ADJ9694061 · January 23, 2024

The WCJ ordered further development of the record for apportionment, but the WCAB found that the defendant failed to meet its burden of proof to establish apportionment, and further development would cause irreparable harm to the applicant. Therefore, the WCAB granted reconsideration, rescinded the WCJ's order, and returned the matter for decision on the current record.

From the decision · page 3On July 19, 2022, the Court of Appeal denied applicant's Petition for Writ of Review. On August 14, 2023, the parties proceeded to trial and offered additional reporting into evidence. Applicant withdrew her claim of injury to the right knee. (Minutes of Hearing (Further), dated August 14, 2023, at p. 2:1.) The parties submitted the matter for decision. (Id. at p. 1:22.) On November 2, 2023, the WCJ issued the F&O, ordering in relevant part that the August 14, 2023 submission be vacated, and directing the orthopedic AME to "write a supplemental report with a complete Benson analysis which includes the right hand/wrist and assesses apportionment to each separate date of injury." (F&O, Finding of Fact No. 2.) Applicant's November 27, 2023 Petition for Removal (Petition) avers the WCJ's F&O will result in significant prejudice and irreparable harm, and that the finding of no industrial injury to the right knee is unsupported in the record. (Petition, at p. 1:23.) The WCJ's Report observes that the decisions of the Appeals Board must be based on an accurate and fully developed evidentiary record, and that following further reflection on the issues raised by applicant, the WCJ recommends the Petition be granted.

The defendant failed to meet its burden of proof to establish apportionment between industrial injuries or to prior injuries or nonindustrial factors.

Favours Applicant prevailed

This failure meant that further development of the record for apportionment was unnecessary and would cause irreparable harm to the applicant, leading to the grant of reconsideration and rescission of the WCJ's order.

From the decision · page 6Here, the F&O vacated the submission of the matter for decision on the grounds that the record required further development to address apportionment. (F&O, Finding of Fact No. 2.) However, as was explained in Benson, supra, and Escobedo, supra, when the employer has failed to meet its burden of proof, a combined award of permanent disability is appropriate. (Escobedo, supra, at p. 613; Benson, supra, at p. 1560; see also Kopping, supra, at p. 1115.)

Labor Code section 5705; Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604

Burden of proof for apportionment rests with the defendant.

The defendant failed to meet its burden of proof to establish apportionment, leading to a combined award of permanent disability without apportionment.

From the decision · page 5Section 5705 provides that the burden of proof rests with the party with the affirmative of the issue. (Lab. Code, § 5705.) In Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604 (Appeals Board en banc) (Escobedo), we explained that pursuant to section 5705, the applicant has the burden of establishing the percentage of permanent disability directly caused by the industrial injury, while the defendant has the burden of establishing the percentage of disability caused by other factors. (Id. at p. 612.) We also discussed the options available to the parties in addressing issues of apportionment:

Benson v. Workers' Comp. Appeals Bd. (2009) 170 Cal.App.4th 1535

Each distinct industrial injury must be separately compensated based on its contribution to permanent disability.

The WCJ ordered further development of the record to address apportionment to each separate date of injury pursuant to Benson, but the WCAB found this unnecessary as the defendant did not meet its burden.

From the decision · page 3On July 19, 2022, the Court of Appeal denied applicant's Petition for Writ of Review. On August 14, 2023, the parties proceeded to trial and offered additional reporting into evidence. Applicant withdrew her claim of injury to the right knee. (Minutes of Hearing (Further), dated August 14, 2023, at p. 2:1.) The parties submitted the matter for decision. (Id. at p. 1:22.) On November 2, 2023, the WCJ issued the F&O, ordering in relevant part that the August 14, 2023 submission be vacated, and directing the orthopedic AME to "write a supplemental report with a complete Benson analysis which includes the right hand/wrist and assesses apportionment to each separate date of injury." (F&O, Finding of Fact No. 2.) Applicant's November 27, 2023 Petition for Removal (Petition) avers the WCJ's F&O will result in significant prejudice and irreparable harm, and that the finding of no industrial injury to the right knee is unsupported in the record. (Petition, at p. 1:23.) The WCJ's Report observes that the decisions of the Appeals Board must be based on an accurate and fully developed evidentiary record, and that following further reflection on the issues raised by applicant, the WCJ recommends the Petition be granted.

The defendant failed to meet its burden of proof to establish apportionment between industrial injuries or to prior injuries or nonindustrial factors.

From the decision · page 6Here, the F&O vacated the submission of the matter for decision on the grounds that the record required further development to address apportionment. (F&O, Finding of Fact No. 2.) However, as was explained in Benson, supra, and Escobedo, supra, when the employer has failed to meet its burden of proof, a combined award of permanent disability is appropriate. (Escobedo, supra, at p. 613; Benson, supra, at p. 1560; see also Kopping, supra, at p. 1115.)