ADJ13704483 — California WCAB decision

What the panel ordered

Petition for Reconsideration denied.

Petition for Reconsideration filed by defendant challenging WCJ's determination of occupational group code and apportionment was denied by the Appeals Board panel.

Read the official decision →

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 prevailedleft knee · right shoulder

The WCJ and Appeals Board found that Dr. Einbund's apportionment opinion did not adequately explain how and why nonindustrial factors caused permanent disability, thus it was not substantial evidence to support apportionment to nonindustrial causes. Defendant did not meet burden of proof for apportionment.

From the decision · page 4Finally, defendant avers the WCJ improperly rejected the nonindustrial apportionment identified by both PTP Dr. Einbund and QME Dr. Tran. Defendant observes that both physicians reviewed relevant medical records and offered apportionment opinions based thereon. (Petition, at p. 7:6.) However, we agree with the WCJ's assessment that a review of the records is not the relevant standard with respect to whether an apportionment opinion constitutes substantial evidence. As we noted in our en banc decision in Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604 [2005 Cal. Wrk. Comp. LEXIS 71] (Appeals Bd. en banc) (Escobedo), the mere fact that a physician's report purports to address the issue of causation of permanent disability and makes an apportionment determination by finding the approximate respective percentages of industrial and non-industrial causation does not necessarily render the report substantial evidence upon which we may rely. Rather, the report 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 that factors other than the industrial injury at issue caused permanent disability. (Id. at p. 621.) Our decision in Escobedo summed up the minimum requirements for an apportionment analysis as follows:

The facts that decided it

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

Applicant's credible testimony at trial about actual job duties was given great weight by WCJ and Appeals Board, supporting occupational group code determination.

Favours Applicant prevailed

Credibility determination was key to occupational group code issue outcome.

From the decision · page 3more physically demanding than the beginning of his coaching career, and that applicant "found being an instructor more difficult than his time pitching in the Major League...." (Report, at p. 4.) After a careful review of the evidence concerning applicant's actual job duties, including the testimony of applicant which the WCJ determined to be fully credible, the WCJ found that applicant's job duties most closely aligned with occupational group number 493. We have given the WCJ's credibility determination(s) great weight because the WCJ had the opportunity to observe the demeanor of the witness(es). (Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312, 318-319 [35 Cal.Comp.Cases 500].) Based on our independent review of the evidentiary record, we conclude there is no evidence of considerable substantiality that would warrant rejecting the WCJ's credibility determination(s). (Id.)

Dr. Einbund's apportionment opinion did not adequately explain how nonindustrial factors caused permanent disability, failing Escobedo requirements.

Favours Applicant prevailed

Lack of adequate explanation led to rejection of apportionment and denial of defendant's claim.

From the decision · page 4Finally, defendant avers the WCJ improperly rejected the nonindustrial apportionment identified by both PTP Dr. Einbund and QME Dr. Tran. Defendant observes that both physicians reviewed relevant medical records and offered apportionment opinions based thereon. (Petition, at p. 7:6.) However, we agree with the WCJ's assessment that a review of the records is not the relevant standard with respect to whether an apportionment opinion constitutes substantial evidence. As we noted in our en banc decision in Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604 [2005 Cal. Wrk. Comp. LEXIS 71] (Appeals Bd. en banc) (Escobedo), the mere fact that a physician's report purports to address the issue of causation of permanent disability and makes an apportionment determination by finding the approximate respective percentages of industrial and non-industrial causation does not necessarily render the report substantial evidence upon which we may rely. Rather, the report 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 that factors other than the industrial injury at issue caused permanent disability. (Id. at p. 621.) Our decision in Escobedo summed up the minimum requirements for an apportionment analysis as follows:

ADJ13704483 · July 7, 2025

What the panel ordered

What was disputed, and how it came out

Your case already resembles someone else’s. Find whose.

The facts that decided it

What the panel did with the medical opinions

The rules the panel named

What proof carried it

About this page