Authorities as the decision cited them, with how this panel applied each one.
Exception to 104-week TTD limit applies for amputation or comparable loss.
No evidence of amputation or comparable defect; exception not met.
From the decision · page 11Furthermore, Petitioner argues that applicant should be awarded an additional
"490 weeks of TTD" (Pet Recon pg 6, ln 3), without offering any evidence,
authority or argument to support this position. Therefore, it is the undersigned's
opinion that based on the above, Parco is not applicable in this matter as
applicant did not suffer an "amputation" nor did Petitioner offer evidence that
supported her contention....
Labor Code section 4663; Escobedo v. Marshalls (2005); Gay v. Workers' Comp. Appeals Bd. (1979)
Employer must prove apportionment based on reasonable medical probability; medical opinions must constitute substantial evidence.
Applied to reject AME's apportionment opinions as not substantial evidence.
From the decision · page 4While the employee holds the burden of proof regarding the approximate percentage of
permanent disability directly caused by the industrial injury, the employer holds the burden of
proof to show apportionment of permanent disability. (Lab. Code, § 5705; see also Escobedo v.
Marshalls (2005) 70 Cal.Comp.Cases 604, 613 (Appeals Board en banc), Pullman Kellogg v.
Workers' Comp. Appeals Bd. (Normand) (1980) 26 Cal.3d 450 [45 Cal.Comp.Cases 170].) To
meet this burden, the employer "must demonstrate that, based upon reasonable medical
probability, there is a legal basis for apportionment." (Gay v. Workers' Comp. Appeals Bd. (1979)
96 Cal.App.3d 555, 564 [44 Cal.Comp.Cases 817]; see also Escobedo, supra, 70 Cal.Comp.Cases
at p. 620.)
Athens Administrators v. WCAB (Kite)
Impairments may be added if substantial medical evidence supports that addition is more accurate (Kite).
No substantial evidence for addition method; CVC applied.
From the decision · page 9Petitioner fails to recognize that parties jointly agreed to utilize an Agreed
Medical Examiner. It is the AME, Dr. Sofia who is silent on this matter. In fact,
every medical report offered is silent as to Kite. In Kite, the WCJ relied upon
the opinion of a qualified medical evaluator who found there was a "synergistic
effect" of the injury to the bilateral hips versus body parts from different regions.
Unlike the QME in Kite, Dr. Sofia provided an impairment and states "I believe
the above impairments are accurate and reasonable per the Almaraz-Guzman
decision" (Jnt Ex W, pg 10). Dr. Sofia offered no discussion indicating Kite
applied. It is well known that the determination as to whether the final
permanent disability is rated using the combined values chart versus the
addition, is based upon the medical evidence. As in Kite, impairments may be
added if substantial medical evidence supports the physician's opinion that
adding them will result in a more accurate rating. In this instance, Dr. Sofia did
not provide a Kite analysis and was clear that the rating provided was "accurate
and reasonable". Even the prior AME, Dr. Zarins provided a strict rating and
did not offer a Kite analysis. Therefore, there is no basis to support Petitioner's
contention of a "Kite Application".
Contra Costa County v. WCAB (Dahl)
Total permanent disability requires credible evidence directly attributable to work injury, not nonindustrial factors.
PTP and vocational reports not substantial evidence; AME did not find 100% disability.
From the decision · page 12Now, Petitioner further argues that as to the claim of 100% permanent disability,
the applicant's primary treating physician, Dr. Biama is better qualified to assess
applicant's condition yet only offered a two paragraph declaration of his
conclusion. The Declaration is a simple conclusion and fails to address
industrial and non-industrial causation and apportionment, and is silent on any
discussion on how he reached that conclusion. Petitioner did not offer any of
Dr. Biama's medical reports for review or consideration. Nor did Petitioner
offer evidence which includes a discussion of causation by Dr. Biama....
The Court of Appeal in Contra Costa County vs. Workers' Compensation
Appeals Board (Dahl) (2015) 80 Cal.Comp.Cases 1119, discussing Ogilvie,
stated "[t]he court interpreted LeBoeuf and its progeny as limited in application
`to cases where the employee's diminished future earnings are directly
attributable to the employee's work-related injury, and not to nonindustrial
factors'". In this instance, based on the findings of the Agreed Medical
Examiner, Dr. Sofia, the applicant is not found to be 100% disabled. No
evidence was offered at Trial, providing any discussion as to a finding of 100%
or what contributed to Dr. Biama's conclusions in his Declaration.