Appeals Board Reviews Apportionment Under The New Law

The applicant had an industrial injury to her left knee. The applicant alleged as a compensable consequence of that a right knee problem. The applicant had surgery to the left knee.

The defense doctor apportioned the applicant’s disability on the fact that the applicant had significant degenerative arthritis in both knees. This was based on reasonable medical probability.

The Workers’ Compensation Judge (WCJ) agreed with the defense doctor and apportioned. The applicant filed a petition for reconsideration.

The Workers’ Compensation Appeals Board ( WCAB) issued a n En Banc decision. They reviewed SB 899.

They indicated that Labor Code section 4663 (a)’s apportionment of permanent disability is based on causation of permanent disability , not causation of injury.

Section 4663 (c) indicates what standards the WCAB must use for this determination and how to determine what percentage of permanent disability was caused by other factors.

The applicant has the burden of determining the percentage of
disability caused by the injury while the defendant has the burden of what disability was caused by other factors.

Disability can be apportioned to pathology, asymptomatic prior conditions, and a retroactive prophylactic work preclusion, even though this had been disallowed in the past under prior case law. There must be substantial medical evidence of the apportionment. The doctor must state the reasons for the opinions and that it is based on reasonable medical probability.

Case: Escobedo v. Marshalls and CNA
This is an En Banc decision of the Appeals Board.

Harvey Brown
3501 Jamboree Rd. Suite 602
Newport Beach, CA 92660

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