What the panel ordered
Applicant's petition for reconsideration granted; defendant's petition denied; November 26, 2024 Second Amended Findings and Award affirmed with amendments to Findings nos. 3, 4, 6, and 11; issues of temporary disability length and attorney's fees deferred.
Petitions for reconsideration filed by both applicant and defendant; case transmitted to Appeals Board for decision on reconsideration.
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.
Defendant failed to meet burden of proof for apportionment under Labor Code sections 4663 and 4664 due to lack of medical evidence and prior award documentation.
From the decision · page 8As to the issue of apportionment, we adopt and incorporate the following from the Report:
Attorney's fees issue was deferred pending determination of temporary disability period.
The parties stipulated that applicant was a maximum earner, and the WCAB held that the stipulation could not be set aside without a hearing, so the finding of maximum earnings was affirmed.
From the decision · page 6Here, the parties stipulated that applicant was a maximum wage earner on March 11, 2024, after the parties were ordered to develop the record on applicant's earnings. (Minutes of Hearting dated March 11, 2024, p. 2:7.) Although the issue of earnings was still an issue for trial, as the WCJ points out (Report, p. 7), there is no record that defendant moved to be relieved from such stipulation and section 5702 does not permit the WCJ to find contrary to the stipulation absent a hearing and an opportunity for the parties to be heard on this issue. The record does not show a hearing or trial past March 11, 2024. Instead, the record is full of petitions for reconsideration followed by multiple orders vacating and amending Findings and Awards, with the same judicial determination that applicant is not a maximum earner and only clerical changes on the amount of applicant's earnings. This is not permitted absent a full hearing on why the stipulation should be set aside. More importantly, the record does not show that defendant sought to set aside the stipulation.
The issue was not reached as the prior Findings and Award did not contain a finding on this benefit.
From the decision · page 7The November 20, 2024 "Second Amended Findings and Award" did not contain a finding on the Supplemental Job Displacement Benefit and we do not reach this issue.
The issue of the length of temporary disability was deferred to the trial level for further record development due to lack of substantial evidence.
From the decision · page 7On the issue of temporary disability, we appreciate applicant's argument that his injury occurred during a unique time of a pandemic with a shelter-in-place order. However, a decision "must be based on admitted evidence in the record" (Hamilton v. Lockheed Corporation (Hamilton) (2001) 66 Cal. Comp. Cases 473, 478 (Appeals Board en banc)), and must be supported by substantial evidence. (§ 5903, 5952, subd. (d); Lamb v. Workmen's Comp. Appeals Bd. (1974) 11 Cal.3d 274 [39 Cal. Comp. Cases 310]; Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312 [35 Cal. Comp. Cases 500]; LeVesque v. Workers' Comp. Appeals Bd. (1970) 1 Cal.3d 627 [35 Cal. Comp. Cases 16].) Here, we return this matter to the trial level to develop the record on the period of temporary disability. (§ 5701, 5906; Tyler v. Workers' Comp. Appeals Bd. (1997) 56 Cal.App.4th 389, 392-394 [62 Cal.Comp.Cases 924]; see McClune v. Workers' Comp. Appeals Bd. (1998) 62 Cal.App.4th 1117, 1120-1122 [63 Cal.Comp.Cases 261].)
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Parties stipulated applicant was a maximum earner on March 11, 2024.
Favours Applicant prevailed
The stipulation was binding and could not be set aside without a hearing, leading to affirmation of maximum earnings finding.
From the decision · page 6Here, the parties stipulated that applicant was a maximum wage earner on March 11, 2024, after the parties were ordered to develop the record on applicant's earnings. (Minutes of Hearting dated March 11, 2024, p. 2:7.) Although the issue of earnings was still an issue for trial, as the WCJ points out (Report, p. 7), there is no record that defendant moved to be relieved from such stipulation and section 5702 does not permit the WCJ to find contrary to the stipulation absent a hearing and an opportunity for the parties to be heard on this issue. The record does not show a hearing or trial past March 11, 2024. Instead, the record is full of petitions for reconsideration followed by multiple orders vacating and amending Findings and Awards, with the same judicial determination that applicant is not a maximum earner and only clerical changes on the amount of applicant's earnings. This is not permitted absent a full hearing on why the stipulation should be set aside. More importantly, the record does not show that defendant sought to set aside the stipulation.
