California Workers’ Comp Board sides with state employee

Injuries led to permanent and total disability, workers' compensation judge says

BY Bernise Carolino 17 Jan 2023

The Workers' Compensation Appeals Board of California recently gave great weight to the credibility determination of a workers’ compensation judge who had the opportunity to observe the witnesses’ demeanor. The tribunal found no considerably substantial evidence that would justify rejecting this determination.

The California State Lottery Commission – the defendant in the case of Walton vs. California State Lottery Commission, legally uninsured, adjusted by State Compensation Insurance Fund – employed the applicant as a sales manager.

In October 2021, the workers’ compensation judge found that the applicant suffered the following industrial injuries during her employment: injury to her lower back and neck in March 1999, injury to her lower back and left foot in April 2003, injury to her lower back and left thumb in June 2003, and injury to her upper back, lower back, right knee, and psyche in November 2003.

The judge determined that the reports of the applicant’s vocational expert were substantial evidence and that the applicant’s injuries resulted in permanent and total disability, without apportionment, and led to a need for further medical treatment. The applicant was entitled to permanent disability benefits, the judge said.

The employer filed a petition for reconsideration. It made the following arguments:

The workers’ compensation judge should have apportioned permanent disability among injuries in line with section 4663 of California’s Labor Code
The medical reports of the neurological surgeon who served as the agreed medical evaluator should be considered substantial evidence on the issues of permanent disability and apportionment
The opinion of the applicant’s vocational expert was not substantial evidence

A panel of the Workers' Compensation Appeals Board of California affirmed the workers’ compensation judge’s decision that the applicant’s industrial injuries resulted in permanent and total disability, without apportionment.

The panel ruled that the judge correctly disallowed apportionment among injuries because the agreed medical evaluator’s reports did not amount to substantial evidence of apportionment under the standards provided in the case of Escobedo v. Marshalls (2005).

According to the panel, the medical evaluator’s reports:

assessed the issue of apportionment in a preliminary and speculative way
failed to address apportionment to nonindustrial factors and thus fell short of the requirements of section 4663 of the Labor Code
gave reasoning that was general in nature and that did not align with the specific percentages assigned to each injury
did not adjust the specific percentages when needed
provided invalid reasoning that the applicant could return to work after the first three injuries