must be based on
admitted evidence in the record" (Hamilton, supra, at p. 478), and must be supported by substantial
evidence. (Lab. Code, § 5903, 5952(d); Lamb v. Workmen's Comp. Appeals Bd. (1974) 11 Cal.3d
274 [39 Cal.Comp.Cases 310]; Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312 [35
Cal.Comp.Cases 500]; LeVesque v. Workmen's Comp. Appeals Bd. (1970) 1 Cal.3d 627 [35
Cal.Comp.Cases 16].) As required by section 5313 and explained in Hamilton, "the WCJ is
charged with the responsibility of referring to the evidence in the opinion on decision, and of
clearly designating the evidence that forms the basis of the decision." (Hamilton, supra, at p. 475.)