What the panel ordered
The Workers' Compensation Appeals Board panel affirmed the WCJ's December 28, 2020 Findings, Award and Order and denied the defendant's petition for reconsideration.
Defendant Hartnell Packing Inc. and its insurers petitioned for reconsideration of the WCJ's December 28, 2020 Findings, Award and Order granting applicant a single joint award of 100% permanent total disability for multiple industrial injuries. The WCJ recommended denial of the petition.
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 meet the burden of proof to apportion disability among multiple industrial injuries, and substantial evidence supports applicant's 100% permanent total disability.
From the decision · page 1Defendant Hartnell Packing Inc., by and through its insurer, Wausau Underwriters Insurance Company/Liberty Mutual, seeks reconsideration of the December 28, 2020 Findings, Award and Order, wherein the workers' compensation administrative law judge (WCJ) found that applicant sustained five industrial injuries, specific and cumulative, to his bilateral shoulders, back, psyche, heart/cardiovascular, sleep and internal while employed as a dock supervisor on July 5, 1996, December 1, 2001, and cumulatively over the periods ending December 31, 2002, October 14, 2003, and June 9, 2005, resulting in permanent total disability. The WCJ determined that though applicant sustained five separate injuries, he was entitled to a single joint award of permanent total disability in the absence of substantial medical evidence to apportion disability between the dates of injury.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Defendant failed to provide substantial medical evidence to apportion disability among multiple industrial injuries.
Favours Applicant prevailed
Without clear apportionment, the WCJ awarded a single joint 100% permanent total disability.
From the decision · page 61. Although applicant sustained multiple injuries, applicant is entitled to an unapportioned award of 100% permanent total disability because defendant failed to meet into burden of proof on apportionment between the various injuries.
Vocational expert Scott Simon concluded applicant has a 100% loss of labor market access due to combined industrial injuries.
Favours Applicant prevailed
Supported the WCJ's finding of 100% permanent total disability.
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.
Applicant sustained a 12% whole person impairment for psychiatric injury with 95% apportioned to industrial injury; however, apportionment among multiple dates of injury was unclear and insufficient for apportionment.
Dr. Segal's opinion was found insufficient to meet the burden of proof for apportionment due to lack of adequate information and unclear apportionment among multiple injury dates.
From the decision · page 7Dr. Lin and Dr. McCreesh were able to parcel out causation of disability for the musculoskeletal injuries among the two specific dates of injury and one period of cumulative trauma ending 6/9/05. Dr. Segal, however, was not. In his report dated 7/13/18, Dr. Segal noted that although he originally apportioned 10% of psychiatric impairment to non-industrial sleep apnea, he later changed that apportionment to just 5% since the sleep apnea seemed to be playing a lesser role than it was in 2008. The remaining 95% of psychiatric disability he found attributable to the applicant's work injuries. (Exh. J-1) In his report dated 6/9/14, Dr. Segal indicated that "truth be, from a psychiatric perspective, the injuries are too inextricably intertwined to separate out and apportion between them." (Exh. J-4) Dr. Segal explained that this determination was based on the fact that he did not have an opportunity to examine applicant until December 2008, "many years" after his industrial injuries and more than three years after his last day of employment.
Applicant sustained a 25% whole person impairment for low back injury with apportionment among multiple injury dates; concluded applicant is unable to return to work and supports 100% permanent total disability.
Dr. Lin's detailed apportionment and opinion on disability supported the WCJ's conclusion of 100% permanent total disability.
From the decision · page 9In his report dated 7/10/13, Dr. Lin concludes that "I do not believe that applicant would be able to return to work in any capacity given his current condition." (Report, supra, p. 50; Exh. A-24.) Dr. Lin's opinion is supported by the fact that applicant has undergone four right shoulder surgeries and an MRI of the left shoulder reveals a rotator cuff tear of the supraspinatus and instraspinatus muscles. Applicant has positive impingement signs in the bilateral shoulders. (Report, supra, p. 46; Exh. A-24.) Referable to the lumbar spine, multiple MRI's confirm that applicant has spinal stenosis and decreased active range of motion of the lumbar spine. (Report, supra, p. 46; Exh. A-24.).
Applicant has an 8% whole person impairment for hypertension with 50% industrial causation; apportionment among multiple injury dates deferred to orthopedist's dictates, which was insufficient for apportionment.
Dr. Levy's apportionment opinion was insufficient as it deferred to orthopedist without clear apportionment among injury dates.
From the decision · page 8The apportionment determination provided by Dr. Levy is flawed in a similar fashion to that of Dr. Segal. In his report dated 10/7/17, Dr. Levy finds industrial causation for the applicant's hypertension and provides 8% whole person impairment for same. He indicates that 50% of impairment for hypertension is caused by "endogenous nonindustrial factors," and 50% of his impairment is caused by "orthopedic work-related injuries." Dr. Levy further dictates that as for parceling out disability among multiple dates of injury, he "would follow the dictates of the orthopedist with respect to apportionment between the various work-related and non-work related orthopedic impairments." (Exh. A-11) This opinion is insufficient to allow the Court to actually apportion industrial impairment for hypertension between multiple dates of injury for the same reasons articulated previously with respect to Dr. Segal's apportionment opinion.
