ADJ8240882 · April 21, 2025

Applicant is permanently and totally disabled based on inability to participate in vocational retraining; defendant failed to prove valid apportionment to nonindustrial factors; WCJ's additive method for disability percentages was unnecessary to the outcome.

From the decision · page 1Defendant State of California, California Institute for Women (defendant) seeks reconsideration of the January 21, 2025 Findings and Award (F&A), wherein the workers' compensation administrative law judge (WCJ) found in Case No. ADJ8240882 that applicant, while employed as a correctional officer from February 24, 1996 to September 26, 2012, sustained industrial injury to his heart, psyche, right wrist, respiratory system, lumbar spine, right shoulder, left shoulder, cervical spine, right knee, and left knee. The WCJ further found in ADJ8240881 that applicant sustained injury on October 4, 2011 to his right wrist, right shoulder, and left upper extremity, and in Case No. ADJ8615401, that applicant sustained injury on September 25, 2012 to his right knee, left lower extremity, and lumbar spine. The WCJ determined that the respective percentages of permanent disability arising out of the three injuries could not be parceled out. The WCJ further determined that either by adding applicant's permanent disability corresponding to the various body parts, or because applicant is not feasible for vocational retraining, applicant's industrial disability was both permanent and total. The WCJ further determined that the apportionment opinions of the evaluating medical-legal physicians did not constitute substantial evidence and thus issued an unapportioned award.

Applicant is not feasible for vocational retraining and cannot work in the open labor market.

Favours Applicant prevailed

This finding supports the conclusion of permanent and total disability independent of additive disability percentages.

Defendant failed to provide substantial evidence of valid apportionment to nonindustrial factors.

Favours Applicant prevailed

Lack of valid apportionment evidence supports an unapportioned award of permanent disability.

From the decision · page 13Thus, and following our independent review of the medical evidence occasioned by defendant's Petition, we agree with the WCJ's conclusion that the apportionment identified in the medical-legal reporting does not constitute substantial evidence. Insofar as defendant bears the burden of establishing such apportionment, that burden has not been met, and applicant is entitled

Cardiac disability is wholly industrial and not subject to apportionment under Labor Code section 4663(e).

From the decision · page 11Insofar as the AME is apportioning 10 percent of applicant's psychiatric impairment to a combination of pulmonary and cardiac issues, the opinion does not explain why each of these issues is resulting in psychiatric impairment. Further, we have determined that the apportionment described by Dr. Lipper is not substantial evidence, while the cardiac disability described by AME Dr. Hyman is subject to the anti-attribution provisions of section 4663(e). Thus, applicant's cardiac and pulmonary impairments are wholly industrial, and not a valid source of nonindustrial apportionment.

Psychiatric apportionment to nonindustrial factors not established; apportionment opinions unclear and inconsistent.

From the decision · page 11In sum, it is unclear whether the psychiatric AME is endorsing apportionment to nonindustrial factors in the first instance, and whether the opinions expressed in the AME's earlier reporting can be reconciled with the opinions expressed as recently as 2024. Even assuming, arguendo, that the apportionment identified by Dr. Bassett is sufficiently consistent, the AME misidentifies industrial cardiac and respiratory impairment as partially nonindustrial and does not describe how and why each individual factor of apportionment is presently manifesting in psychiatric disability. We therefore concur with the WCJ's conclusion that defendant has not met its burden of establishing psychiatric apportionment.

Apportionment to nonindustrial factors for spine and knee disabilities not supported by substantial evidence; aggregation of factors without adequate explanation.

From the decision · page 13We also note that insofar as Dr. Watkins' identifies specific percentages of apportionment applicable to applicant's cervical spine, lumbar spine and right knee, in each instance the AME combines degenerative pathology with applicant's history of playing softball. As we noted with the psychiatric apportionment described above, the aggregation of multiple factors of disability effectively precludes a discussion of how and why each individual factor is currently manifesting in permanent disability. Nor does Dr. Watkins adequately describe how he arrived at the identified percentages of industrial and nonindustrial causation of disability. Similarly, the apportionment of 50 percent of applicant's left knee disability to "pre-existing factors including a history of previous injury, disability, and his history of playing softball," relies on a poorly documented history, and impermissibly aggregates multiple factors without adequate explanation of the etiology and contribution of each factor to applicant's present permanent disability levels.

Labor Code section 4663

A physician's report on permanent disability must include an apportionment determination explaining the percentage of disability caused by industrial injury and other factors, with reasoning based on reasonable medical probability.

Applied to evaluate the adequacy of apportionment opinions by AMEs.

From the decision · page 8(c) In order for a physician's report to be considered complete on the issue of permanent disability, it must include an apportionment determination. A physician shall make an apportionment determination by finding what approximate percentage of the permanent disability was caused by the direct result of injury arising out of and occurring in the course of employment and what approximate percentage of the permanent disability was caused by other factors both before and subsequent to the industrial injury, including prior industrial injuries. If the physician is unable to include an apportionment determination in his or her report, the physician shall state the specific reasons why the physician could not make a determination of the effect of that prior condition on the permanent disability arising from the injury. The physician shall then consult with other physicians or refer the employee to another physician from whom the employee is authorized to seek treatment or evaluation in accordance with this division in order to make the final determination.

Labor Code section 5909

A petition for reconsideration is deemed denied unless acted upon within 60 days from the date a trial judge transmits a case to the appeals board.

Procedural rule governing reconsideration petitions in this case.

From the decision · page 4I. Former Labor Code1 section 5909 provided that a petition for reconsideration was deemed denied unless the Appeals Board acted on the petition within 60 days from the date of filing. (Lab. Code, § 5909.) Effective July 2, 2024, section 5909 was amended to state in relevant part that: (a) A petition for reconsideration is deemed to have been denied by the appeals board unless it is acted upon within 60 days from the date a trial judge transmits a case to the appeals board.

Vigil v. County of Kern (2024) 89 Cal.Comp.Cases 686

The methodology for combining permanent disability percentages must comply with the en banc decision in Vigil v. County of Kern (2024).

Referenced in defendant's petition and WCJ's report for record development on apportionment and disability addition.

Applicant's vocational experts and physicians uniformly opined applicant is not feasible for vocational retraining and cannot work in the open labor market.

Defendant's apportionment opinions by AMEs lacked substantial evidence and failed to adequately explain causation of disability.

From the decision · page 13Thus, and following our independent review of the medical evidence occasioned by defendant's Petition, we agree with the WCJ's conclusion that the apportionment identified in the medical-legal reporting does not constitute substantial evidence. Insofar as defendant bears the burden of establishing such apportionment, that burden has not been met, and applicant is entitled