What the panel ordered
Petition for Reconsideration granted limited to correcting the start date for the SAWW adjustment; otherwise, the Findings and Award of April 15, 2024, affirmed as amended.
Defendant sought reconsideration of the Findings and Award issued by the WCJ on April 15, 2024, which found applicant sustained injury on February 11, 2016, causing 81% permanent disability, and was entitled to permanent disability indemnity and life pension.
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 WCJ found no substantial medical evidence to support apportionment despite the AME's opinion, as the opinion did not meet the legal standards for apportionment under Escobedo and Brodie.
From the decision · page 6II. The WCJ did not err in rejecting defendant's permanent disability apportionment claim
The WCJ's use of Occupational Group 370 for rating permanent disability was supported by substantial evidence including applicant's job duties and testimony, and the Disability Evaluator's opinion.
From the decision · page 3I. The WCJ did not err by rating applicant's permanent disability using Occupational Group 370
The WCJ erred in setting the SAWW adjustment start date as January 1, 2018; the correct start date is January 1 following the year the life pension commences.
From the decision · page 10III. The WCJ applied the incorrect SAWW adjustment start date In the Report, the WCJ states that the F&A erroneously identified January 1, 2018 as the
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Applicant's job duties involved standing all day, lifting and moving large glass panes and window frames, consistent with Occupational Group 370.
Favours Applicant prevailed
Supported the WCJ's use of Occupational Group 370 for permanent disability rating.
From the decision · page 4As explained in the WCJ's Report, The employer produces finished windows of all sizes up to and including 10 ft. x 10 ft. Applicant stands all day and applies bead to window frames and installs the glass to the frames using mallets. The finished frames are then physically moved along the production line. So, he is lifting and moving large panes of glass as well as finished frames....
Disability Evaluator opined Occupational Groups 320 and 321 were not applicable to applicant's job activities, supporting use of Group 370.
Favours Applicant prevailed
Supported the WCJ's rating decision and rejection of defendant's argument for other groups.
From the decision · page 4specifically stated that Occupational Groups 320 and 321 were "not applicable" to applicant's job activities, whereas "[t]here is a factual basis to use Group 370." (Minutes of Hearing/Summary of Evidence (MOH/SOE), April 10, 2024, p. 2.) The Disability Evaluator's opinion was based upon a review of Dr. Silbart's medical reports, as well as applicant's testimony.
AME Dr. Silbart's apportionment opinion lacked detailed explanation and reasoning required by law, failing to meet substantial evidence standards.
Favours Defendant prevailed
Supported the WCJ's rejection of apportionment despite AME's opinion.
From the decision · page 10time of evaluation; and how and why these changes were responsible for the percentage of PD identified. (Escobedo, supra, 70 Cal.Comp.Cases at p. 621.) Thus, Dr. Silbart's medical opinion does not satisfy the standards set forth in Escobedo, and defendant did not carry its burden of proof on apportionment.
The SAWW adjustment start date was incorrectly set as January 1, 2018, and was corrected to January 1 following the year the life pension commences.
Favours Applicant prevailed
Resulted in granting reconsideration limited to correcting the SAWW adjustment start date.
From the decision · page 10III. The WCJ applied the incorrect SAWW adjustment start date In the Report, the WCJ states that the F&A erroneously identified January 1, 2018 as the
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.
Declared applicant permanent and stationary with factors of impairment in back, neck and right knee; used ROM method for spine evaluation; opined 10% apportionment to pre-existing degenerative disc changes but did not meet legal standards for apportionment evidence.
The AME's apportionment opinion lacked detailed explanation and reasoning required by Escobedo and Brodie to constitute substantial evidence.
From the decision · page 6Defendant contends that the WCJ should have apportioned PD for applicant's cervical and lumbar spine injuries, based upon AME Dr. Steven Silbart's statement that "the patient's current cervical and lumbar disability is apportioned 10% to the pre-existent degenerative disc changes, and 90% to the February 11, 2016 specific injury." (Court's Exh. X-5, Dr. Steven B. Silbart, M.D., AME Follow-Up Medical Legal Evaluation III, December 7, 2022, p. 12.) According to defendant, "since there is no other rationale to not apply apportionment, apportionment according to the AME should be applied." (Petition, p. 4.) As explained below, this is little more than an assertion that the WCJ should have apportioned 10% of applicant's PD to a preexisting, nonindustrial disease simply because the doctor "said so," which does not constitute substantial evidence to support such a finding by the WCJ.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Labor Code section 5705; Pullman Kellogg v. Workers' Comp. Appeals Bd. (1980) 26 Cal.3d 450; Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604
Defendant has burden of proof on apportionment and must demonstrate legal basis by reasonable medical probability.
