ADJ10899987 — California WCAB decision

What the panel ordered

Petition for reconsideration denied.

Petition for reconsideration filed by defendants challenging the May 30, 2022 Amended Findings and Award, including apportionment, average weekly wage calculation, and temporary disability credit issues.

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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.

ApportionmentDefendant prevailedleft knee

Dr. Lewis' apportionment opinion was found not to constitute substantial medical evidence because it was based on impairment rather than causation of disability and lacked adequate explanation.

From the decision · page 5Dr. Lewis found that "80% of [applicant's] impairment is due to the advanced osteoarthritis already present in the left knee prior to the injury 01§ 07/29/16. The remaining 20% is due to the injury of 07/29/l6" (Court's X, p. 22, lines 4-5). This opinion on apportionment was found not to constitute substantial medical evidence, and accordingly was not applied to the permanent disability.

Earnings / average weekly earnings

The facts that decided it

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

Dr. Lewis' apportionment opinion was based on impairment, not causation of disability, and lacked explanation of how degenerative arthritis caused current disability.

Favours Defendant prevailed

This led to rejection of the apportionment opinion as not substantial medical evidence, affecting the permanent disability award.

From the decision · page 6With respect to the decision not to incorporate the nonindustrial apportionment found by Dr. Lewis, the regular physician found that "80% of [applicant's] impairment is due to the advanced osteoarthritis already present in the left knee prior to the injury of 07/29/16. The remaining 20% is due to the injury of 07/29/16" (Court's X, p, 22, lines 4-5), This opinion on apportionment was found not to constitute substantial medical evidence, and accordingly was not applied to the permanent disability. Labor Code section 4663 requires apportionment to be based upon causation of disability, not impairment, and, as explained in E.L. Yeager Co11strucrio11 v. Workers' Comp. Appeals Ed (Galien) (2006) 71 Cal. Comp. Cases 1687 and Escobedo v. Marsha/ls (2005) 70 Cal. Comp. Cases 604, to be substantial evidence on the issue of the approximate percentages of permanent disability due to the direct results of the injury and the approximate percentage of permanent disability due to other factors, a medical opinion must be framed in terms of reasonable medical probability, it must not be speculative, it must be based on pertinent facts and on an adequate examination and history, and it must set forth reasoning in support of its conclusions:

The average weekly wage was calculated using the last four weeks of earnings after a pay raise, excluding a four-week layoff period which was not related to earning capacity.

Favours Defendant prevailed

This supported the panel's decision to uphold the wage calculation and temporary disability rate.

Credit was allowed for temporary disability payments made by defendants and for the EDD lien settlement, but not for other EDD benefits paid to applicant.

Favours Defendant prevailed

This resolved the dispute over temporary disability credit in favor of defendants.

The rules the panel named

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

Labor Code section 4663; E.L. Yeager Construction v. Workers' Comp. Appeals Bd. (Galien) (2006) 71 Cal. Comp. Cases 1687; Escobedo v. Marshalls (2005) 70 Cal. Comp. Cases 604

Apportionment must be based on causation of disability, not impairment, and must be supported by substantial medical evidence including explanation of causation percentages.

The panel rejected Dr. Lewis' apportionment opinion for lack of substantial medical evidence because it was based on impairment rather than causation and lacked explanation.

From the decision · page 6With respect to the decision not to incorporate the nonindustrial apportionment found by Dr. Lewis, the regular physician found that "80% of [applicant's] impairment is due to the advanced osteoarthritis already present in the left knee prior to the injury of 07/29/16. The remaining 20% is due to the injury of 07/29/16" (Court's X, p, 22, lines 4-5), This opinion on apportionment was found not to constitute substantial medical evidence, and accordingly was not applied to the permanent disability. Labor Code section 4663 requires apportionment to be based upon causation of disability, not impairment, and, as explained in E.L. Yeager Co11strucrio11 v. Workers' Comp. Appeals Ed (Galien) (2006) 71 Cal. Comp. Cases 1687 and Escobedo v. Marsha/ls (2005) 70 Cal. Comp. Cases 604, to be substantial evidence on the issue of the approximate percentages of permanent disability due to the direct results of the injury and the approximate percentage of permanent disability due to other factors, a medical opinion must be framed in terms of reasonable medical probability, it must not be speculative, it must be based on pertinent facts and on an adequate examination and history, and it must set forth reasoning in support of its conclusions:

Labor Code section 4453

Average weekly wage calculation should represent the injured employee's earning capacity at the time of injury, using reasonable methods including recent earnings if justified.

The panel upheld the calculation of average weekly wage based on the last four weeks of earnings after a pay raise, excluding layoff period as it did not reflect earning capacity.

From the decision · page 7With respect to the average weekly earnings issue, Labor Code section 4453(c)(1) indicates that the number of days worked per week should be multiplied by the daily earnings, because applicant was employed for more than 30 hours per week, and five or more days a week, However, the evidence, a wage statement admitted as Joint 1, did not show daily earnings, even though the rate of pay was hourly, not weekly. Alternatively, if for any reason other methods of calculating earnings cannot reasonably and fairly be applied, Labor Code section 4453(c)(4) allows actual earnings to be duly considered to determine "100 percent of the sum which reasonably represents the average weekly earning capacity of the injured employee at the time of his or her injury." In this case, the applicant's earning capacity at the time of injury was calculated by averaging the last four weeks of earnings shown in Joint I, which were paid after an increase in pay from $24 per hour to $25 per hour. It is not reasonable to assume that applicant's earnings capacity at the time of injury was anything less than $25 per hour, or that it would be reduced in the future. Also, the fact that applicant experienced a four-week layoff should not be used to reduce the determination of his earning capacity, because there is no evidence to suggest that the layoff has anything to do with applicant's capacity for earnings, nor

Labor Code Section 4656

Temporary disability compensation is limited to 104 weeks and credits for payments made must be applied appropriately.

The panel allowed credit for temporary disability payments made by defendants and for the EDD lien settlement, but not for other EDD benefits paid to applicant.

ADJ10899987 · August 22, 2022

What the panel ordered

What was disputed, and how it came out

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The facts that decided it

What the panel did with the medical opinions

The rules the panel named

What proof carried it

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