ADJ11349173 · June 26, 2026

The WCJ and WCAB found that the opinions of Drs. Gupta and Wood on apportionment lacked substantial medical evidence and reasoning, thus defendant did not meet its burden of proof on apportionment.

From the decision · page 6Here, while the WCJ relied upon the submitted medical reporting from the AME/PQMEs for her findings on permanent disability, she found that the reports of Drs. Gupta and Wood are not substantial evidence on the issue of apportionment.

The WCAB found insufficient evidence to support the 12% attorney fee awarded and deferred the issue for further proceedings, ordering defendant to withhold 15% in trust pending resolution.

From the decision · page 8It is well established that the Appeals Board has exclusive jurisdiction over fees to be allowed or paid to applicants' attorneys. (Vierra v. Workers' Comp. Appeals Bd. (2007) 154 Cal.App.4th 1142, 1149 [72 Cal.Comp.Cases 1128]; Cal. Code Regs., tit. 8, § 10840.) In calculating attorney fees, our basic statutory command is that the fees awarded must be "reasonable." (Lab. Code, § 4903, 4906(a), (d).) Pursuant to section 4906, in determining what constitutes a "reasonable" attorney fee, the Appeals Board must consider four factors: 1) the responsibility assumed by the attorney; 2) the care exercised by the attorney; 3) the time expended by the attorney; and 4) the results obtained by the attorney. (Lab. Code, § 4906(d); see also Cal. Code Regs., tit. 8, § 10844.) In Vierra, the Court of Appeal held:

Dr. Gupta's apportionment opinions lacked reasoning and were not substantial evidence

Favours Defendant prevailed

This led to rejection of defendant's apportionment claim and affirmance of WCJ's permanent disability findings

From the decision · page 7orthopedic PQME, Dr. Wood, constitute substantial medical evidence on the issue of apportionment and that said apportionment should be applied to applicant's impairment. (Defendant's Petition, pp. 2-4.) Defendant cites to "Google AI Overview" as supporting evidence of Dr. Gutpa's apportionment findings. Google AI Overview, however, is not a proper medical authority for purposes of establishing substantial evidence on the issue of apportionment. Further, we agree with the WCJ that Dr. Gupta's opinions on apportionment are "devoid of any reasoning"

Dr. Wood did not explain basis for 30% apportionment or exclusion of 2016 injury

Favours Defendant prevailed

This undermined the substantiality of apportionment evidence and led to rejection of defendant's claim

From the decision · page 8Defendant similarly believes that Dr. Wood's opinions on apportionment constitute substantial medical evidence. As explained by the WCJ in her report, however, "Dr. Wood does not explain how and why there is 30% apportionment [for the November 6, 2004 motor vehicle accident] as opposed to some other percentage." (F&A and OOD, p. 4.) The WCJ further underscores the fact that Dr. Wood did not explain why apportionment was provided to the November 6, 2004 motor vehicle accident but not the 2016 cinderblock incident, notwithstanding medical reports which evidence that applicant rated his pain as a nine out of ten and continued to have ongoing back and neck problems after the cinderblock incident. (Ibid.)

Lack of evidence on attorney fees reasonableness

Favours Applicant prevailed

Resulted in deferral of attorney fees issue and remand for further proceedings

From the decision · page 9attorney fees. Under both the California and United States Constitutions, all parties in workers' compensation proceedings retain their fundamental right to due process and a fair hearing. (Rucker v. Workers' Comp. Appeals Bd. (2000) 82 Cal.App.4th 151, 157-158 [65 Cal.Comp.Cases 805].) A fair hearing includes, but is not limited to, the opportunity to call and cross-examine witnesses; introduce and inspect exhibits; and offer evidence in rebuttal. (Ibid.)

Applicant's cumulative workplace exposure aggravated and accelerated chronic rhinosinusitis; 50% of impairment related to nonindustrial factors; 10% whole person impairment due to chronic allergic rhinosinusitis; apportionment opinions lacked reasoning and were not substantial evidence.

Apportionment opinions lacked reasoning and were not substantial evidence.

From the decision · page 4In a report dated February 3, 2022, allergy/immunology PQME, Dr. Gupta, noted that based upon applicant's reported history, the medical records, and reported medical literature, applicant's "cumulative workplace exposure aggravated and accelerated the claimant's chronic rhinosinusitis." (Exhibit 2, p. 9.) He concluded that "[p]reexisting childhood symptoms consistent with allergic conjunctivitis along with the deviated nasal septum are significant non-industrial contributors" and that "50% of the patient chronic rhinosinusitis impairment" is "related to the nonindustrial factors[.]" (Id. at p. 10.)

Applicant sustained various whole person impairments to cervical spine, lumbar spine, shoulders, wrist, and foot; 30% apportionment to 2004 motor vehicle accident but no explanation for percentage or exclusion of 2016 injury; apportionment opinions lacked substantial evidence and were rejected.

Apportionment opinions lacked explanation and were not substantial evidence.

From the decision · page 3In a report dated May 4, 2021, orthopedic PQME, Dr. Wood, opined that applicant sustained a six percent (6%) WPI to the cervical spine and eight percent (8%) WPI to the lumbar spine under DRE category II, 2% WPI to each shoulder due to loss of range of motion, a 2% WPI to the left upper extremity due to carpal tunnel syndrome, a one percent (1%) WPI to the right foot due to plantar fasciitis, and no ratable impairments for the left knee or ankle as a result of the work injury. (Exhibit 6, pp. 34-36.) Dr. Wood noted a history of prior injuries including a November 6, 2004 motor vehicle accident resulting in injury to the cervical and lumbar spine with residuals. (Id. at p. 37.) A 2014 injury to applicant's neck, left shoulder and right ankle was also referenced but Dr.

