ADJ6958667 · September 11, 2026

Defendant failed to meet burden of proving apportionment due to inconsistent applicant history and speculative medical opinions, so no apportionment was applied.

From the decision · page 8Given the inconsistent histories provided by the applicant, the court appropriately found that the apportionment opinions provided by Dr. Bertoldi and Dr. Sones were speculative and unsupported. Thus, Defendant did not meet its apportionment burden since the medical evidence Defendant relies upon is based on inconsistent applicant history that remains unresolved. Apportionment cannot be based on possibilities – it must be based on reasonable medical probability. Per Kopping, that is defendant's burden. [Kopping v. Workers' Comp. Appeals Bd. (2006) 142 Cal. App. 4th 1099, 1101.] Notwithstanding the foregoing, even though the reports of Dr. Bertoldi and Dr. Sones were not substantial on the issue of apportionment, the court still found them substantial with respect to findings on causation and impairment. In Republic Indemnity Co. of America v. WCAB (Winner) (2007) 72 CCC 1175, the WCJ properly relied on the valid portions of the medical reports even though neither physician's apportionment analysis was entirely convincing, demonstrating that a report may be unreliable on apportionment yet still substantial on other issues. Defendant failed to meet their burden of proof and as such the award was issued without apportionment.

No change in PD rating, so no adjustment to attorney's fee was warranted, rendering the issue moot.

From the decision · page 10C. There are no changes to the court's PD rating, which would warrant a change in the awarded attorney's fees. Because the Court's permanent disability rating remains unchanged, there is no basis to modify the attorney's fee awarded in the Findings and Award. Accordingly, no adjustment to the attorney's fee is warranted. Thus, the issue is rendered moot.

The 51% PD rating for sleep impairment was upheld because it was a straight AMA Guides rating based on hypothalamic-pituitary axis disorder, not requiring Almaraz/Guzman analysis.

From the decision · page 8B. Defendant contends Applicant is not entitled to 51 % PD for sleep because Dr. Bertoldi did not provide an Almaraz/Guzman analysis; however, Dr. Bertoldi found Applicant's sleep impairment was caused by a pituitary dysfunction. Thus, the 45% WPI utilizing Chapter 10 of the AMA Guides was Dr. Bertoldi's straight rating, and Almaraz/Guzman does not apply. Any award, order, or decision of the Appeals Board must be supported by substantial evidence. (Lab. Code Section 5952(d); Lamb v. Workmen's Comp. Appeals Bd. (1974) 11 Cal. 3d 274, 281 [39 Cal. Comp. Cases 310]; Garza v. Workmen's Compensation Appeals Board, Mcdonnell-Douglas Aircraft Company, et. al., (1970) 3 Cal. 3d 312, 317 935 Cal. Comp. Cases 16].); LeVesque v. Workmen's Comp. Appeals Bd. (1970) 1 Cal. 3d 627,635 [35 Cal. Comp. Cases 16].). In Blackledge v. Bank of America (2010) 75 CCC 613, the WCAB held that it is the physician's role to determine the injured worker's WPI under the AMA Guides and to support that

Applicant provided inconsistent histories regarding past alcohol use to evaluating physicians, preventing reliable apportionment analysis.

Favours Applicant prevailed

This inconsistency led the court to find the apportionment opinions speculative and unsupported, resulting in no apportionment being applied.

From the decision · page 8Given the inconsistent histories provided by the applicant, the court appropriately found that the apportionment opinions provided by Dr. Bertoldi and Dr. Sones were speculative and unsupported. Thus, Defendant did not meet its apportionment burden since the medical evidence Defendant relies upon is based on inconsistent applicant history that remains unresolved. Apportionment cannot be based on possibilities – it must be based on reasonable medical probability. Per Kopping, that is defendant's burden. [Kopping v. Workers' Comp. Appeals Bd. (2006) 142 Cal. App. 4th 1099, 1101.] Notwithstanding the foregoing, even though the reports of Dr. Bertoldi and Dr. Sones were not substantial on the issue of apportionment, the court still found them substantial with respect to findings on causation and impairment. In Republic Indemnity Co. of America v. WCAB (Winner) (2007) 72 CCC 1175, the WCJ properly relied on the valid portions of the medical reports even though neither physician's apportionment analysis was entirely convincing, demonstrating that a report may be unreliable on apportionment yet still substantial on other issues. Defendant failed to meet their burden of proof and as such the award was issued without apportionment.

