ADJ15295325 · June 15, 2026

The Board found that the applicant did not rebut the scheduled rating but that the apportionment evidence by Dr. Karvelas was not substantial medical evidence, thus granting an unapportioned 48% permanent disability award.

From the decision · page 1Applicant seeks reconsideration of a workers' compensation administrative law judge's (WCJ) Findings of Fact and Award of March 12, 2026, wherein it was found that while employed as a correctional officer during a cumulative period ending on June 19, 2021, applicant sustained industrial injury to the neck causing permanent disability of 40% after apportionment. In finding permanent disability of 40%, it was determined that applicant did not prove that she was not amenable to vocational rehabilitation and did not prove that she was unable to compete in the open labor market. Additionally, it was found that, pursuant to the apportionment determination of qualified medical evaluator, physical medicine specialist Brian Karvelas, M.D., that 20 percent of applicant's permanent disability was caused by factors other than the industrial injury. Therefore, applicant's overall 48% permanent disability was apportioned, and it was found that applicant was entitled to an award of 40% compensable permanent disability.

The Board affirmed the WCJ's finding that the applicant was not precluded from vocational rehabilitation and was not completely shut out of the labor market, thus did not rebut the scheduled rating.

From the decision · page 7However, we affirm the WCJ's finding that applicant was not precluded from vocational rehabilitation and that she was not completely shut out of the labor market for the reasons stated in the Report, which we quote below:

Dr. Karvelas did not explain how nonindustrial pathology contributed to the impairment rating.

Favours Applicant prevailed

This lack of explanation led the Board to reject his apportionment opinion as not substantial medical evidence.

From the decision · page 7Karvelas does not explain how the nonindustrial pathology is contributing to applicant's impairment rating. It is insufficient to mention that pathology affects the same area of the body of the industrial injury or that a certain percentage of a generalized condition is attributable to non- industrial factors. In order to constitute valid apportionment, a reporting physician must explain how these factors are contributing to permanent disability. Dr. Karvelas does not do so here. Additionally, while we acknowledge that determining the level of apportionment is not an exact science and "[a]rriving at a decision on the exact degree of disability is a difficult task under the most favorable circumstances. It necessarily involves some measure of conjecture and compromise...." (Liberty Mutual Ins. Co. v. Industrial Acc. Com. (Serafin) (1948) 33 Cal.2d 89, 93 [13 Cal.Comp.Cases 267]), there must be some attempt at explaining the percentages of apportionment decided upon, not just the existence of non-industrial factors. Here, Dr. Karvelas does not explain how he arrived at 20% non-industrial apportionment. For these reasons we find that Dr. Karvelas's apportionment discussion did not constitute substantial medical evidence, and that defendant did not carry its burden of proving apportionment. We therefore find applicant entitled to an unapportioned award of 48% permanent disability.

Applicant was not precluded from vocational rehabilitation and was not completely shut out of the labor market.

Favours Defendant prevailed

This supported the Board's affirmation of the scheduled rating and rejection of applicant's claim to rebut it.

From the decision · page 7However, we affirm the WCJ's finding that applicant was not precluded from vocational rehabilitation and that she was not completely shut out of the labor market for the reasons stated in the Report, which we quote below:

Recommended 20% apportionment of disability to pre-existing degenerative spinal disease and 80% to cumulative trauma injury; however, the Board found his apportionment opinion lacked substantial medical evidence.

The Board found Dr. Karvelas did not explain how nonindustrial pathology contributed to the impairment rating, making his apportionment opinion insufficient.

From the decision · page 3medical evaluator, physical medicine specialist Brian Karvelas, M.D. In his November 19, 2022,

From the decision · page 11e. The employer has furnished all medical treatment. The primary treating physician is Dr. Paul Nkadi.

Labor Code section 5909

Labor Code section 5909 - Appeals Board must act on petition for reconsideration within 60 days of transmission

The Board acted timely on the petition for reconsideration.

From the decision · page 2Preliminarily, we note that former Labor Code section 5909 provided that a petition for reconsideration was deemed denied unless the Appeals Board acted on the petition within 60 days from the date of filing. (Lab. Code, § 5909.) Effective July 2, 2024, Labor Code section 5909 was amended to state in relevant part that:

Escobedo v. San Luis Coastal Unified Sch. Dist. (2021)

Substantial medical evidence standard for apportionment requires explanation of how nonindustrial factors contribute to disability

Dr. Karvelas's apportionment opinion was rejected for lack of substantial medical evidence.

From the decision · page 6[A] medical report is not substantial evidence unless it sets forth the reasoning behind the physician's opinion, not merely his or her conclusions. [Citations.]

LeBoeuf v. WCAB (1983)

Permanent disability rating should reflect diminished ability to compete in the open labor market

The Board affirmed the WCJ's finding that applicant was not precluded from vocational rehabilitation.

From the decision · page 8The Court has held that "permanent disability rating should reflect as accurately as possible an injured employee's diminished ability to compete in the open labor market." LeBoeuf v. WCAB (1983) 48 CCC 587, 597. Further, "The fact that a worker has been precluded from vocational retraining is a significant factor to be taken into account in evaluating his or her potential employability. A prior permanent disability rating and award which fails to reflect that fact is inequitable." Id. at 597

Applicant's testimony and vocational expert opinions on ability to work and vocational rehabilitation

From the decision · page 8Applicant argues that due to the fact that it has been over four years since the work injury and the Applicant has not been able to return to gainful employment and the fact that the Applicant was found to be unable to return to her previous employment, the Court should agree with Applicant's vocational expert, Enrique Vega, that the Applicant has lost 100% of her earning capacity as a result of the work injury and is 100% permanently totally disabled on a vocational basis. Applicant further argues that due to her inability to compete in the open labor market or to be retrained to find and sustain suitable meaningful employment, she has rebutted the AMA Guides rating in this case.

Medical records showing pre-existing degenerative spinal disease

From the decision · page 5Regarding apportionment of disability to causation, there is no medical evidence for a pre-existing clinical condition, injury or disability, including a prior PDR, relative to the cervical spine or upper extremities of which I am presently aware. Neither is there evidence for a specific subsequent injury to the involved body parts. There is evidence on pre-existing imaging studies from 2012 for cervical spondylosis reported in the medical record as discussed above (see review of Dr. Neubuerger's February 8, 2022 consultation report); although, the applicant states that these studies were obtained in regard to a mass on the back of her neck that was later excised and did not involve her cervical spine. Nevertheless, based on the medical record it appears that there were significant pre-existing degenerative spondylotic changes in the cervical spine that likely