What the panel ordered
The WCAB denied the defendant's Petition for Reconsideration, affirming the award of 100% permanent total disability without apportionment to non-industrial factors.
Defendant filed a timely Petition for Reconsideration of the WCJ Findings and Award of March 17, 2022, challenging the apportionment of permanent disability.
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.
The Board found that apportionment must be to permanent disability causation, not injury or impairment, and that the defendant failed to prove apportionment to non-industrial factors affecting permanent disability. The vocational expert's opinion that the applicant was 100% disabled due to industrial injuries alone was unrebutted, supporting the denial of apportionment.
From the decision · page 3Pursuant to LC 4663, permanent disability is to be apportioned based on causation. Further, apportionment of permanent disability under LC 4663 means causation to permanent disability, not causation to injury. Escobedo v. Marshalls (2005) 70 Cal.Comp. Cases 604 (en banc). Meaning, apportionment to causation must be to permanent disability, not impairment or injury. Apportionment must be based on substantial medical evidence. Employer holds the burden of proving apportionment to non-industrial factors. Applicant can still be found to be 100% disabled when an AME apportions to non-industrial cause based on vocational expert's opinion, if the vocational expert's report considers all relevant factors, including medical apportionment, and finds that applicant is permanently totally disabled as a result of industrial injury alone.