In Faustina v. County of Los Angeles, ADJ10627978, the Workers’ Compensation Appeals Board upheld the Workers’ Compensation Judge’s (WCJ) decision finding that the applicant’s disability was permanent and total and that no apportionment was warranted. The applicant, a firefighter, filed three claims for injuries to multiple body parts. One of the applicant’s claims involved a low back injury, for which the WCJ determined that the applicant had suffered permanent total disability, with no legal basis for apportionment. The defendant argued that the applicant’s inability to return to the labor market was not solely due to industrial injuries but also due to non-industrial factors, such as pre-existing conditions and vocational deficiencies.
The WCJ’s decision was based on the medical opinions of the independent medical examiners (IMEs), Dr. Richman (neurology) and Dr. Recasens (ophthalmology), who did not describe any non-industrial apportionment. Furthermore, the WCJ relied on applicant’s vocational expert Dr. Reyes’ report, which indicated that the applicant was not suitable for rehabilitation and could not return to the labor market due to the effects of his industrial injuries. Dr. Reyes noted that vocational testing demonstrated that the applicant performed poorly in a work-like environment, and that his symptoms, though not necessarily precluding him from work on a purely medical basis, would prevent him from maintaining employment in the real world. Dr. Reyes concluded that the applicant should be considered 100% permanently and totally disabled as a result of his industrial injuries.
The defendant filed a Petition for Reconsideration, contending the following: (1) that the WCJ had not properly considered the apportionment analysis provided by the orthopedic IME, Dr. Hasday, who apportioned a portion of the disability to pre-existing conditions such as shoulder arthrosis and degenerative disc disease; (2) that the vocational evidence relied upon is not substantial evidence as the various IME reporting are inconsistent with a finding of permanent total disability; and (3) that the vocational evidence used has inaccurate facts of mechanisms, incorrect testing scores and invalid ability assessments making the vocational evidence not substantial evidence.
On reconsideration, the WCAB panel upheld the WCJ’s decision, agreeing that the applicant’s permanent total disability was primarily caused by the industrial injuries, and that non-industrial factors could not be used to reduce the disability rating.
In its analysis, the WCAB emphasized that the apportionment analysis by Dr. Reyes was based on impermissible “vocational apportionment,” which is not an appropriate substitute for valid medical apportionment. See Nunes v. State of California, Dept. of Motor Vehicles (2023) 88 Cal.Comp.Cases 741, 751 [2023 Cal. Wrk. Comp. LEXIS 46] (Appeals Bd. en banc) [ “[t]he same considerations used to evaluate whether a medical expert’s opinion constitutes substantial evidence are equally applicable to vocational reporting”].) The WCAB stated that vocational apportionment, such as Dr. Reyes’ analysis, does not constitute substantial evidence because it failed to consider valid medical apportionment. The panel also explained that Dr. Reyes’ observations regarding the applicant’s vocational limitations were relevant to assessing the applicant’s ability to work but could not replace medical apportionment analysis under California law.
Unfortunately for the defendant, the WCAB also found that the orthopedic apportionment analysis provided by Dr. Hasday did not meet the legal standard for substantial evidence. Under Escobedo v. Marshalls (2005), 70 Cal.Comp.Cases 604, the WCAB noted that to be considered substantial evidence, a medical opinion on apportionment must be framed in terms of reasonable medical probability, not speculation, and it must be based on pertinent facts from an adequate examination and history. Further, the WCAB observed that Escobedo requires that a medical opinion on apportionment explain both how and why nonindustrial or prior industrial factors are contributing to the permanent disability.
In this case, Dr. Hasday apportioned 10% of the applicant’s bilateral shoulder disability to preexisting AC joint arthrosis and 10% of the low back disability to preexisting degenerative disc disease and congenitally short pedicles. However, Dr. Hasday did not adequately explain how or why these conditions were currently contributing to the applicant’s permanent disability. The WCAB found that Dr. Hasday’s apportionment opinion lacked the necessary explanation and reasoning to meet the legal requirements under Escobedo.
Under California Labor Code (LC) section 4663, to be considered substantial, a medical opinion on apportionment must set forth a clear, reasoned explanation addressing how and why nonindustrial and prior industrial factors are contributing to permanent disability. The WCAB found that Dr. Hasday’s apportionment opinions did not meet the requirements of LC section 4663 or the Escobedo decision.
In conclusion, the WCAB agreed with the WCJ’s finding that the applicant’s permanent total disability was established by the medical evidence, including the IME reports and vocational evaluations. The WCAB also concluded that the apportionment opinions provided by the orthopedic IME did not constitute substantial evidence.
The panel, thus, affirmed the WCJ’s Findings & Award and awarded the applicant an unapportioned 100% permanent disability award.
By: Rochel M. Go, Law Clerk, San Francisco Office, March 2025
