APPORTIONMENT - Apportionment to prior nonindustrial injury–Labor Code §4663–A medical opinion must disclose familiarity with the concepts of apportionment, describe in detail the exact nature of the apportionable disability and set forth the basis for the opinion, so that the Appeals Board can determine whether the physician is properly apportioning under correct legal principles. (See E.L. Yeager Construction v. Workers' Comp. Appeals Bd. (Gatten) (2007) 142 Cal.App.4th 922, 8 WCAB Rptr. 10,362.) Dean Mielke v. Workers' Compensation Appeals Board, East Bay Tire Company 10 WCAB Rptr. 10,145 [Writ Denied]

APPORTIONMENT - Pre-existing asymptomatic psychiatric conditions–Labor Code §4663–A medical opinion to be substantial medical evidence must disclose familiarity with the concepts of apportionment, describe in detail the exact nature of the apportionable disability and set forth the basis for the opinion so that the WCJ can determine whether the physician is properly apportioning under the correct legal principles. (See E.L.Yeager v. Workers' Comp. Appeals Bd. (Gatten) (2006) 145 Cal.App.4th 922. 8 WCAB Rptr. 10,362.) Dina De Garibaldo v. Workers' Compensation Appeals Board, Ramada Inn 10 WCAB Rptr. 10,142 [Writ Denied]

APPORTIONMENT - Labor Code §4663(e)–Should the amendment to Labor Code §4663 be applied retroactively to dates of injury prior to the amendment. Specifically, should Labor Code §3212.10 be interpreted to have a non-attribution clause that would eliminate any apportionment to pre-existing causes and if so, should it be applied to dates of injury prior to January 1, 2007? Department of Corrections and Rehabilitation v. Workers' Compensation Appeals Board (James Alexander) 10 WCAB Rptr. 10,092 [Writ Granted]

APPORTIONMENT - Substantial evidence for determining apportionment–Labor Code §4663–A medical report is not substantial evidence unless it sets forth the physician's reasoning for the opinion on apportionment and may not be expressed as merely a conclusion. The physician must explain the condition and why it is causing permanent disability at the time of the evaluation. The physician must explain how and why it is responsible for the percentage set forth in the report. (See Escobedo v. Marshalls (2005) 7 WCAB Rptr. 10,143.) [In this case, the AME identified preexisting arthritis as the basis of the apportionment without explaining how it caused part of the present disability. The AME did not identify any evidence in the medical records that the arthritis was problematic or symptomatic prior to the industrial injury.) Larkspur Elementary School District v. Workers' Compensation Appeals Board (Catherine Latta) 10 WCAB Rptr. 10,101 [Writ Denied]

APPORTIONMENT - Apportionment for prior disability–Labor Code §4664–The percentage of a previous award of permanent disability must be subtracted from a newer award of permanent disability. (See Brodie v. Workers' Comp. Appeals Bd. (2007) 40 Cal.4th 1313, 9 WCAB Rptr. 10,142.) Browning-Ferris Industries v. Workers' Compensation Appeals Board (Jobe Salter) 10 WCAB Rptr. 10,071 ___Cal.App.4th___

APPORTIONMENT - Labor Code §4663-Because the language of Labor Code §4663 does not limit the types of "other factors" that may be considered as a non-industrial cause of permanent disability, then the "other factors" may include disability that was apportionable prior to SB899, i.e., the natural progression of an non-industrial condition or disease, a preexisting disability, or a post-injury disabling event. In addition, the "other factors" now may include pathology, asymptomatic prior conditions, and retroactive prophylactic work preclusions, provided there is substantial medical evidence establishing that these other factors caused disability. (See Escobedo v. Marshalls (2005) 7 WCAB Rptr. 10,143 [en banc].) Anita Pixley v. Workers' Comp. Appeals Bd., Associated Home Health Nurses 10 WCAB Rptr. 10,081 [Writ Denied]

APPORTIONMENT - Labor Code §4663–The absence of a pre-existing disability or need for treatment is not relevant to apportionment pursuant to Labor Code §4664. [In this case, in the 10-year period prior to the industrial injury, the injured worker had only occasional back pain and received treatment from a chiropractor two or three times.] (See E. L.Yeager Construction v. Workers' Comp. Appeals Bd. (Gatten) (2006) 145 Cal.App.4th 922, 8 WCAB Rptr. 10,362.) Ronald Pini v. Workers' Compensation Appeals Board, Concord Disposal 10 WCAB Rptr. 10,032 [Writ Denied]