Found 10% non-industrial apportionment for cognitive and sleep impairments based on applicant's history of alcohol abuse; provided a 45% WPI rating for sleep impairment due to hypothalamic-pituitary axis disorder using AMA Guides Table 10-1.

Opinion on apportionment was speculative due to inconsistent applicant history, but causation and impairment findings were substantial.

From the decision · page 6However, the medical opinions on this point were predicated upon Applicant's reported past history. As noted by Dr. Silverman, the record contains material inconsistencies regarding the history Applicant reported to each doctor in terms of her past alcohol use. Because Applicant did not testify at trial, and no supplemental medical reporting was obtained to reconcile the differing histories provided to the evaluating physicians, the Court was unable to assess Applicant's credibility or determine which factual history, if any, was accurate. Dr. Bertoldi finds non-industrial apportionment of 10% to Applicant's cognitive and sleep impairments based on Applicant's history of alcohol abuse. Specifically, in Dr. Bertoldi' s 12/10/14 report, he notes that: "Applicant's history includes over 20 years of ethyl alcohol (ETOH) abuse; however, she has been sober for 20 months as of 10/2/24." (Joint Exhibit Z3, page [2])

Found 10% non-industrial apportionment for psychiatric disability based on non-industrial stressors; opinion on apportionment was speculative due to inconsistent applicant history.

Opinion on apportionment was speculative due to inconsistent applicant history.

From the decision · page 7Dr. Sones comments briefly on Applicant's alcohol history and non-industrial stressors in his finding of 10% non-industrial apportionment of Applicant's psychiatric disability, in his 7/16/21 report. Specifically, Dr. Sones states: "Since the applicant was last examined on April 12, 2023, she has attended Alcoholics Anonymous meetings on two to five occasions, the last time in approximately 2016. She has not attended any other twelve-step or self-help programs since she was last examined." (Joint Exhibit Z15, page 5) "The applicant identifies some non-industrial stressors. In June of July 2010 the home she had purchased in 2007 went into foreclosure. In 2006 her maternal grandmother died. In 2008 she was having serious conflicts with a friend that led to court appearances for restraining orders. In July 2012 her personal vehicle was stolen.

Noted inconsistent applicant history regarding alcohol abuse; suggested possibility of 20% apportionment to non-industrial alcohol use if history confirmed; found fatigue and pain 100% industrial.

Inconsistent histories prevented confirmation of apportionment; court found apportionment opinions speculative and unsupported.

From the decision · page 7Dr. Silverman states in his 10/14/25 report that he was not aware of the alcohol abuse history referenced in Dr. Bertoldi's 12/10/24 and 4/6/25 reports; and accordingly, the parties need to confirm Applicant's past history in terms of apportionment. Specifically, Dr. Silverman states: "I had reviewed the QME report in psychiatry of Dr. Sones from July 2021 and prior reports, who had diagnosed her with major depressive disorder, a specific personality disorder from a psychiatric basis. The report of Dr. Bertoldi is new, who did a comprehensive neuropsychological evaluation report using a battery of 23

Labor Code Section 4663; Escobedo v. Marshalls (2005) 70 CCC 604

Defendant bears the burden of proving apportionment with substantial evidence under Labor Code Section 4663 and Escobedo v. Marshalls (2005).

Defendant failed to meet burden due to inconsistent applicant history and speculative medical opinions.

