ADJ9910849 · May 14, 2024

The QME's apportionment analysis was found not to constitute substantial medical evidence because it failed to adequately explain the basis for apportionment percentages and the causal relationship of nonindustrial factors to disability. Therefore, the applicant was entitled to an unapportioned award based on the scheduled rating, which was not rebutted by vocational expert evidence.

From the decision · page 5Here, orthopedic QME Dr. Khasigian has identified permanent disability arising out of the injury to applicant's bilateral shoulders. With respect to the left shoulder, the QME has indicated applicant's disability is not subject to apportionment. However, with respect to the right shoulder, the QME has opined:

The vocational expert's opinion was found to rely on legally impermissible theories of vocational apportionment and facts not in the evidentiary record, thus it did not rebut the scheduled rating.

The QME's apportionment opinion lacked detailed explanation and causal linkage for nonindustrial factors causing 50% of disability.

Favours Applicant prevailed

This failure meant the apportionment opinion was not substantial evidence, entitling applicant to an unapportioned award.

From the decision · page 5Here, orthopedic QME Dr. Khasigian has identified permanent disability arising out of the injury to applicant's bilateral shoulders. With respect to the left shoulder, the QME has indicated applicant's disability is not subject to apportionment. However, with respect to the right shoulder, the QME has opined:

Vocational expert's opinion relied on legally impermissible theories and facts not in the record, failing to rebut scheduled rating.

Favours Defendant prevailed

This supported affirming the scheduled rating and denying applicant's claim for higher permanent disability based on vocational evidence.

Identified 23% permanent disability to bilateral shoulders with 50% apportionment to nonindustrial factors for right shoulder; however, apportionment analysis lacked adequate explanation and was rejected as substantial evidence.

The QME's apportionment opinion did not adequately explain the basis for the 50% apportionment to nonindustrial factors and failed to identify specific causal mechanisms, thus was not substantial evidence.

From the decision · page 5Here, orthopedic QME Dr. Khasigian has identified permanent disability arising out of the injury to applicant's bilateral shoulders. With respect to the left shoulder, the QME has indicated applicant's disability is not subject to apportionment. However, with respect to the right shoulder, the QME has opined:

Labor Code section 4663

Apportionment of permanent disability must be based on causation and supported by detailed medical explanation.

The QME's apportionment opinion was evaluated against this standard and found lacking in detailed explanation and causal linkage.

From the decision · page 3We begin our discussion with the issue of apportionment. Labor Code2 section 4663 provides, in relevant part, that apportionment of permanent disability shall be based on causation. (Lab. Code, § 4663(a).) The statute further requires the evaluating physician to "make an apportionment determination by finding what approximate percentage of the permanent disability was caused by the direct result of injury arising out of and occurring in the course of employment and what approximate percentage of the permanent disability was caused by other factors both before and subsequent to the industrial injury, including prior industrial injuries." (Lab. Code, § 4663(c).) Pursuant to section 4663(c) and section 5705, applicant has the burden of establishing the approximate percentage of permanent disability directly caused by the industrial injury, while defendant has the burden of establishing the approximate percentage of permanent disability

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

A physician's apportionment opinion must be framed in reasonable medical probability, not speculative, and based on adequate examination and history.

The QME's opinion was found not to meet these criteria and thus was not substantial evidence for apportionment.

From the decision · page 4caused by factors other than the industrial injury. (Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 612-613 [2005 Cal. Wrk. Comp. LEXIS 71] (Appeals Board en banc) (Escobedo).)

Nunes v. State of California, Dept. of Motor Vehicles (2023) 88 Cal.Comp.Cases 894 (Appeals Board en banc)

In absence of valid legal apportionment, applicant is entitled to an unapportioned award.

The Board granted an unapportioned award due to lack of substantial evidence for apportionment.

From the decision · page 6by the QME do not constitute substantial medical evidence and that applicant is entitled to an unapportioned award. (Nunes II, supra, 88 Cal.Comp.Cases 894, 898 ["It is axiomatic that in those instances where the WCJ determines that no evaluating physician has identified valid legal apportionment, applicant is entitled to an unapportioned award."].)

Vocational expert's opinion relied on legally impermissible theories of vocational apportionment and facts not in the record

Applicant's credible testimony of working as Lyft driver and ability to secure self-employment

From the decision · page 7Applicant credibly testified that she has worked as a Lyft driver since she stopped working for Employer and that she intends to resume doing this type of work. (MOH-SOE 2-8-2024 Page 6.) Based on VRE Diaz's improper application of Kite and use of invalid vocational apportionment theories along with his determination that Applicant is amenable to vocational rehabilitation combined with the VRE reporting of VRE Sartoris and Applicant's ability to secure self-employment it is found Applicant did not rebut by a preponderance of the evidence the rating established by the PDRS.