Applied to reject defendant's apportionment claim due to lack of substantial evidence.
From the decision · page 6The defendant has the burden of proof on apportionment. (Lab. Code, § 5705; Pullman Kellogg v. Workers' Comp. Appeals Bd. (Normand) (1980) 26 Cal.3d 450, 456 [45 Cal.Comp.Cases 170]; Kopping v. Workers' Comp. Appeals Bd. (Kopping) (2006) 142 Cal.App.4th 1099, 1115 [71 Cal.Comp.Cases 1229]; Escobedo v. Marshalls (Escobedo) (2005) 70 Cal.Comp.Cases 604, 613 (Appeals Board en banc).) To meet this burden, the defendant "must demonstrate that, based upon reasonable medical probability, there is a legal basis for apportionment." (Gay v. Workers' Comp. Appeals Bd. (Gay) (1979) 96 Cal.App.3d 555, 564 [44 Cal.Comp.Cases 817]; see also Escobedo, supra, at p. 620.)
Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604
Apportionment must be based on causation of permanent disability, not injury.
Explained that apportionment relates to disability causation, requiring detailed medical explanation.
From the decision · page 7Under sections 4663 and 4664(a), the apportionment of permanent disability is based on causation. In Escobedo, the Appeals Board emphasized that the language in sections 4663 and 4664(a) stating that permanent disability shall be based on "causation" refers to causation of the injured employee's permanent disability, not causation of their injury. (Escobedo, supra, 70 Cal.Comp.Cases at pp. 607, 611.) Specifically, the Board explained that "the percentage to which an applicant's injury is causally related to his or her employment is not necessarily the same as the percentage to which an applicant's permanent disability is causally related to his or her injury. The analyses of these issues are different and the medical evidence for any percentage conclusions might be different." (Id. at p. 611, italics in original.)
Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604
Apportionment must be supported by substantial medical evidence with detailed reasoning.
Applied to find AME's apportionment opinion insufficient as it lacked detailed explanation and reasoning.
From the decision · page 7[T]he 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 that the Board can determine whether the physician is properly apportioning under correct legal principles. [Citations.]
Labor Code section 4659(c)
Life pension SAWW adjustment starts January 1 following the year the pension commences.
Corrected the SAWW adjustment start date in the Findings and Award.
From the decision · page 10Cal. Lab. Code sec. 4659(c) dictates that a life pension award shall be subject to an annual increase based on the "state average weekly wage" as increased over the rate from the previous year[.]4
What proof carried it
The evidence the panel weighed, by kind.
Applicant's testimony and job description supported use of Occupational Group 370 for PD rating.
From the decision · page 4As explained in the WCJ's Report, The employer produces finished windows of all sizes up to and including 10 ft. x 10 ft. Applicant stands all day and applies bead to window frames and installs the glass to the frames using mallets. The finished frames are then physically moved along the production line. So, he is lifting and moving large panes of glass as well as finished frames....
Disability Evaluator's opinion supported Occupational Group 370 rating over 320 or 321.
From the decision · page 4specifically stated that Occupational Groups 320 and 321 were "not applicable" to applicant's job activities, whereas "[t]here is a factual basis to use Group 370." (Minutes of Hearing/Summary of Evidence (MOH/SOE), April 10, 2024, p. 2.) The Disability Evaluator's opinion was based upon a review of Dr. Silbart's medical reports, as well as applicant's testimony.
AME's apportionment opinion did not meet substantial evidence standards under Escobedo and Brodie.
From the decision · page 10time of evaluation; and how and why these changes were responsible for the percentage of PD identified. (Escobedo, supra, 70 Cal.Comp.Cases at p. 621.) Thus, Dr. Silbart's medical opinion does not satisfy the standards set forth in Escobedo, and defendant did not carry its burden of proof on apportionment.
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