California WCABPanel decision

ADJ12140821 · April 12, 2024

Petition for Reconsideration granted; WCJ Findings of Fact of January 25, 2024 rescinded; new Findings and Award substituted granting applicant 42% permanent partial disability without apportionment; permanent disability indemnity and attorney fees awarded.

Issues decided: 1
Medical opinions weighed: 2
Authorities named: 2
District office: Sacramento

What the panel ordered

Defendant sought reconsideration of the WCJ Findings of Fact issued January 25, 2024, which the WCAB panel granted, rescinding the Findings and substituting new Findings and Award.

Read the official decision →

This docket was decided more than once. Shown here is the latest released decision; we also hold June 9, 2023.

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 prevailedright shoulder

Dr. Abelow's reports did not explain how and why non-industrial factors caused permanent disability or the assigned percentage, thus not substantial evidence; defendant failed to meet burden of proof on apportionment.

From the decision · page 3August 9, 2023 supplemental report, do not constitute substantial evidence addressing the issue of apportionment. (Escobedo v. Marshalls, supra.)1

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The rules the panel named

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

Labor Code section 4663(c)

Defendant has the burden of establishing the approximate percentage of permanent disability caused by factors other than the industrial injury (Labor Code section 4663(c)).

Defendant failed to meet burden of proof on apportionment due to lack of substantial evidence.

From the decision · page 4evidence as to the issues submitted for decision. (See San Bernardino Community Hosp. v. Workers' Comp. Appeals Bd. (McKernan) (1999) 74 Cal.App.4th 928 [64 Cal.Comp.Cases 986].) In accordance with Labor Code section 4663(c), the defendant has the burden of establishing the approximate percentage of permanent disability caused by factors other than the industrial injury. (See also, Lab. Code, § 05705.) In this matter, by our June 9, 2023 Order, we gave defendant the opportunity to develop the record so that it contained substantial evidence regarding the issue of apportionment. If a party fails to meet its burden of proof by obtaining and introducing competent evidence, it is not the job of the Appeals Board to rescue that party by ordering the record to be developed. (San Bernardino Community Hospital v. Workers' Comp. Appeals Bd. (McKernan), supra; Telles Transport Inc. v. Workers' Comp. Appeals Bd. (2001) 92 Cal.App.4th 1159 [66 Cal.Comp.Cases 1290].) Under the circumstances of this matter, it is not necessary, nor is it appropriate, that we again order further development of the record. Thus, defendant did not meet its burden of proof and applicant is entitled to an un-apportioned award of permanent disability. Therefore, applicant's disability is rated as follows: 16.02.02.00 - 23 - 32 -322G - 35 - 42%.

Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 621 (Appeals Board en banc)

To constitute substantial evidence on apportionment, the physician must explain the nature of the non-industrial factors, how and why those factors cause permanent disability at the time of evaluation, and how and why those factors are responsible for the percentage assigned (Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 621).

Dr. Abelow's reports did not meet this standard and thus were not substantial evidence on apportionment.

From the decision · page 3(Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 621 (Appeals Board en banc).)

ADJ12140821 · April 12, 2024

What the panel ordered

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The facts that decided it

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