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Publication ordered: Substantial Evidence for Apportionment Case  

December 15, 2006

I am republishing this message because the Court of Appeals has now ordered the decision to by published.  This important case can now be cited as authority for its language on substantial evidence.  The decision becomes instant mandatory reading for every attorney in the California Workers; Comp system.  The California Workers' Compensation Institute (and perhaps others) filed prompt requests to the Court for publication status on this case.  In his request for publication, CWCI's amicus counsel pointed out that this decision was the first appellate ruling on this particular aspect of apportionment (substantial evidence), noting the Court's observation that the W.C.A.B. paid "lip service" to the rules on apportionment and then promptly ignored them.


The courts additional points are also significant:

  1. The revisions to Labor Code § 4663 do not require a showing that there was pre-existing disability to justify apportionment
  2. A well reasoned opinion of a physician that non-industrial factors contributed to the current permanent disability, based on the doctors' medical expertise and which describes an approximate percentage of disability attributable to the non-industrial factors meets the defendant's burden on this issue.

The link in the case below has been changed to the published decision but the test of the decision is the same as the unpublished case.  Only the publication status has changed


Jake Jacobsmeyer




November 28, 2006

Apportionment Decision on Standards for Proof of Apportionment


The 4th Appellate District has issued the first appellate decision on the legal standards involved in applying Labor Code § 4663.  Inexplicably, after providing significant commentary and guidance on the evidentiary burden under that section, the court orders the opinion to not be published.  Given that this decision is the only current appellate authority on this important topic, we can only hope that the court recognizes the significance of its decision and changes the status of the case and orders it published..


In Yeager Const. Co v W.C.A.B. (Gatten) the court was presented with a W.C.A.B. decision which had declined to apportion disability under Labor Code § 4663 to a previous mildly symptomatic but essentially non-disabling level of degenerative disc disease (DDD).  The reporting physician had felt that apportionment of 20% was appropriate based on the applicant's significant level of pre-existing multiple level DDD and the prior history of mild symptoms.  The trial judge and the W.C.A.B. had rejected the physician's conclusion arguing that the doctor's opinion was not substantial evidence.  


The Appellate Court looked at each of the WCJ's & W.C.A.B.'s arguments and was unimpressed.  The Court seemed to feel that the W.C.A.B.'s arguments were disingenuous and that the Board attempted to apply pre-SB 899 rules at the same time claiming that it recognized the applicability of the new standards.


The primary criticism leveled by the WCJ and W.C.A.B. was the lack of history of prior disabling symptoms.   The court noted:


".. In contrast, the Board's rejection of his opinion on apportionment is based on an analysis of the facts that would have been appropriate under the prior law, rather than the current one.  While paying lip service to the new standard that apportionment can be warranted if there is a preinjury asymptomatic condition, the doctor's report is criticized in large part because of the absence of significant preinjury medical treatment or disability.  It points out, for instance, that applicant suffered from minor episodic back pain prior to his injury, but notes that such pain is not a ratable disability.  This is, of course, true, but this fact is not significant under the new law.  An asymptomatic prior condition would not involve a ratable disability, so that the fact that applicant here did not have a history of medical treatment or lost time due to his degenerative back condition is not significant under the new apportionment standards and does not serve as a basis to disregard Dr. Akmakjian's opinion.  If the Board's analysis were the norm, apportionment under the new standard could rarely, if ever, be found.". (emphasis added by author)


It is clear that the Appellate Court felt that the W.C.A.B. was not following its own guidelines and rational from Escobedo.  The W.C.A.B. had quoted extensively from that opinion in its arguments and then promptly refused to follow their own ruling instead attempting to utilize the pre-AB 899 criterion for apportionment.


The Court also addressed the W.C.A.B.'s argument that the doctor's opinion was "speculative", an argument that is frequently advocated by Applicant Attorneys and accepted by WCJs.  Even physicians, who can provide opinions on the most obtuse medical issues, are all too often willing participants is this argument.  The same kind of medical judgment that doctors are willing to provide on issues involving judgement such as PD, contribution and other medically based issues, suddenly becomes "speculative" when apportionment is the issue.  


However the Appellate Court did not think so:


".A medical expert may well view a person's history of minor back problems as being more significant in light of the evidence of substantial degeneration of the back shown by an MRI.  Dr. Akmakjian did so here.  His conclusion cannot be disregarded as being speculative when it was based on his expertise in evaluating the significance of these facts.  This was a matter of scientific medical knowledge and the Board impermissibly substituted its judgment for that of the medical expert."


