What the panel ordered
The WCAB granted the petition for reconsideration, rescinded the Findings and Award issued on March 27, 2024, and substituted findings including an 86% permanent disability rating, entitlement to temporary disability benefits for specified periods, and a cumulative injury period from December 1, 2008 through November 10, 2021.
Defendant sought reconsideration of the Findings and Award issued on March 27, 2024, which the WCJ had issued, and the WCAB granted reconsideration and issued a Decision After Reconsideration on June 13, 2024.
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.
The WCAB found that the defendant failed to meet its burden of proof on apportionment because the QME's opinion on apportionment was not framed in terms of reasonable medical probability and lacked adequate explanation, thus no apportionment to non-industrial factors was supported.
From the decision · page 9DISCUSSION We turn first to defendant's contention that WCJ erroneously found that defendant did not meet its burden of proof as to apportionment. In Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 612 (en banc), 70 Cal.Comp.Cases 1506 (writ den.), the Appeals Board held that (1) Labor Code section 4663 requires the reporting physician to make an apportionment determination; (2) apportionment to other factors allows apportionment to causation, including pathology, prior conditions, and retroactive work restrictions; (3) applicant holds the initial burden to prove industrial injury and also has the added burden of establishing the approximate percentage of permanent disability directly related to the industrial injury; (4) defendant has the burden of establishing the approximate permanent disability caused by other factors; and (5) a medical report addressing apportionment may not be relied upon unless it constitutes substantial evidence.