ADJ7593685 · December 13, 2023

The WCJ's award of 100% permanent disability was rescinded because the vocational experts did not consider the apportionment opinions of Dr. Galarza and Dr. Fisher, requiring further proceedings to properly determine permanent disability and apportionment.

From the decision · page 8In this case, the record includes a formal rating by the Disability Evaluation Unit ("DEU") of 47% permanent disability, but the WCJ's determination that the vocational evidence successfully rebutted the scheduled rating failed to take into account Dr. Fisher's apportionment to non-industrial factors relevant to the disability caused by applicant's internal injuries.6 We further note that contrary to Nunes I and II, neither vocational expert considered Dr. Fisher's apportionment of the disability caused by applicant's internal injuries, as the vocational experts issued their reports before Dr. Fisher provided his final report, which rated applicant's internal disability and which included various apportionment determinations. Likewise, neither vocational expert reviewed Dr. Galarza's reporting on applicant's psychiatric disability, making their vocational opinions insubstantial even without consideration of the doctor's failure to comply with the requirements of Escobedo on apportionment.

Vocational experts did not consider Dr. Galarza's psychiatric apportionment reports or Dr. Fisher's final internal medicine apportionment reports.

Favours Applicant prevailed

This omission rendered the vocational evidence insubstantial and required rescinding the permanent disability award and remanding for further proceedings.

From the decision · page 8In this case, the record includes a formal rating by the Disability Evaluation Unit ("DEU") of 47% permanent disability, but the WCJ's determination that the vocational evidence successfully rebutted the scheduled rating failed to take into account Dr. Fisher's apportionment to non-industrial factors relevant to the disability caused by applicant's internal injuries.6 We further note that contrary to Nunes I and II, neither vocational expert considered Dr. Fisher's apportionment of the disability caused by applicant's internal injuries, as the vocational experts issued their reports before Dr. Fisher provided his final report, which rated applicant's internal disability and which included various apportionment determinations. Likewise, neither vocational expert reviewed Dr. Galarza's reporting on applicant's psychiatric disability, making their vocational opinions insubstantial even without consideration of the doctor's failure to comply with the requirements of Escobedo on apportionment.

Dr. Galarza's apportionment opinion lacked detailed explanation and was found insubstantial under Escobedo.

Favours Defendant prevailed

The insufficiency of Dr. Galarza's opinion affected the consideration of psychiatric apportionment and required further development of the record.

From the decision · page 5Thus, Dr. Galarza reported that applicant's divorce is due to the negative effects his injury is having on their relationship, as applicant's wife is his main caregiver. But the doctor did not address whether applicant's industrial injury and disability are the primary factors in this situation. Further, Dr. Galarza's apportionment to the death of applicant's sister does not discuss the "how and why" it is causing 10% of applicant's permanent disability, other than the fact that "he does miss her." Dr. Galarza's apportionment opinion is insubstantial under Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 621 (Appeals Board en banc). Therein the Board stated that a medical opinion must disclose familiarity with the concepts of apportionment, describe in detail the exact nature of the apportionable disability, and set forth the basis for the opinion, so the Board can determine whether the physician is properly apportioning under correct legal principles.

Apportioned internal medicine disabilities with specific percentages of industrial and non-industrial causes for sleep disorder, GERD, hypertension, and diabetes.

Dr. Fisher provided apportionment determinations for internal medicine disabilities relevant to permanent disability.

From the decision · page 3Sleep disorder 15% WPI, 50% industrial and 50% non-industrial (Robert Fisher, M.D. report of 8/27/2018, pg. 1 [Joint Exh. 15])

Provided psychiatric impairment rating and apportionment of 30% non-industrial causes for Major Depressive Disorder, recurrent with psychotic features.

Dr. Jacovich's apportionment opinion was considered by the WCJ and vocational experts.

