What the panel ordered
Petition for Reconsideration denied
Petition for Reconsideration filed by Defendant and denied by the WCAB panel
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 defendant failed to provide substantial medical evidence to support apportionment; the AME's opinion was found speculative and not substantial evidence.
From the decision · page 1Labor Code section 4663(a) provides that "[a]pportionment of permanent disability shall be based on causation." (Lab. Code, § 4663(a).) Section 4664(a) states that "[t]he employer shall only be liable for the percentage of permanent disability directly caused by the injury arising out of and occurring in the course of employment." (Lab. Code, § 4664(a).) The defendant has the burden of proof on the issue of apportionment. (Kopping v. Workers' Comp. Appeals Bd. (2006) 142 Cal.App.4th 1099, 1114 [71 Cal.Comp.Cases 1229].)
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Defendant did not provide substantial medical evidence to support apportionment of permanent disability.
Favours Applicant prevailed
This failure meant the apportionment claim was rejected and the applicant's disability was not reduced.
From the decision · page 1Labor Code section 4663(a) provides that "[a]pportionment of permanent disability shall be based on causation." (Lab. Code, § 4663(a).) Section 4664(a) states that "[t]he employer shall only be liable for the percentage of permanent disability directly caused by the injury arising out of and occurring in the course of employment." (Lab. Code, § 4664(a).) The defendant has the burden of proof on the issue of apportionment. (Kopping v. Workers' Comp. Appeals Bd. (2006) 142 Cal.App.4th 1099, 1114 [71 Cal.Comp.Cases 1229].)
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 neurogenic bladder and erectile dysfunction related in part to injury and surgery; opined approximately 50% of erectile dysfunction complaints were nonindustrial; lowered impairment rating after reviewing surveillance video; opinion on apportionment was speculative and not substantial evidence.
The opinion was found speculative and not substantial medical evidence to support apportionment.
From the decision · page 1Labor Code section 4663(a) provides that "[a]pportionment of permanent disability shall be based on causation." (Lab. Code, § 4663(a).) Section 4664(a) states that "[t]he employer shall only be liable for the percentage of permanent disability directly caused by the injury arising out of and occurring in the course of employment." (Lab. Code, § 4664(a).) The defendant has the burden of proof on the issue of apportionment. (Kopping v. Workers' Comp. Appeals Bd. (2006) 142 Cal.App.4th 1099, 1114 [71 Cal.Comp.Cases 1229].)
Diagnosed major depressive disorder predominantly caused by the 2008 lumbar spine injury with unapportioned disability; reviewed surveillance video and did not change assessment.
His opinion supported the finding of unapportioned disability related to the industrial injury.
From the decision · page 5As to the psychiatric injury, Dr. St. Martin determined that Applicant suffered from a major depressive disorder predominantly caused by the 2008 lumbar spine injury [Ex JJ, P5] with resulting unapportioned disability based on a GAF score of 57 [Ex JJ, P6]. After reviewing surveillance video, the doctor's assessment did not change [Ex II, P3].
Assessed 20% whole person impairment using DRE method category IV for back injury; found no basis for apportionment.
His opinion was substantial evidence for the impairment rating and no apportionment.
From the decision · page 20The primary disability is due to Applicant's back injury. In that regard, Dr. Sherman stated his opinion that the DRE method, category IV, at 20% whole person impairment, was the most accurate assessment of impairment [Ex BB, P6; See also Ex CC, P13]. He said there was no basis for apportionment [Ex BB, P6]. Given Applicant's 2-level surgery, and Dr. Sherman's explanation, the Court finds this to be an appropriate assessment. The Court finds Dr. Sherman's opinion to be substantial evidence upon which it can rely for a rating.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Labor Code sections 4663(a) and 4664(a)
Apportionment of permanent disability must be based on causation; employer bears burden of proof on apportionment.
Defendant failed to meet burden of proof for apportionment as medical opinion was speculative and not substantial evidence.
From the decision · page 1Labor Code section 4663(a) provides that "[a]pportionment of permanent disability shall be based on causation." (Lab. Code, § 4663(a).) Section 4664(a) states that "[t]he employer shall only be liable for the percentage of permanent disability directly caused by the injury arising out of and occurring in the course of employment." (Lab. Code, § 4664(a).) The defendant has the burden of proof on the issue of apportionment. (Kopping v. Workers' Comp. Appeals Bd. (2006) 142 Cal.App.4th 1099, 1114 [71 Cal.Comp.Cases 1229].)
What proof carried it
The evidence the panel weighed, by kind.
Surveillance video showed applicant performing physical activities inconsistent with his complaints, undermining credibility.
From the decision · page 10In November 2015 he saw Dr. Sherman who said the applicant reported that he had "constant severe pain in his low back" with painful limited spine motion with pain increased by any standing, lifting, pushing or pulling activities [Ex DD, P3]. Yet, in December 2015 surveillance video shows the applicant picking up a collapsed stroller or carriage and smoothly placing it up and into the bed of a pick-up truck, then leaning to reposition it. Later he is seen easily entering the truck cab on the passenger side and quickly crawling across the front seat to unlock the driver's door [Ex E, 12/19/15].
Applicant's inconsistent statements and misrepresentations noted by physicians after reviewing surveillance video.
From the decision · page 18A number of physicians who reviewed the extensive surveillance video concluded that Applicant was repeatedly less than straightforward both in his statements about his physical ability and in his movements during their examination. Some thought he was lying or malingering. Even the veracity of the facts about occurrence of the injury itself is suspect8 after comparing Applicant's discrepant statements made to Kaiser, to Dr. Spokoyny, and in sworn testimony to the Court.
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.
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