APPORTIONMENT- Psychiatric injury–Labor Code §4663–Apportionment of permanent disability shall be based on causation, which refers to causation of permanent disability, not causation of injury, and analysis of causal factors of permanent disability for purposes of apportionment may be different from analysis of causal factors of injury. (See Escobedo v. Marshalls ( ) WCAB Rptr. [en banc].) [In this case, the agreed medical examiner concluded that the actual events of employment were the predominant cause of applicant's injury and added that only 37.5% of the overall disability was industrially related. The phrase "predominant cause" means that the actual events of employment must reach 51% before an industrial psychiatric injury can be found.]Alfred Conhagen, Inc. v. Workers' Compensation Appeals Board (Phillip Bridges) 10 WCAB Rptr. 10,033 [Writ Denied]

APPORTIONMENT - Labor Code §4664–Prior disability or evidence of modified work is no longer a prerequisite to apportionment. Degenerative disease can be asymptomatic and still be apportionable under the new apportionment rules. (See E.L. Yeager Construction v. Workers' Comp. Appeals Bd. (Gatten) (2006) 145 Cal.App.4th 922, 8 WCAB Rptr. 10,362.) Guy Politz v. Workers' Compensation Appeals Board, Zenith Environmental Pest Control 10 WCAB Rptr. 10,013 [Writ Denied]

APPORTIONMENT - Labor Code §4663–Apportionment to age, per se, runs afoul of the state antidiscrimination law. [In this case the applicant contended it was error to apportion disability to age and preexisting osteoporosis, but the Court of Appeal found that the specific apportionment finding was not supported by substantial evidence and returned the matter to the trial level for further proceedings and evidentiary findings.] Lois Vaira v. Workers' Compensation Appeals Board, California Travel and tourism Commission 9 WCAB Rptr. 10,371 ___Cal.App.4th___

APPORTIONMENT - Overlapping disabilities–The employer has the burden of proving the extent of overlap between prior and current disabilities. (See Kopping v. Workers' Comp. Appeals Bd. (2006) 142 Cal.App.4th 1099, 8 WCAB Rptr. 10,283.) Francis Chavez v. Workers' Compensation Appeals Board, Lucky Stores 9 WCAB Rptr. 10,378[Writ Granted]

APPORTIONMENT - The new apportionment rules allow apportionment that may include not only disability that could have been apportioned prior to SB 899, but it also may include disability that formerly could not have been apportioned such as pathology, asymptomatic prior conditions, and prophylactic work restrictions provided there is substantial medical evidence establishing that these factors have caused permanent disability. (See Escobedo v. Marshalls (2005) 7WCAB Rptr. 10,143.) Guy Warner v. Workers' Compensation Appeals Board, Hertz Corporation 9 WCAB Rptr. 10,367[Writ Denied]

APPORTIONMENT - For a post-SB 899 apportionment opinion to be valid or to constitute substantial evidence, it must be framed in terms of reasonable medical probability, must not be speculative, must be based on pertinent facts and on an adequate examination and history, and must set forth reasoning in support of its conclusions. (See E.L. Yeager Construction v. Workers' Comp. Appeals Bd. (Gatten) (2006)145 Cal.App. 4th 922, 8 WCAB Rptr. 10,362).) Darlene Wilson-Marshall v. Workers' Compensation Appeals Board, Department of Corrections 9 WCAB Rptr. 10,366 [Writ Denied]

APPORTIONMENT - Burden of proof–Labor Code §4663–The employer has the burden of establishing the approximate percentage of permanent disability caused by factors other than the industrial injury. (See Escobedo v. Marshalls (2005) 7 WCAB Rptr. 10,143.) Advo v. Workers' Compensation Appeals Board (Adrianne Winter) 9 WCAB Rptr. 10,334 [Writ Denied]

APPORTIONMENT - Burden of proof–Labor Code §4663(c)–The defendant has the burden of establishing the approximate percentage of permanent disability caused by other factors other than the industrial injury. (See Escobedo v. Marshalls and CNA Ins. Co.. (2005) 7 WCAB Rptr. 10,143 [en banc].) University of California, Berkeley v. Workers' Compensation Appeals Board (Edna Barraza) 9 WCAB Rptr. 10,319 [Writ Denied]

APPORTIONMENT - