ADJ16996210 · November 12, 2024

Defendant failed to prove overlap of prior permanent disability with current disability beyond what the WCJ found, so no additional apportionment was warranted.

From the decision · page 1Defendant seeks reconsideration of a workers' compensation administrative law judge's (WCJ) Findings and Award of August 13, 2024, wherein it was found that while employed as a truck driver during a cumulative period ending November 9, 2022, applicant sustained industrial injury to his knees, thoracic spine and lumbar spine causing permanent disability of 29% after Labor Code section 4664 apportionment to a prior award of permanent disability. It appears uncontested that applicant sustained a previous industrial injury to the thoracic spine and knees during a cumulative period ending June 16, 2015 which resulted in a stipulated Award of 24% permanent disability in case ADJ10089577. In finding compensable permanent disability of 29% in the instant case, the WCJ found that the award of thoracic spine permanent disability in the previous case completely overlapped the permanent disability in the current case, and thus no new thoracic permanent disability was awarded. It was found that applicant's prior award of right knee permanent disability partially overlapped the disability caused in the current case, and the WCJ thus subtracted 3% right knee permanent disability from applicant's overall permanent disability pursuant to Labor Code section 4664.

Defendant did not procure supplemental report from PQME Dr. Harvey Wieseltier analyzing apportionment overlap.

Favours Applicant prevailed

Without this evidence, defendant failed to prove overlap of prior disability with current disability beyond WCJ's findings.

From the decision · page 4In this case, the WCJ found that it was appropriate to subtract the thoracic spine and a portion of the right knee disabilities because the evaluating physicians in the prior and subsequent cases used the same AMA Guides methods to rate the disabilities. Thus, it was determined by the WCJ that these disabilities overlapped because they affected the same activities of daily living. However, the other disabilities in the instant case were rated utilizing different ratings methods than those used to determine applicant's impairment in the prior case. Although the use of different ratings methods does not always preclude Labor Code section 4664 apportionment, in order to prove overlap, evidence needs to be introduced that the impairments overlapped. In this case, panel qualified medical evaluator (PQME) orthopedist Harvey Wieseltier, M.D. repeatedly asked for the documents in the underlying case in order to analyze the issue of apportionment (August 11, 2023 report at p. 45; November 22, 2023 report at pp. 25-27; June 20, 2024 report at p. 5.) It appears that discovery remained open after the mandatory settlement conference to allow the PQME to submit a supplemental report on this issue, but defendant never procured the report prior to submission of the case.

Repeatedly requested underlying case documents to analyze apportionment but defendant did not procure supplemental report before case submission.

From the decision · page 4In this case, the WCJ found that it was appropriate to subtract the thoracic spine and a portion of the right knee disabilities because the evaluating physicians in the prior and subsequent cases used the same AMA Guides methods to rate the disabilities. Thus, it was determined by the WCJ that these disabilities overlapped because they affected the same activities of daily living. However, the other disabilities in the instant case were rated utilizing different ratings methods than those used to determine applicant's impairment in the prior case. Although the use of different ratings methods does not always preclude Labor Code section 4664 apportionment, in order to prove overlap, evidence needs to be introduced that the impairments overlapped. In this case, panel qualified medical evaluator (PQME) orthopedist Harvey Wieseltier, M.D. repeatedly asked for the documents in the underlying case in order to analyze the issue of apportionment (August 11, 2023 report at p. 45; November 22, 2023 report at pp. 25-27; June 20, 2024 report at p. 5.) It appears that discovery remained open after the mandatory settlement conference to allow the PQME to submit a supplemental report on this issue, but defendant never procured the report prior to submission of the case.

Kopping v. Workers' Comp. Appeals Bd. (2006) 142 Cal.App.4th 1099

Labor Code section 4664 apportionment requires proof of overlap between current and prior permanent disability.

Defendant failed to prove overlap beyond what WCJ found, so no additional apportionment was warranted.

From the decision · page 3Turning to the merits, in order to find apportionment under Labor Code section 4664, the defendant must prove that there is overlap between the current disability and the disability that was subject to the prior award. (Kopping v. Workers' Comp. Appeals Bd. (2006) 142 Cal.App.4th 1099 [71 Cal.Comp.Cases 1229].) According to the Court of Appeal in Kopping, in order to apportion under section 4664, "First, the employer must prove the existence of the prior permanent disability award. Then, having established by this proof that the permanent disability on which that award was based still exists, the employer must prove the extent of the overlap, if any, between the prior disability and the current disability. Under these circumstances, the employer is entitled to avoid liability for the claimant's current permanent disability only to the extent the employer carries its burden of proving that some or all of that disability overlaps with the prior disability and is therefore attributable to the prior industrial injury, for which the employer is not liable." (Id. at p. 1115.)

Sanchez v. County of Los Angeles (2005) 70 Cal.Comp.Cases 1440

Disabilities overlap when they affect the same abilities to compete and earn.

Overlap determined by whether impairments affect same activities of daily living.

From the decision · page 3In Sanchez v. County of Los Angeles (2005) 70 Cal.Comp.Cases 1440, 1447 (Appeals Bd. en banc) (disapproved on other grounds in Kopping, supra), we held that disabilities overlap when they affect the "same abilities to compete and earn...." We further explained in Sanchez that, "The mechanics of rating overlap generally provided that each separate factor of permanent disability for both the new industrial injury and the pre-existing condition be set forth, so it could be determined what elements, if any, of one disability were included in the other. [Citation.] The issue of apportionment would be resolved by determining the percentage of combined disability

PQME Dr. Harvey Wieseltier repeatedly requested underlying case documents to analyze apportionment but defendant did not procure supplemental report.

From the decision · page 4In this case, the WCJ found that it was appropriate to subtract the thoracic spine and a portion of the right knee disabilities because the evaluating physicians in the prior and subsequent cases used the same AMA Guides methods to rate the disabilities. Thus, it was determined by the WCJ that these disabilities overlapped because they affected the same activities of daily living. However, the other disabilities in the instant case were rated utilizing different ratings methods than those used to determine applicant's impairment in the prior case. Although the use of different ratings methods does not always preclude Labor Code section 4664 apportionment, in order to prove overlap, evidence needs to be introduced that the impairments overlapped. In this case, panel qualified medical evaluator (PQME) orthopedist Harvey Wieseltier, M.D. repeatedly asked for the documents in the underlying case in order to analyze the issue of apportionment (August 11, 2023 report at p. 45; November 22, 2023 report at pp. 25-27; June 20, 2024 report at p. 5.) It appears that discovery remained open after the mandatory settlement conference to allow the PQME to submit a supplemental report on this issue, but defendant never procured the report prior to submission of the case.