From the decision · page 4"[This] examiner opines that there was 70% apportionment of industrial causes and 30% of non-industrial causes (15% to pre-existing depression; and 15% to non-industrial factor of claimant's injury to ankle) to the development of the psychiatric injury; Major Depressive Disorder, recurrent with psychotic features." (Ex. C, 6/23/14 Dr. Jacovich, p. 11.)

Provided psychiatric diagnosis and apportionment but opinion was found insubstantial under Escobedo due to lack of detailed basis for apportionment.

Dr. Galarza's apportionment opinion was not adequately detailed and was found insubstantial.

From the decision · page 5Thus, Dr. Galarza reported that applicant's divorce is due to the negative effects his injury is having on their relationship, as applicant's wife is his main caregiver. But the doctor did not address whether applicant's industrial injury and disability are the primary factors in this situation. Further, Dr. Galarza's apportionment to the death of applicant's sister does not discuss the "how and why" it is causing 10% of applicant's permanent disability, other than the fact that "he does miss her." Dr. Galarza's apportionment opinion is insubstantial under Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 621 (Appeals Board en banc). Therein the Board stated that a medical opinion must disclose familiarity with the concepts of apportionment, describe in detail the exact nature of the apportionable disability, and set forth the basis for the opinion, so the Board can determine whether the physician is properly apportioning under correct legal principles.

Labor Code section 4663

Labor Code section 4663 requires a reporting physician to make an apportionment determination and prescribes the standard for apportionment.

The WCJ must determine whether the permanent disability includes nonindustrial or prior industrial factors or arises solely from the current industrial injury.

From the decision · page 7DISCUSSION In its 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 app

Nunes v. State of California, Dept. of Motor Vehicles (2023) 88 Cal.Comp.Cases 741

Vocational evidence may be used to address issues relevant to permanent disability but may not substitute impermissible vocational apportionment.

Vocational evidence must address apportionment but cannot replace valid medical apportionment.

From the decision · page 7DISCUSSION In its 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 app

Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604

A medical opinion must disclose familiarity with apportionment concepts, describe the apportionable disability in detail, and set forth the basis for the opinion to be substantial under Escobedo v. Marshalls (2005).

Dr. Galarza's opinion was found insubstantial for lack of detailed basis for apportionment.

From the decision · page 5Thus, Dr. Galarza reported that applicant's divorce is due to the negative effects his injury is having on their relationship, as applicant's wife is his main caregiver. But the doctor did not address whether applicant's industrial injury and disability are the primary factors in this situation. Further, Dr. Galarza's apportionment to the death of applicant's sister does not discuss the "how and why" it is causing 10% of applicant's permanent disability, other than the fact that "he does miss her." Dr. Galarza's apportionment opinion is insubstantial under Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 621 (Appeals Board en banc). Therein the Board stated that a medical opinion must disclose familiarity with the concepts of apportionment, describe in detail the exact nature of the apportionable disability, and set forth the basis for the opinion, so the Board can determine whether the physician is properly apportioning under correct legal principles.

Defendant's surveillance films depicting applicant engaging in conduct inconsistent with trial testimony

Vocational experts did not review Dr. Galarza's or Dr. Fisher's final apportionment reports

From the decision · page 8In this case, the record includes a formal rating by the Disability Evaluation Unit ("DEU") of 47% permanent disability, but the WCJ's determination that the vocational evidence successfully rebutted the scheduled rating failed to take into account Dr. Fisher's apportionment to non-industrial factors relevant to the disability caused by applicant's internal injuries.6 We further note that contrary to Nunes I and II, neither vocational expert considered Dr. Fisher's apportionment of the disability caused by applicant's internal injuries, as the vocational experts issued their reports before Dr. Fisher provided his final report, which rated applicant's internal disability and which included various apportionment determinations. Likewise, neither vocational expert reviewed Dr. Galarza's reporting on applicant's psychiatric disability, making their vocational opinions insubstantial even without consideration of the doctor's failure to comply with the requirements of Escobedo on apportionment.