What was disputed, and how it came out
Each issue the panel decided, with the reasoning it gave. An outcome is what this panel did on this record — not a rule, and not a prediction.
Dr. Garland's apportionment opinion lacked explanation of the nature and causation of non-industrial factors, thus not constituting substantial evidence; the Board found 14% permanent disability without apportionment to non-industrial factors.
From the decision · page 2On January 26, 2022, orthopedic AME Dr. Garland evaluated applicant. Dr. Garland examined applicant, took a history, and reviewed the medical record. The doctor diagnosed applicant as having anterolisthesis (vertebral slippage/displacement) of L5 on S1 with radicular pain in her left leg. He said that applicant's condition had reached maximum medical improvement (MMI) and he assigned 8% whole person impairment. ((Joint Exh. 100, Dr. Garland, January 26, 2022, pp. 8 § 9.) Regarding apportionment, Dr. Garland stated:
From the decision · page 3discretion to allow a credit for overpaid compensation against an award of different species of
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Dr. Garland's apportionment report did not explain the nature or causation of non-industrial factors causing disability.
Favours Applicant prevailed
This failure meant the report was not substantial evidence to support apportionment, leading to a 14% permanent disability finding without apportionment.
From the decision · page 2On January 26, 2022, orthopedic AME Dr. Garland evaluated applicant. Dr. Garland examined applicant, took a history, and reviewed the medical record. The doctor diagnosed applicant as having anterolisthesis (vertebral slippage/displacement) of L5 on S1 with radicular pain in her left leg. He said that applicant's condition had reached maximum medical improvement (MMI) and he assigned 8% whole person impairment. ((Joint Exh. 100, Dr. Garland, January 26, 2022, pp. 8 § 9.) Regarding apportionment, Dr. Garland stated:
Applicant has not returned to work since January 9, 2020, and the temporary disability overpayment was not due to error or misconduct.
Favours Applicant prevailed
These facts supported the Board's exercise of discretion to deny credit for the overpayment to avoid undue burden and hardship on applicant.
What the panel did with the medical opinions
The role the physician served, and the weight the opinion carried. Physicians are named here as the decision names them; we do not score them.
Assigned 8% whole person impairment; opined 50% of disability due to industrial injury and 50% due to pre-existing factors but did not explain nature or causation of non-industrial factors, thus report not substantial evidence for apportionment.
Dr. Garland did not explain the nature of non-industrial factors or how they caused disability at evaluation time, failing substantial evidence standard for apportionment.
From the decision · page 2On January 26, 2022, orthopedic AME Dr. Garland evaluated applicant. Dr. Garland examined applicant, took a history, and reviewed the medical record. The doctor diagnosed applicant as having anterolisthesis (vertebral slippage/displacement) of L5 on S1 with radicular pain in her left leg. He said that applicant's condition had reached maximum medical improvement (MMI) and he assigned 8% whole person impairment. ((Joint Exh. 100, Dr. Garland, January 26, 2022, pp. 8 § 9.) Regarding apportionment, Dr. Garland stated:
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Labor Code Section 5952(d)
Any award, order, or decision of the Appeals Board must be supported by substantial evidence.
Applied to evaluate the sufficiency of medical evidence for apportionment.
From the decision · page 2DISCUSSION Any award, order, or decision of the Appeals Board. 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].) In order to constitute substantial evidence addressing the issue of apportionment, the medical opinion must identify the approximate percentages of permanent disability due to the direct results of the injury and the approximate percentage of permanent disability due to other
Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604 (Appeals Board en banc)
Medical opinion must identify approximate percentages of disability due to injury and other factors, and explain nature and causation of other factors to constitute substantial evidence on apportionment.
Applied to assess Dr. Garland's apportionment opinion and found lacking.
From the decision · page 3factors. (Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604 (Appeals Board en banc).)
Labor Code Section 4909
Board has discretion to allow credit for overpaid temporary disability against permanent disability indemnity, weighing equities and hardship.
Applied to deny credit for temporary disability overpayment due to hardship on applicant.
From the decision · page 3discretion to allow a credit for overpaid compensation against an award of different species of
What proof carried it
The evidence the panel weighed, by kind.
Dr. Garland's apportionment report lacked explanation of non-industrial factors causing disability, failing substantial evidence standard.
From the decision · page 2On January 26, 2022, orthopedic AME Dr. Garland evaluated applicant. Dr. Garland examined applicant, took a history, and reviewed the medical record. The doctor diagnosed applicant as having anterolisthesis (vertebral slippage/displacement) of L5 on S1 with radicular pain in her left leg. He said that applicant's condition had reached maximum medical improvement (MMI) and he assigned 8% whole person impairment. ((Joint Exh. 100, Dr. Garland, January 26, 2022, pp. 8 § 9.) Regarding apportionment, Dr. Garland stated:
Applicant has not returned to work since January 9, 2020, supporting hardship against credit for temporary disability overpayment.
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About this page
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