Applicant sustained a prior lumbar spine permanent disability award of 18% based on Hormoz Zahiri's medical report in 2009.
Favours neutral
Established prior award relevant to apportionment analysis.
From the decision · page 6The injury of March 9, 2007, resulted in a Stipulation with Request for Award (case
ADJ3679303) for 18% permanent disability to the back. The 18% permanent disability was based
a 10% Whole Person Impairment based on the report of Hormoz Zahiri, M.D. using DRE method.
The stipulation indicates that the permanent disability in paragraph three is based on a 10% Whole
Person Impairment found by the treating physician Dr. Zahiri. The Award was approved on April
9, 2009.
Defendant failed to provide substantial medical evidence on overlap between current and prior lumbar spine injuries.
Favours Applicant prevailed
Failure to meet burden of proof on apportionment under Labor Code 4664(b).
From the decision · page 19The Arbitrator found even if the interrogatory and medical report are admissible the
medical report of the Agreed Medical Evaluator is not based on substantial medical evidence,
substantial medical evidence is required on the issue of overlap, the defendant has the burden of
proof on the issues of apportionment and overlap and defendant has not met their burden of proof
on apportionment, and therefore applicant is entitled to an Award without apportionment.
Anti-attribution clause in Labor Code 4663(e) precludes apportionment to prior awards for presumptively compensable injuries like this case.
Favours Applicant prevailed
Legal bar to apportionment in this case.
From the decision · page 73. The Arbitrator found that apportionment pursuant Labor Code § 4664(b) to a prior
permanent disability Award to the lumbar spine is precluded by the anti-attribution clause in Labor
Code § 4663(e), and therefore the applicant is entitled to an Award without apportionment.
Medical report of Dr. Hamid Mir on apportionment was a mere conclusion without explanation and not substantial evidence.
Favours Applicant prevailed
Did not support defendant's burden of proof on apportionment and overlap.
From the decision · page 19The Arbitrator finds that the medical report of Dr. Mir on the issues of apportionment and
overlap is not substantial evidence because it is a mere conclusion and not supported by reasoning
and does not contain an explanation of how and why there is overlap between the two injuries.
Defendant's failure to timely obtain a proper supplemental report based on substantial medical evidence contributed to failure to meet burden of proof on apportionment.
Favours Applicant prevailed
Procedural failure affecting outcome on apportionment.
From the decision · page 20If the defendant failed to meet their burden of proof on apportionment, this failure was a
result of their actions in not cross-examining the physician and/or making sure the report was
substantial evidence or by timely obtaining a proper supplemental report that is based on
substantial medical evidence and therefore their failure to meet their burden of proof does not
result in unjust judgment as it resulted from defendants failure.