ADJ8819897 — California WCAB decision

What the panel ordered

Findings on injury amended to reflect stipulations and dismiss duplicative claim; combined permanent disability rating of 71% affirmed; award otherwise affirmed.

Defendant petitioned for reconsideration of the WCJ's Findings of Fact, Award and Orders of March 26, 2019. The WCAB granted reconsideration and issued this Decision After Reconsideration.

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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.

ApportionmentApplicant prevailedorthopedic

No medical evidence supports apportionment to obesity or diabetes; defendant did not meet burden of proof.

From the decision · page 6Defendant further alleges that there should be apportionment of permanent disability to applicant's underlying conditions of obesity and diabetes. Defendant's assertion that Dr. Garland should have apportioned permanent disability to applicant's obesity and diabetes is not supported by any medical evidence. As noted before, assertions are not evidence and are insufficient to meet defendant's burden of proof on apportionment.

AOE/COE

The facts that decided it

What the panel treated as outcome-determinative, and which side it favoured.

Dr. Garland opined that the disabilities from each orthopedic injury are so intertwined it is impossible to separate them.

Favours Applicant prevailed

Supported the finding that permanent disability could not be apportioned between injuries, justifying a combined award.

From the decision · page 6separate permanent disability awards. As noted before, defendant has the burden of proving apportionment, yet defendant refers to no evidence that Dr. Garland was able to parcel out, with reasonable medical probability, the approximate percentages to which each of applicant's distinct orthopedic injuries causally contributed to his orthopedic permanent disability. Therefore, we conclude that defendant has failed to meet its burden of proof, and we will affirm the WCJ's combined rating of orthopedic permanent disability. We repeat that in his medical report dated February 8, 2014, Dr. Garland opined that "the consequent disability from each [orthopedic injury] is so intertwined it is impossible to separate the consequences of one injury from the other."

Defendant failed to provide medical evidence supporting apportionment to obesity or diabetes.

Favours Applicant prevailed

Failure of proof meant no apportionment was applied to reduce applicant's permanent disability.

From the decision · page 6Defendant further alleges that there should be apportionment of permanent disability to applicant's underlying conditions of obesity and diabetes. Defendant's assertion that Dr. Garland should have apportioned permanent disability to applicant's obesity and diabetes is not supported by any medical evidence. As noted before, assertions are not evidence and are insufficient to meet defendant's burden of proof on apportionment.

Parties stipulated to specific injuries and cumulative trauma; duplicative claim dismissed.

Favours Applicant prevailed

Findings amended to reflect stipulations and avoid duplicative claims, clarifying the basis for the award.

From the decision · page 63. The following trial stipulation of the parties is adopted as the WCAB's finding of fact in ADJ9448366: applicant, while employed as a police officer, Occupational Group Number 490, at Fresno, California by the City of Fresno during a period of cumulative trauma ending January 18, 2013, sustained injury arising out of and in the course of employment to his heart and cardiovascular system; it is further found in ADJ9448366 that applicant sustained injury arising out of and in the course of employment to his neck, back, right shoulder and right arm.

The rules the panel named

Authorities as the decision cited them, with how this panel applied each one.

Lab. Code, §§ 3208.1, 3208.2

All questions of fact and law must be separately determined with respect to each specific or cumulative injury.

WCAB amended findings to separately determine injuries and dismiss duplicative claim.

From the decision · page 3Bank of America (2010) 75 Cal.Comp.Cases 613 (Appeals Board en banc) [delineating the roles of WCJs and physicians in the adjudication process].) Most importantly, statutory workers' compensation law provides that an industrial injury may be either specific or cumulative, and that all questions of fact and law must be separately determined with respect to each such injury. (Lab. Code, § 3208.1, 3208.2.) The WCJ's unquestioning acceptance of Dr. Garland's medical opinion that applicant's specific orthopedic injuries "melded into one cumulative trauma claim" was error, because the finding of a single cumulative trauma to supplant the other stipulated, specific injuries violates sections 3208.1 and 3208.2.

Kopping v. Workers' Comp. Appeals Bd. (2006) 142 Cal.App.4th 1099, 1114 [71 Cal.Comp.Cases 1229]

Defendant has the burden of proving apportionment.

WCAB found defendant did not meet burden to prove apportionment to obesity or diabetes.

From the decision · page 5As for apportionment, two issues are relevant here, i.e., whether there should be apportionment between the permanent disabilities resulting from applicant's various orthopedic injuries, and whether there should be apportionment of permanent disability based on applicant's obesity and diabetes. On both questions, it is well-settled that defendant has the burden of proving apportionment. (Kopping v. Workers' Comp. Appeals Bd. (2006) 142 Cal.App.4th 1099, 1114 [71 Cal.Comp.Cases 1229].)

Benson v. Workers' Comp. Appeals Bd. (2009) 170 Cal.App.4th 1535 [74 Cal.Comp.Cases 113]

Multiple injuries ordinarily require separate permanent disability awards unless the evaluating physician cannot parcel out the approximate percentages to which each injury contributed.

WCAB found combined award justified because physician could not parcel out percentages.

From the decision · page 5In reference to apportionment between injuries, in Benson v. Workers' Comp. Appeals Bd. (2009) 170 Cal.App.4th 1535 [74 Cal.Comp.Cases 113] the Court of Appeal concluded that pursuant to Senate Bill 899 enacted in 2004, the law of apportionment mandates that multiple injuries ordinarily require separate permanent disability awards. However, the Court also stated that "there may be limited circumstances...when the evaluating physician cannot parcel out, with reasonable medical probability, the approximate percentages to which each distinct industrial injury causally contributed to the employee's overall permanent disability. In such limited circumstances, when the employer has failed to meet its burden of proof, a combined award of permanent disability may still be justified." (170 Cal.App.4th at 1560.)

ADJ8819897 · August 26, 2022

What the panel ordered

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The facts that decided it

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