From the decision · page 6Pursuant to Labor Code Section 4663, Defendant bears the burden of proving apportionment with substantial evidence. Under Escobedo v. Marshalls (2005) 70 CCC 604, such burden is met if apportionment is supported by substantial medical evidence that explains how and why nonindustrial factors caused a percentage of the applicant's permanent disability. A medical opinion based on materially inaccurate or unresolved historical facts is not substantial evidence. In Pan Pacific Printing Press, Inc. v. WCAB (Whitt) (2016) 81 CCC 744 (writ denied), the QME report could not be relied upon for conclusions dependent on the inaccurate history that applicant had no prior back symptoms. Specifically, in the case of Whitt, "the WCAB explained in its decision that Dr. Broderick's conclusion that Applicant suffered a specific injury on 1/4/2012 was not substantial evidence because it was based on an incorrect history of no prior back injury." Here, Defendant contends that the court erred in declining to apply a 10% non-industrial apportionment based upon the opinions of Dr. Bertoldi and Dr. Sones, which opine that 10% of Applicant's permanent disability should be apportioned to non-industrial factors.

Labor Code Section 5952(d); Blackledge v. Bank of America (2010) 75 CCC 613; Almaraz/Guzman II

An award must be supported by substantial evidence; a straight AMA Guides rating does not require Almaraz/Guzman analysis unless deviating from the Guides.

The 51% PD rating for sleep impairment was upheld as a straight AMA Guides rating based on hypothalamic-pituitary axis disorder.

From the decision · page 8B. Defendant contends Applicant is not entitled to 51 % PD for sleep because Dr. Bertoldi did not provide an Almaraz/Guzman analysis; however, Dr. Bertoldi found Applicant's sleep impairment was caused by a pituitary dysfunction. Thus, the 45% WPI utilizing Chapter 10 of the AMA Guides was Dr. Bertoldi's straight rating, and Almaraz/Guzman does not apply. Any award, order, or decision of the Appeals Board must be supported by substantial evidence. (Lab. Code Section 5952(d); Lamb v. Workmen's Comp. Appeals Bd. (1974) 11 Cal. 3d 274, 281 [39 Cal. Comp. Cases 310]; Garza v. Workmen's Compensation Appeals Board, Mcdonnell-Douglas Aircraft Company, et. al., (1970) 3 Cal. 3d 312, 317 935 Cal. Comp. Cases 16].); LeVesque v. Workmen's Comp. Appeals Bd. (1970) 1 Cal. 3d 627,635 [35 Cal. Comp. Cases 16].). In Blackledge v. Bank of America (2010) 75 CCC 613, the WCAB held that it is the physician's role to determine the injured worker's WPI under the AMA Guides and to support that

Inconsistent applicant history regarding past alcohol use and non-industrial stressors, leading to speculative apportionment opinions by Dr. Bertoldi and Dr. Sones.

From the decision · page 8Given the inconsistent histories provided by the applicant, the court appropriately found that the apportionment opinions provided by Dr. Bertoldi and Dr. Sones were speculative and unsupported. Thus, Defendant did not meet its apportionment burden since the medical evidence Defendant relies upon is based on inconsistent applicant history that remains unresolved. Apportionment cannot be based on possibilities – it must be based on reasonable medical probability. Per Kopping, that is defendant's burden. [Kopping v. Workers' Comp. Appeals Bd. (2006) 142 Cal. App. 4th 1099, 1101.] Notwithstanding the foregoing, even though the reports of Dr. Bertoldi and Dr. Sones were not substantial on the issue of apportionment, the court still found them substantial with respect to findings on causation and impairment. In Republic Indemnity Co. of America v. WCAB (Winner) (2007) 72 CCC 1175, the WCJ properly relied on the valid portions of the medical reports even though neither physician's apportionment analysis was entirely convincing, demonstrating that a report may be unreliable on apportionment yet still substantial on other issues. Defendant failed to meet their burden of proof and as such the award was issued without apportionment.