ADJ9616392 · September 13, 2021

Dr. Snook's reports did not explain how and why the pre-existing degenerative condition caused permanent disability or justified the 30% apportionment, so they were not substantial evidence. Defendant did not meet its burden of proof, entitling applicant to an unapportioned award.

From the decision · page 4As noted above, in his July 19, 2020 report Dr. Snook gave a detailed description of applicant's pre-existing degenerative lower back condition. (Joint Exh. EE, p. 4.) However, the doctor did not explain how and why the pre-existing degenerative condition was causing permanent disability at the time of the evaluation, nor did he explain how and why it was responsible for 30% of applicant's lumbar spine disability. His report is not substantial evidence on the issue of apportionment and cannot be the bases for the F&A. Thus, defendant did not meet its burden of proof and applicant is entitled to an unapportioned award of permanent disability.

Dr. Snook's report did not explain how and why the pre-existing degenerative condition caused permanent disability or justified the 30% apportionment.

Favours Applicant prevailed

This failure meant the report was not substantial evidence, so defendant did not meet its burden of proof on apportionment.

From the decision · page 4As noted above, in his July 19, 2020 report Dr. Snook gave a detailed description of applicant's pre-existing degenerative lower back condition. (Joint Exh. EE, p. 4.) However, the doctor did not explain how and why the pre-existing degenerative condition was causing permanent disability at the time of the evaluation, nor did he explain how and why it was responsible for 30% of applicant's lumbar spine disability. His report is not substantial evidence on the issue of apportionment and cannot be the bases for the F&A. Thus, defendant did not meet its burden of proof and applicant is entitled to an unapportioned award of permanent disability.

Assigned 23% whole person impairment plus 3% pain add-on; apportioned 70% industrial injury and 30% non-industrial factors but did not adequately explain the apportionment.

Report did not explain how and why the pre-existing degenerative condition caused permanent disability or justified the 30% apportionment, so it was not substantial evidence.

From the decision · page 4As noted above, in his July 19, 2020 report Dr. Snook gave a detailed description of applicant's pre-existing degenerative lower back condition. (Joint Exh. EE, p. 4.) However, the doctor did not explain how and why the pre-existing degenerative condition was causing permanent disability at the time of the evaluation, nor did he explain how and why it was responsible for 30% of applicant's lumbar spine disability. His report is not substantial evidence on the issue of apportionment and cannot be the bases for the F&A. Thus, defendant did not meet its burden of proof and applicant is entitled to an unapportioned award of permanent disability.

Interpreted imaging studies showing severe stenosis and degenerative changes contributing to disability.

Referenced by Dr. Snook's report to describe degenerative condition but no direct weight given by panel.

From the decision · page 2The degenerative conditions in the spine predated the date-specific injury of 07/26/13, but as noted the patient was able to engage in the full requisite duties of her job prior to that date--specific injury which caused her impairment and permanent disability, in part due to the injury and in part due to the surgical correction. ... Degenerative joint disease was seen in the facets at T12-L1 through L5-S1 except at L4-5 where the facets are fused. There was mild annular bulging of the discs L3-4 and L4-5 but diminished at L4-5 since the prior exam. There remains severe stenosis in the left neural foramen at L5-Sl from bulging discs which appear to entrap the left L5 nerve. As interpreted by James Engelhart, MD. The patient continues to complain of left lower back pain and

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

Employer has burden of proof to establish apportionment with substantial evidence.

Defendant did not meet burden as QME report was not substantial evidence on apportionment.

From the decision · page 3Apportionment is the process utilized to segregate permanent disability or the residuals caused by an industrial injury from those attributable to other industrial injuries or to nonindustrial factors, in order to fairly allocate legal responsibility. (Brodie, supra, 40 Cal.4th at p. 1321.) The employer has the burden of proof to establish apportionment of permanent disability with substantial evidence. (Kopping v. Workers' Comp. Appeals Bd. (2006) 142 Cal.App.4th 1099, 1107, 1114-1115 [71 Cal.Comp.Cases 1229].)

Labor Code section 4663

Labor Code section 4663 requires doctors' reports to address causation and make apportionment determinations.

QME reports must explain causation and apportionment percentages to be substantial evidence.

From the decision · page 3Labor Code section 4663 sets out various requirements for doctors' reports on the issue of apportionment, including that each report must "address" the issue of causation of the permanent disability and must make an "apportionment determination" by finding the approximate relative percentages of permanent disability directly caused by the industrial injury and that caused by other factors. (Lab. Code, § 4663) Nevertheless, the mere fact that a report "addresses" the issue of causation of the permanent disability and makes an "apportionment determination" by finding the approximate relative percentages of industrial and non-industrial causation does not necessarily render the report one upon which the Appeals Board may rely. This is because it is well established that any decision of the WCAB must be supported by substantial evidence. (Lab. Code, § 5952(d); Lamb v. Workmen's Comp. Appeals Bd. (1974) 11 Cal.3d 274, 281 [39 Cal.Comp.Cases 310]; Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312, 317 [35 Cal.Comp.Cases 500]; LeVesque v. Workmen's Comp. Appeals Bd. (1970) 1 Cal.3d 627, 635 [35 Cal.Comp.Cases 16].)

Lamb v. Workmen's Comp. Appeals Bd. (1974) 11 Cal.3d 274

Substantial evidence required for WCAB decisions (Lab. Code, § 5952(d); Lamb v. WCAB (1974) 11 Cal.3d 274).

QME report lacking explanation on apportionment was not substantial evidence.

From the decision · page 3Labor Code section 4663 sets out various requirements for doctors' reports on the issue of apportionment, including that each report must "address" the issue of causation of the permanent disability and must make an "apportionment determination" by finding the approximate relative percentages of permanent disability directly caused by the industrial injury and that caused by other factors. (Lab. Code, § 4663) Nevertheless, the mere fact that a report "addresses" the issue of causation of the permanent disability and makes an "apportionment determination" by finding the approximate relative percentages of industrial and non-industrial causation does not necessarily render the report one upon which the Appeals Board may rely. This is because it is well established that any decision of the WCAB must be supported by substantial evidence. (Lab. Code, § 5952(d); Lamb v. Workmen's Comp. Appeals Bd. (1974) 11 Cal.3d 274, 281 [39 Cal.Comp.Cases 310]; Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312, 317 [35 Cal.Comp.Cases 500]; LeVesque v. Workmen's Comp. Appeals Bd. (1970) 1 Cal.3d 627, 635 [35 Cal.Comp.Cases 16].)

Dr. Snook's failure to explain the causal relationship and percentage apportionment for the pre-existing degenerative condition

From the decision · page 4As noted above, in his July 19, 2020 report Dr. Snook gave a detailed description of applicant's pre-existing degenerative lower back condition. (Joint Exh. EE, p. 4.) However, the doctor did not explain how and why the pre-existing degenerative condition was causing permanent disability at the time of the evaluation, nor did he explain how and why it was responsible for 30% of applicant's lumbar spine disability. His report is not substantial evidence on the issue of apportionment and cannot be the bases for the F&A. Thus, defendant did not meet its burden of proof and applicant is entitled to an unapportioned award of permanent disability.