Authorities as the decision cited them, with how this panel applied each one.
Ogilvie v. Workers' Comp. Appeals Bd. (2009) 170 Cal.App.4th 1277
An employee may challenge the scheduled percentage of permanent disability by showing a greater loss of future earning capacity due to industrial injury and non-amenability to rehabilitation.
Applied to support the finding of permanent and total disability based on vocational non-feasibility.
From the decision · page 11However, "an employee may challenge the presumptive scheduled percentage of
permanent disability prescribed to an injury by showing a factual error in the calculation of a factor
in the rating formula or application of the formula, the omission of medical complications
aggravating the employee's disability in preparation of the rating schedule, or by demonstrating
that due to industrial injury the employee is not amenable to rehabilitation and therefore has
suffered a greater loss of future earning capacity than reflected in the scheduled rating." 5 (Ogilvie,
supra, at p. 1277.) The court in Ogilvie thus affirmed the continued relevance of vocational
evidence with respect to the determination of permanent disability. (Applied Materials v. Workers'
Comp. Appeals. Bd. (Chadburn) (2021) 64 Cal.App.5th 1042 [86 Cal.Comp.Cases 331]; see also
County of Sonoma/Health Services Dept. v. Workers' Comp. Appeals Bd. (Helper) (2023) 88
Cal.Comp.Cases 309 [2023 Cal. Wrk. Comp. LEXIS 4] (writ den.).)
Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604
Medical apportionment requires a detailed explanation of how nonindustrial factors contribute to permanent disability to be substantial evidence.
Applied to reject defendant's apportionment arguments due to lack of substantial evidence.
From the decision · page 13Defendant next contends the WCA erred in declining to apply 10 percent nonindustrial
apportionment identified by both Drs. Cabayan and Wolfson to the finding of permanent and total
disability. (Petition, at pp. 11-12.) The WCA's Opinion observes however that neither physicians'
apportionment opinion describes how or why the identified factors of apportionment are currently
contributing to applicant's permanent disability or how the physician identified the appropriate
percentage of apportionment. (Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604 [2005 Cal.
Wrk. Comp. LEXIS 71] (Appeals Bd. en banc) (Escobedo).) The entirety of Dr. Wolfson's
apportionment analysis is a one sentence statement as to the existence of pathology in the spine,
without further explication. (Opinion on Decision, at p. 21:20; Ex. A, Report of Ronald B.
Wolfson, M.D., dated December 5, 2019, at p.
Nunes v. State of California, Dept. of Motor Vehicles (2023) 88 Cal.Comp.Cases 741
Labor Code section 4663 requires a reporting physician to make an apportionment determination and prescribes the standard for apportionment.
Clarified that there is no statutory provision for vocational apportionment; amended finding to remove vocational apportionment reference.
From the decision · page 14Although we concur with the WCA's medical apportionment analysis, we also note that
the WCA has determined that there is "no valid apportionment, medically or vocationally of the
applicant's permanent disability." (Finding of Fact No. 6, italics added.) In Nunes v. State of
California, Dept. of Motor Vehicles (2023) 88 Cal.Comp.Cases 741, 751 [2023 Cal. Wrk. Comp.
LEXIS 46], we held that while section 4663 requires a reporting physician to make an
apportionment determination and prescribes the standard for apportionment, the Labor Code
makes no statutory provision for "vocational apportionment." (Id. at p. 743.) We acknowledge that
WCA's decision herein significantly antedated our en banc opinion in Nunes, and as a result, we
will amend Finding of Fact No. 6 to remove the reference to vocational apportionment.