Apportionment and Escobedo

Although employers work diligently to reduce the risk of injury to their employees, injuries are still a reality in the modern workplace. Most of these injuries will not result in a complete and permanent disability to the employee, and so he or she will return to work in some capacity. In some unfortunate circumstances, the employee may later sustain yet another work-related injury. He or she would then begin the workers’ compensation process again for the new injury. With the advent of many modern medical technologies, it has become increasingly possible for medical professionals to determine what portion of the worker’s disability is attributable to the current work-related injury and what portion of the disability is attributable to the prior work-related injury. This process is called “apportionment,” and is a major source of litigation in the workers’ compensation field. In 2005, the Workers’ Compensation Appeals Board issued an opinion in a case called Escobedo v. Marshalls which provides guidance on how to apply apportionment statutes found in Labor Code section 4663.
In that case, the plaintiff sustained an injury to her left knee while working at a Marshalls clothing store. The plaintiff also developed problems in that knee as a result. Although the plaintiff did not have knee problems before the injury, her doctor had diagnosed her with arthritis about ten years before the injury. The plaintiff also developed some problems in her right knee, which a QME determined was a direct result of the injury to her left knee. The doctor determined that 50% of her disability was caused by the plaintiff’s pre-existing arthritis. The WCAB pointed out that the plaintiff has the burden at trial to prove the percentage of permanent disability directly caused by the work-related injury, while it is the employer’s burden to prove the percentage of disability caused by other factors. The court also went on to state that even if a medical report addresses the issue of causation and does make an apportionment determination, it still has to constitute substantial evidence if it is to be relied upon in making that determination. “Substantial medical evidence” means that the doctor’s opinion must:
1. Be within reasonable medical probability;
2. Not be speculative;
3. Be based in relevant facts;
4. Be based on an adequate patient history and examination; and
5. Include the reasoning in support of the doctor’s apportionment conclusion.
Since this opinion was entered, there have been many other cases discussing apportionment and the impact of the holding in Escobedo. We have experience in helping our clients understand their responsibilities and rights when it comes to apportionment of an employee’s work-related injury. Call us today at (714) 516-8188 to talk about your business.

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