ADJ8063851 · November 18, 2024

The Appeals Board affirmed the WCJ's calculation of average weekly wage considering breaks in employment and prior lower wages.

From the decision · page 2As explained below, we will grant reconsideration and amend the WCJ's decision to find applicant entitled to an unapportioned award of 77% permanent disability. Although we agree that there were no improper ex parte communications, after reviewing the record, we find that there is no substantial medical evidence of apportionment. We will affirm the WCJ's findings regarding applicant's average weekly wage.

The Appeals Board found no substantial medical evidence supporting apportionment and increased permanent disability to 77%.

From the decision · page 2As explained below, we will grant reconsideration and amend the WCJ's decision to find applicant entitled to an unapportioned award of 77% permanent disability. Although we agree that there were no improper ex parte communications, after reviewing the record, we find that there is no substantial medical evidence of apportionment. We will affirm the WCJ's findings regarding applicant's average weekly wage.

No substantial medical evidence of apportionment found in Dr. Echeverria's and Dr. Sofia's reports and testimony.

Favours Applicant prevailed

Led to rejection of apportionment and increase of permanent disability to 77%.

From the decision · page 2As explained below, we will grant reconsideration and amend the WCJ's decision to find applicant entitled to an unapportioned award of 77% permanent disability. Although we agree that there were no improper ex parte communications, after reviewing the record, we find that there is no substantial medical evidence of apportionment. We will affirm the WCJ's findings regarding applicant's average weekly wage.

Applicant testified to breaks between jobs and inconsistent earnings, supporting defendant's argument on average weekly wage calculation.

Favours Defendant prevailed

Supported affirming the WCJ's average weekly wage calculation.

From the decision · page 4He testified that there may be time when a job ended before another started so they would have time to go home and regroup, which would substantiate Defendants' argument that the Applicant's work had gaps in time. He testified that occasionally there could be a week or two, or less between jobs. the applicant also testified that he had worked previously for Tradesman but if they did not have work then he would go to another company to find work. the applicant testified that he was more dedicated to Tradesmen in the more current employment, during the cumulative trauma injury.

Opined 10% psychiatric disability apportionment to cannabis use and 25% to risk factors, but did not explain how these contributed to impairment; deposition testimony found not substantial evidence for apportionment.

The reports and testimony do not describe in detail how non-industrial factors contribute to permanent impairment, failing to meet substantial evidence standards.

From the decision · page 6with peers or co-workers)." (2005 Schedule for Rating Permanent Disabilities at p. 1-14.) In the same report, Dr. Echeverria writes, "In my opinion 10% of the psychiatric disability is apportioned to his ongoing cannabis use, which can affect psychiatric symptoms. Therefore 90% of the patient's permanent disability is apportioned to industrial causes and 10% is apportioned to non- industrial causes." (April 10, 2019 report at p. 44.)

Attributed 10% of back disability to age-related degenerative disc disease without detailed explanation; opinion rejected as not substantial evidence for apportionment.

The opinion was conclusory and did not describe how non-industrial factors caused permanent disability, lacking substantial evidence.

From the decision · page 6Similarly, panel qualified evaluator orthopedist Peter J. Sofia, M.D.'s entire discussion of apportionment with regard to applicant's back was, "I believe the back is primarily industrial, 90% but 10% would be age-related degenerative disc disease that would have accrued since his youth going forward." (February 5, 2019 report at p. 6.)

Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604

Substantial medical evidence requires detailed reasoning behind apportionment opinions, including causal explanations for non-industrial factors contributing to disability.

Applied to reject apportionment opinions lacking detailed explanation.

From the decision · page 6While it is now well established that one may properly apportion to pathology and asymptomatic prior conditions (see, e.g. Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 617 [Appeals Bd. en banc]), an apportionment opinion must still constitute substantial medical evidence. As we explained in Escobedo:

Labor Code section 4453(c)

Labor Code section 4453(c) governs calculation of average weekly earnings considering employment breaks and irregular earnings.

Applied to affirm WCJ's average weekly wage calculation.

From the decision · page 3Turning to the merits of defendant's Petition, Labor Code section 4453(c), which governs the calculation of average weekly earnings, states in pertinent part that:

Applicant's testimony about breaks between jobs and inconsistent earnings

From the decision · page 4He testified that there may be time when a job ended before another started so they would have time to go home and regroup, which would substantiate Defendants' argument that the Applicant's work had gaps in time. He testified that occasionally there could be a week or two, or less between jobs. the applicant also testified that he had worked previously for Tradesman but if they did not have work then he would go to another company to find work. the applicant testified that he was more dedicated to Tradesmen in the more current employment, during the cumulative trauma injury.