Lab. Code, 5705

Burden of proof on party holding affirmative of issue (Lab. Code, 5705)

Defendant carries burden on apportionment issue; must show reasonable medical probability and legal basis for apportionment.

From the decision · page 6Turning now to the merits of the Petitions, it is well established that the burden of proof rests upon the party holding the affirmative of the issue. (Lab. Code, § 5705.) When an employee claims injury AOE/COE, it is therefore the employee, or the lien claimant who steps in the shoes of the employee, who carries the burden of proof in establishing industrial causation and they must show that the employment was a contributing cause. (South Coast Framing v. Workers' Comp. Appeals Bd. (Clark) (2015) 61 Cal.4th 291, 297- 298, 302; § 5705; 3600.) Pursuant to section 3202.5, the evidentiary burden of proof is to be met by a preponderance of the evidence. However, "[t]hat burden manifestly does not require the applicant to prove causation by scientific certainty." (Rosas v. Worker's Comp. Appeals Bd. (1993) 16 Cal.App.4th 1692, 1701 [58 Cal.Comp.Cases 313].)

Braewood Convalescent Hospital v. Workers' Comp. Appeals Bd. (Bolton) (1983) 34 Cal.3d 159

Substantial medical evidence must be reasonable, credible, and of solid value (Braewood Convalescent Hospital v. Workers' Comp. Appeals Bd. (Bolton) (1983) 34 Cal.3d 159)

Medical opinions on apportionment must be substantial evidence; opinions lacking reasoning or based on speculation are not substantial evidence.

From the decision · page 6Further, substantial medical evidence is used to establish industrial causation. "The term `substantial evidence' means evidence which, if true, has probative force on the issues. It is more than a mere scintilla, and means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion...It must be reasonable in nature, credible, and of solid value." (Braewood Convalescent Hospital v. Workers' Comp. Appeals Bd. (Bolton) (1983) 34 Cal.3d 159, 164 [48 Cal.Comp.Cases 566], emphasis removed and citations omitted.) Pursuant to E.L. Yeager v. Workers' Comp. Appeals Bd. (Gatten) (2006) 145 Cal.App.4th922, 928 [71 Cal.Comp.Cases 1687], "[a] medical opinion is not substantial evidence if it is based on facts no longer germane, on inadequate medical histories or examinations, on incorrect legal theories, or on surmise, speculation, conjecture, or guess. (citations.) Further, a medical report is not substantial evidence unless it sets forth the reasoning behind the physician's opinion, not merely his or her conclusions. (citation.)" "A medical report which lacks a relevant factual basis cannot rise to a higher level than its own inadequate premises. Such reports do not constitute substantial evidence to support a denial of benefits. (citation.)" (Kyle v. Workers' Comp. Appeals Bd (City and County of San Francisco) (1987) 195 Cal.App.3d 614, 621.)

Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604 (Appeals Bd. en banc)

Requirements for substantial evidence on apportionment (Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604 (Appeals Bd. en banc))

Medical opinion must disclose familiarity with apportionment concepts, describe apportionable disability, and set forth basis for opinion with reasoning under correct legal principles.

From the decision · page 7In Escobedo, the Appeals Board outlined the following requirements for substantial evidence on the issue of apportionment:

Lab. Code, 4906(d)

Attorney fees must be reasonable considering responsibility, care, time, and results (Lab. Code, 4906(d))

WCAB must consider four factors in determining reasonable attorney fees; evidence lacking to support 15% fee requested.

From the decision · page 8It is well established that the Appeals Board has exclusive jurisdiction over fees to be allowed or paid to applicants' attorneys. (Vierra v. Workers' Comp. Appeals Bd. (2007) 154 Cal.App.4th 1142, 1149 [72 Cal.Comp.Cases 1128]; Cal. Code Regs., tit. 8, § 10840.) In calculating attorney fees, our basic statutory command is that the fees awarded must be "reasonable." (Lab. Code, § 4903, 4906(a), (d).) Pursuant to section 4906, in determining what constitutes a "reasonable" attorney fee, the Appeals Board must consider four factors: 1) the responsibility assumed by the attorney; 2) the care exercised by the attorney; 3) the time expended by the attorney; and 4) the results obtained by the attorney. (Lab. Code, § 4906(d); see also Cal. Code Regs., tit. 8, § 10844.) In Vierra, the Court of Appeal held:

Dr. Gupta's apportionment opinions lacked reasoning and were not substantial evidence

From the decision · page 7orthopedic PQME, Dr. Wood, constitute substantial medical evidence on the issue of apportionment and that said apportionment should be applied to applicant's impairment. (Defendant's Petition, pp. 2-4.) Defendant cites to "Google AI Overview" as supporting evidence of Dr. Gutpa's apportionment findings. Google AI Overview, however, is not a proper medical authority for purposes of establishing substantial evidence on the issue of apportionment. Further, we agree with the WCJ that Dr. Gupta's opinions on apportionment are "devoid of any reasoning"

Dr. Wood did not explain the basis for 30% apportionment or exclusion of 2016 injury

From the decision · page 8Defendant similarly believes that Dr. Wood's opinions on apportionment constitute substantial medical evidence. As explained by the WCJ in her report, however, "Dr. Wood does not explain how and why there is 30% apportionment [for the November 6, 2004 motor vehicle accident] as opposed to some other percentage." (F&A and OOD, p. 4.) The WCJ further underscores the fact that Dr. Wood did not explain why apportionment was provided to the November 6, 2004 motor vehicle accident but not the 2016 cinderblock incident, notwithstanding medical reports which evidence that applicant rated his pain as a nine out of ten and continued to have ongoing back and neck problems after the cinderblock incident. (Ibid.)