ADJ13704483 · July 7, 2025

The WCJ and Appeals Board found that Dr. Einbund's apportionment opinion did not adequately explain how and why nonindustrial factors caused permanent disability, thus it was not substantial evidence to support apportionment to nonindustrial causes. Defendant did not meet burden of proof for apportionment.

From the decision · page 4Finally, defendant avers the WCJ improperly rejected the nonindustrial apportionment identified by both PTP Dr. Einbund and QME Dr. Tran. Defendant observes that both physicians reviewed relevant medical records and offered apportionment opinions based thereon. (Petition, at p. 7:6.) However, we agree with the WCJ's assessment that a review of the records is not the relevant standard with respect to whether an apportionment opinion constitutes substantial evidence. As we noted in our en banc decision in Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604 [2005 Cal. Wrk. Comp. LEXIS 71] (Appeals Bd. en banc) (Escobedo), the mere fact that a physician's report purports to address the issue of causation of permanent disability and makes an apportionment determination by finding the approximate respective percentages of industrial and non-industrial causation does not necessarily render the report substantial evidence upon which we may rely. Rather, the report must disclose familiarity with the concepts of apportionment, describe in detail the exact nature of the apportionable disability, and set forth the basis for the opinion that factors other than the industrial injury at issue caused permanent disability. (Id. at p. 621.) Our decision in Escobedo summed up the minimum requirements for an apportionment analysis as follows:

The WCJ's determination of occupational group code based on applicant's credible testimony and actual job duties was supported by substantial evidence and was not disturbed by the Appeals Board.

From the decision · page 2Defendant's Petition challenges the WCJ's determination of applicant's occupational group code, asserting that applicant's work as a professional baseball coach falls under occupational group code 390. (Petition for Reconsideration (Petition), dated April 22, 2025, at p. 3:7.) The WCJ's Report observes that her determination was based on applicant's testimony at trial, including his testimony that his time spent working for the defendant from 1999 to 2014 was

Applicant's credible testimony at trial about actual job duties was given great weight by WCJ and Appeals Board, supporting occupational group code determination.

Favours Applicant prevailed

Credibility determination was key to occupational group code issue outcome.

From the decision · page 3more physically demanding than the beginning of his coaching career, and that applicant "found being an instructor more difficult than his time pitching in the Major League...." (Report, at p. 4.) After a careful review of the evidence concerning applicant's actual job duties, including the testimony of applicant which the WCJ determined to be fully credible, the WCJ found that applicant's job duties most closely aligned with occupational group number 493. We have given the WCJ's credibility determination(s) great weight because the WCJ had the opportunity to observe the demeanor of the witness(es). (Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312, 318-319 [35 Cal.Comp.Cases 500].) Based on our independent review of the evidentiary record, we conclude there is no evidence of considerable substantiality that would warrant rejecting the WCJ's credibility determination(s). (Id.)

Dr. Einbund's apportionment opinion did not adequately explain how nonindustrial factors caused permanent disability, failing Escobedo requirements.

Favours Applicant prevailed

Lack of adequate explanation led to rejection of apportionment and denial of defendant's claim.

From the decision · page 4Finally, defendant avers the WCJ improperly rejected the nonindustrial apportionment identified by both PTP Dr. Einbund and QME Dr. Tran. Defendant observes that both physicians reviewed relevant medical records and offered apportionment opinions based thereon. (Petition, at p. 7:6.) However, we agree with the WCJ's assessment that a review of the records is not the relevant standard with respect to whether an apportionment opinion constitutes substantial evidence. As we noted in our en banc decision in Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604 [2005 Cal. Wrk. Comp. LEXIS 71] (Appeals Bd. en banc) (Escobedo), the mere fact that a physician's report purports to address the issue of causation of permanent disability and makes an apportionment determination by finding the approximate respective percentages of industrial and non-industrial causation does not necessarily render the report substantial evidence upon which we may rely. Rather, the report must disclose familiarity with the concepts of apportionment, describe in detail the exact nature of the apportionable disability, and set forth the basis for the opinion that factors other than the industrial injury at issue caused permanent disability. (Id. at p. 621.) Our decision in Escobedo summed up the minimum requirements for an apportionment analysis as follows:

Found causation to multiple body parts from continuous trauma as a professional baseball coach; apportioned 10% of left knee disability to prior surgery and 90% to continuous trauma; apportioned 10% of right shoulder impairment to specific injury and 90% to continuous trauma; apportionment opinion did not adequately explain how nonindustrial factors caused permanent disability and was rejected.

Did not comply with Escobedo requirements for substantial apportionment evidence.

Reviewed reports of Dr. Einbund and opined on them; no substantial apportionment evidence found to support defendant's claim.

Reports reviewed but apportionment opinion of Dr. Einbund rejected for lack of adequate explanation.

From the decision · page 14Finally, even if Dr. Einbund's reports are considered consulting reports, they are still admissible and the requirement that either a PTP or QME must review the report and state whether he or she agrees or disagrees with the findings or opinions were met. Dr. Tran reviewed the reports of Dr. Einbund in his supplemental report and opined on them. (Defense Exhibit C, at p. 2-6).

Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604 (Appeals Bd. en banc)

A medical opinion on apportionment must be framed in terms of reasonable medical probability, not speculative, based on pertinent facts and adequate examination and history, and must set forth reasoning supporting its conclusions.

Applied to reject Dr. Einbund's apportionment opinion for lack of adequate explanation.

From the decision · page 4Finally, defendant avers the WCJ improperly rejected the nonindustrial apportionment identified by both PTP Dr. Einbund and QME Dr. Tran. Defendant observes that both physicians reviewed relevant medical records and offered apportionment opinions based thereon. (Petition, at p. 7:6.) However, we agree with the WCJ's assessment that a review of the records is not the relevant standard with respect to whether an apportionment opinion constitutes substantial evidence. As we noted in our en banc decision in Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604 [2005 Cal. Wrk. Comp. LEXIS 71] (Appeals Bd. en banc) (Escobedo), the mere fact that a physician's report purports to address the issue of causation of permanent disability and makes an apportionment determination by finding the approximate respective percentages of industrial and non-industrial causation does not necessarily render the report substantial evidence upon which we may rely. Rather, the report must disclose familiarity with the concepts of apportionment, describe in detail the exact nature of the apportionable disability, and set forth the basis for the opinion that factors other than the industrial injury at issue caused permanent disability. (Id. at p. 621.) Our decision in Escobedo summed up the minimum requirements for an apportionment analysis as follows:

Applicant's credible testimony at trial regarding actual job duties supporting occupational group determination.

From the decision · page 3more physically demanding than the beginning of his coaching career, and that applicant "found being an instructor more difficult than his time pitching in the Major League...." (Report, at p. 4.) After a careful review of the evidence concerning applicant's actual job duties, including the testimony of applicant which the WCJ determined to be fully credible, the WCJ found that applicant's job duties most closely aligned with occupational group number 493. We have given the WCJ's credibility determination(s) great weight because the WCJ had the opportunity to observe the demeanor of the witness(es). (Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312, 318-319 [35 Cal.Comp.Cases 500].) Based on our independent review of the evidentiary record, we conclude there is no evidence of considerable substantiality that would warrant rejecting the WCJ's credibility determination(s). (Id.)