ADJ1351389 — California WCAB decision

What the panel ordered

Reconsideration granted, prior Second Amended Findings and Award of September 22, 2017 rescinded, and matter returned to WCJ for further proceedings and new Findings and Award consistent with Court of Appeal's opinion.

Remittitur from the Sixth District Court of Appeal, which annulled the prior WCAB Opinion and Decision After Reconsideration of June 17, 2019 and remanded for further proceedings consistent with the Court's opinion.

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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.

Permanent disability ratingRemanded

The Court of Appeal annulled the prior permanent disability award because the psychiatric reports relied upon were not substantial evidence due to reliance on a rejected legal theory, and the applicant's evidence was insufficient to rebut the scheduled rating for psychiatric disability. The Court also clarified the burden of proof for apportionment and the conditions for a single award of permanent disability.

From the decision · page 1In our Opinion and Decision After Reconsideration of June 17, 2019, we affirmed the unapportioned award of permanent and total disability issued by the workers' compensation judge (WCJ) in his Second Amended Findings and Award of September 22, 2017. In its decision of May 7, 2021, however, the Court of Appeal annulled our Opinion and Decision After Reconsideration of June 17, 2019 and remanded the matter to the WCAB for further proceedings consistent with the Court's opinion. In sum, the Court concluded that the award of 100 percent permanent disability must be annulled because: (a) the psychiatric reports that the WCAB relied on did not constitute substantial evidence since Dr. Sidle relied on an incorrect legal theory, the alternative path theory, that was rejected in Department of Corrections & Rehabilitation v. Workers' Comp. Appeals Bd. (Fitzpatrick) (2018) 27 Cal.App.5th 607 [83 Cal.Comp.Cases 1680]; and (b) applicant's evidence was otherwise insufficient to rebut the scheduled rating for her psychiatric disability.

The facts that decided it

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

Psychiatric reports relied upon by WCAB were based on the alternative path theory, which was rejected by the Fitzpatrick case, thus not substantial evidence.

Favours Defendant prevailed

This led to the annulment of the prior permanent disability award.

From the decision · page 1In our Opinion and Decision After Reconsideration of June 17, 2019, we affirmed the unapportioned award of permanent and total disability issued by the workers' compensation judge (WCJ) in his Second Amended Findings and Award of September 22, 2017. In its decision of May 7, 2021, however, the Court of Appeal annulled our Opinion and Decision After Reconsideration of June 17, 2019 and remanded the matter to the WCAB for further proceedings consistent with the Court's opinion. In sum, the Court concluded that the award of 100 percent permanent disability must be annulled because: (a) the psychiatric reports that the WCAB relied on did not constitute substantial evidence since Dr. Sidle relied on an incorrect legal theory, the alternative path theory, that was rejected in Department of Corrections & Rehabilitation v. Workers' Comp. Appeals Bd. (Fitzpatrick) (2018) 27 Cal.App.5th 607 [83 Cal.Comp.Cases 1680]; and (b) applicant's evidence was otherwise insufficient to rebut the scheduled rating for her psychiatric disability.

Applicant's evidence was insufficient to rebut the scheduled rating for psychiatric disability.

Favours Defendant prevailed

This supported the Court of Appeal's decision to annul the prior award.

From the decision · page 1In our Opinion and Decision After Reconsideration of June 17, 2019, we affirmed the unapportioned award of permanent and total disability issued by the workers' compensation judge (WCJ) in his Second Amended Findings and Award of September 22, 2017. In its decision of May 7, 2021, however, the Court of Appeal annulled our Opinion and Decision After Reconsideration of June 17, 2019 and remanded the matter to the WCAB for further proceedings consistent with the Court's opinion. In sum, the Court concluded that the award of 100 percent permanent disability must be annulled because: (a) the psychiatric reports that the WCAB relied on did not constitute substantial evidence since Dr. Sidle relied on an incorrect legal theory, the alternative path theory, that was rejected in Department of Corrections & Rehabilitation v. Workers' Comp. Appeals Bd. (Fitzpatrick) (2018) 27 Cal.App.5th 607 [83 Cal.Comp.Cases 1680]; and (b) applicant's evidence was otherwise insufficient to rebut the scheduled rating for her psychiatric disability.

The rules the panel named

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

Benson v. Workers' Comp. Appeals Bd. (2009) 170 Cal.App.4th 1535

Burden of proof for apportionment lies with defendants; single award of permanent disability justified only in limited circumstances.

Applied to clarify apportionment issue on remand.

From the decision · page 2The Court of Appeal also provided guidance on the issue of apportionment, noting that defendants have the burden of proving apportionment, that the issue is whether this case is one of "limited circumstances" that justifies a single award of permanent disability as discussed in Benson v. Workers' Comp. Appeals Bd. (2009) 170 Cal.App.4th 1535 [74 Cal.Comp.Cases 113], and that "[w]orkers' compensation law also recognizes that the need for medical care may result from the combined effects of more than one injury. In such cases, a joint and several award of medical treatment in favor of the employee is permitted, subject to later apportionment between the responsible employers or carriers." (Applied Materials v. Workers' Comp. Appeals Bd. (2021) 64 Cal.App.5th 1042, 1099 [86 Cal.Comp.Cases 331], citations omitted.)

Department of Corrections & Rehabilitation v. Workers' Comp. Appeals Bd. (Fitzpatrick) (2018) 27 Cal.App.5th 607

Psychiatric reports relying on the alternative path theory do not constitute substantial evidence.

Applied to annul prior permanent disability award due to insufficient evidence.

From the decision · page 1In our Opinion and Decision After Reconsideration of June 17, 2019, we affirmed the unapportioned award of permanent and total disability issued by the workers' compensation judge (WCJ) in his Second Amended Findings and Award of September 22, 2017. In its decision of May 7, 2021, however, the Court of Appeal annulled our Opinion and Decision After Reconsideration of June 17, 2019 and remanded the matter to the WCAB for further proceedings consistent with the Court's opinion. In sum, the Court concluded that the award of 100 percent permanent disability must be annulled because: (a) the psychiatric reports that the WCAB relied on did not constitute substantial evidence since Dr. Sidle relied on an incorrect legal theory, the alternative path theory, that was rejected in Department of Corrections & Rehabilitation v. Workers' Comp. Appeals Bd. (Fitzpatrick) (2018) 27 Cal.App.5th 607 [83 Cal.Comp.Cases 1680]; and (b) applicant's evidence was otherwise insufficient to rebut the scheduled rating for her psychiatric disability.

ADJ1351389 · July 6, 2022

What the panel ordered

What was disputed, and how it came out

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The facts that decided it

The rules the panel named

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