Defendant failed to present prior award and medical evidence to support apportionment claim.
Favours Applicant prevailed
Without sufficient evidence, defendant did not meet burden of proof for apportionment, favoring applicant.
From the decision · page 8Defendant failed to meet their burden of proof to establish Labor Code § 4664 apportionment.
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.
Opined that 50% of permanent impairment to cervical spine was related to prior condition and 50% to the recent injury, but provided no 'how and why' analysis.
The opinion lacked sufficient explanation and was not supported by prior award evidence, leading to rejection of defendant's apportionment claim.
From the decision · page 9Here, after reviewing voluminous medical reports from both the current and prior injury, QME Brooks opined "It is my opinion, therefore, that 50% of his permanent impairment affecting his cervical spine is related to his prior condition and 50% is related to the more recent specific injury of 7/21/2020." There is absolutely no "how and why" analysis as to how he reached that conclusion. Additionally, the prior award and supporting evidence were not provided to the court to review.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Labor Code section 5702
Labor Code section 5702 regarding stipulations.
The WCAB held that a stipulation may not be set aside without a hearing and opportunity to be heard.
From the decision · page 6Here, the parties stipulated that applicant was a maximum wage earner on March 11, 2024, after the parties were ordered to develop the record on applicant's earnings. (Minutes of Hearting dated March 11, 2024, p. 2:7.) Although the issue of earnings was still an issue for trial, as the WCJ points out (Report, p. 7), there is no record that defendant moved to be relieved from such stipulation and section 5702 does not permit the WCJ to find contrary to the stipulation absent a hearing and an opportunity for the parties to be heard on this issue. The record does not show a hearing or trial past March 11, 2024. Instead, the record is full of petitions for reconsideration followed by multiple orders vacating and amending Findings and Awards, with the same judicial determination that applicant is not a maximum earner and only clerical changes on the amount of applicant's earnings. This is not permitted absent a full hearing on why the stipulation should be set aside. More importantly, the record does not show that defendant sought to set aside the stipulation.
Labor Code section 4664
Labor Code section 4664 regarding apportionment liability.
Employer bears burden to prove overlap between current and prior disability.
Labor Code section 4663
Labor Code section 4663 regarding apportionment based on causation.
Defendant must present prior award and medical evidence explaining causation.
What proof carried it
The evidence the panel weighed, by kind.
Parties stipulated applicant was a maximum earner on March 11, 2024.
From the decision · page 6Here, the parties stipulated that applicant was a maximum wage earner on March 11, 2024, after the parties were ordered to develop the record on applicant's earnings. (Minutes of Hearting dated March 11, 2024, p. 2:7.) Although the issue of earnings was still an issue for trial, as the WCJ points out (Report, p. 7), there is no record that defendant moved to be relieved from such stipulation and section 5702 does not permit the WCJ to find contrary to the stipulation absent a hearing and an opportunity for the parties to be heard on this issue. The record does not show a hearing or trial past March 11, 2024. Instead, the record is full of petitions for reconsideration followed by multiple orders vacating and amending Findings and Awards, with the same judicial determination that applicant is not a maximum earner and only clerical changes on the amount of applicant's earnings. This is not permitted absent a full hearing on why the stipulation should be set aside. More importantly, the record does not show that defendant sought to set aside the stipulation.
Defendant failed to present prior award and medical evidence to support apportionment claim.
From the decision · page 8Defendant failed to meet their burden of proof to establish Labor Code § 4664 apportionment.
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About this page
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