Applicant is not amenable to rehabilitation and has sustained 100% loss of labor market access due to combined industrial injuries.
Vocational expert's opinion supported the conclusion of 100% permanent total disability due to inability to return to work.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
California Labor Code
Labor Code Section 5412 - Multiple dates of injury
Defendant contested multiple dates of injury and apportionment issues under this statute.
From the decision · page 4Defendant, Liberty Mutual Insurance Company, has filed a timely, verified petition for reconsideration which contends that (1) applicant sustained multiple dates of injury pursuant to Labor Code Section 5412; (2) applicant sustained multiple cumulative trauma injuries pursuant to Labor Code Section 5500.5; (3) pursuant to Labor Code Section 4664 the several injuries must be apportioned and applicant is not 100% disabled to one date of injury; and (4) if there is one overall rating applicant's permanent disability is 84%.
California Labor Code
Labor Code Section 5500.5 - Cumulative trauma injuries
Defendant contested cumulative trauma injury claims under this statute.
From the decision · page 4Defendant, Liberty Mutual Insurance Company, has filed a timely, verified petition for reconsideration which contends that (1) applicant sustained multiple dates of injury pursuant to Labor Code Section 5412; (2) applicant sustained multiple cumulative trauma injuries pursuant to Labor Code Section 5500.5; (3) pursuant to Labor Code Section 4664 the several injuries must be apportioned and applicant is not 100% disabled to one date of injury; and (4) if there is one overall rating applicant's permanent disability is 84%.
California Labor Code
Labor Code Section 4664 - Apportionment of disability
Defendant argued that several injuries must be apportioned under this statute.
From the decision · page 4Defendant, Liberty Mutual Insurance Company, has filed a timely, verified petition for reconsideration which contends that (1) applicant sustained multiple dates of injury pursuant to Labor Code Section 5412; (2) applicant sustained multiple cumulative trauma injuries pursuant to Labor Code Section 5500.5; (3) pursuant to Labor Code Section 4664 the several injuries must be apportioned and applicant is not 100% disabled to one date of injury; and (4) if there is one overall rating applicant's permanent disability is 84%.
California Supreme Court
Zemke v Workmen's Comp. App. Bd. (1968) 68 Cal. 2d 798
Expert medical advice must be based on relevant facts and not mere legal conclusions for apportionment to constitute substantial evidence.
From the decision · page 8The "ratio" referenced by Dr. Segal has not actually been supplied by any of the evaluators. Certainly both Dr. Lin and Dr. McCreesh provided apportionment opinions for the lumbar spine and bilateral shoulders, but they do not give one "ratio" determining how disability for those body parts is parceled out among the various dates of injury, therefore, the Court would have to create one. Such a determination of apportionment would not be based on the evaluator's opinions as to causation of disability. A determination of apportionment not based on medical evidence would be invalid: "In resolving the apportionment issue, the referee and the board must rely upon expert medical advice; in order to constitute substantial evidence, the experts opinion must rest upon relevant facts and must consist of something more than a legal conclusion." (Zemke v Workmen's Comp. App. Bd., supra, 68 Cal. 2d at p. 798.)" Avila v. Workers' Comp. Appeals Bd. (1970) 14 Cal. App. 3d 33, 91 Cal. Rptr. 853, 35 Cal. Comp. Cases 637, 639.
California Court of Appeal
Avila v. Workers' Comp. Appeals Bd. (1970) 14 Cal. App. 3d 33
A determination of apportionment not based on medical evidence is invalid.
From the decision · page 8The "ratio" referenced by Dr. Segal has not actually been supplied by any of the evaluators. Certainly both Dr. Lin and Dr. McCreesh provided apportionment opinions for the lumbar spine and bilateral shoulders, but they do not give one "ratio" determining how disability for those body parts is parceled out among the various dates of injury, therefore, the Court would have to create one. Such a determination of apportionment would not be based on the evaluator's opinions as to causation of disability. A determination of apportionment not based on medical evidence would be invalid: "In resolving the apportionment issue, the referee and the board must rely upon expert medical advice; in order to constitute substantial evidence, the experts opinion must rest upon relevant facts and must consist of something more than a legal conclusion." (Zemke v Workmen's Comp. App. Bd., supra, 68 Cal. 2d at p. 798.)" Avila v. Workers' Comp. Appeals Bd. (1970) 14 Cal. App. 3d 33, 91 Cal. Rptr. 853, 35 Cal. Comp. Cases 637, 639.
What proof carried it
The evidence the panel weighed, by kind.
Applicant's extensive medical records and reports from Dr. Lucy Lin, Dr. Richard Levy, and Dr. Perry Segal
Vocational expert Scott Simon's detailed reports on applicant's physical and psychological limitations and inability to return to work
The same issues, filtered across the whole corpus — or paste your own facts and let the search rank by factor match.
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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