The Appellate Court also found the physician's opinion of the percentage of apportionment to be legally supportable even though it was expressed in approximate terms:


".Finally, the 20 percent figure that Dr. Akmakjian used is based on his subjective evaluation, but we cannot conclude that it is merely a random number that he settled upon.  He himself noted that apportionment would have been greater if applicant had had more extensive treatment for his back.  On the other hand, the doctor may have given applicant a higher disability rating because he appeared to be in more pain than other patients with similar injuries because of the preexisting pathology.  In Dr. Akmakjian's words, applicant just did not have a normal back.  The doctor made a determination based on his medical expertise of the approximate percentage of permanent disability caused by degenerative condition of applicant's back.  Section 4663, subdivision (c), requires no more." (emphasis added by author)


Each of the arguments presented to the Appellate Court are advocated on a daily basis at the W.C.A.B. by Applicant Attorneys and acquiesced in by WCJs, in part because there is such a lack of legal definition of the issues.  I have yet to hear a single WCJ advise an applicant attorney that their report fails to meet the affirmative burden imposed by Escobedo for presentation of substantial evidence as to the percentage of causation for the industrial injury.  But in every case the issue of whether the defendant has met their burden on apportionment is raised.  Under the guidelines set out in Escobedo[1], the initial burden is on applicant to present substantial evidence on how much of the permanent disability is attributable to the industrial injury, and then the burden shifts to defendant to present evidence of apportionment.  


What typically happens at the W.C.A.B. is a report for applicant is presented stating that it is "speculative" to apportion to non-industrial causes and then a legal conclusion is made by the physician that all of the PD is industrial (in effect applying the pre-SB 899 rule that the PD was by default industrial in the absence of substantial evidence for apportionment).  In reality there ends up being no substantial medical opinion on the issue of causation and yet the defendant is still expected to meet its burden on presenting substantial evidence to justify apportionment (and as demonstrated by the trial and W.C.A.B. decisions in the instant case - the burden is frequently misstated to defendant's detriment).    The holding in this case goes a long way toward dispelling the myth that defendant's are unable to meet their burden with carefully outlined medical opinions and further that the opinion on apportionment does not require exactness but merely what the statute requires, an approximation of the values for causation.


In one respect defendants are failing to meet their burden.  As pointed out by the W.C.A.B. in its arguments; for an opinion on causation (either industrial or non-industrial) to be "substantial evidence", a physician must give more than an number.  The percentage of causation opinion must be supported by a discussion as to the basis for the physician's opinion.  As expressed in Escobedo the physician must describe the " how" and the "why" of causation.   "How" the contributing factor played a role in causing the PD and "why" the physician believes the contributing factor is playing a role in the current level of PD. 


".if a physician opines that 50% of an employee's back disability is caused by degenerative disc disease, the physician must explain the nature of the degenerative disc disease, how and why it is causing permanent disability at the time of the evaluation, and how and why it is responsible for approximately 50% of the disability."  (Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 621, fn. omitted.)"


Failing to provide this critical information is one of the most frequent mistakes that defendants make in presenting their case for apportionment before the WCAB.  Good case preparation can go a long way toward making it more difficult for WCJ's to dismiss defendant's valid arguments on apportionment.  This kind of preparation must be evaluated and completed long before the case gets to the MSC in order to make certain that the record is complete.  With many W.C.A.B. venues becoming able to set cases for MSC within 60 days of getting a Declaration of Readiness to Proceed, waiting till the MSC to make certain the record is adequate is a prescription for failure.


A copy of this case can be located by clicking on the citation above.


Section 3 of the holding in Escobedo states:

"3) Under section 4663, the applicant has the burden of establishing the percentage of permanent disability directly caused by the industrial injury, and the defendant has the burden of establishing the percentage of disability caused by other factors."


Richard M. Jacobsmeyer

Certified Specialist, Workers' Compensation Law

The State Bar of California Board of Legal Specialization



475 – 14th Street, Suite 850

Oakland, CA 94612

Tel: (510) 645-7172

Fax: (866) 563-0092

Certified Specialist, Workers' Compensation Law The State Bar of California Board of Legal Specialization

Shaw, Jacobsmeyer, Crain & Claffey, PC
1600 Riviera Avenue, Suite 305, Walnut Creek, CA 94596 Phone:(510) 645-7172 Fax (866) 563-0092

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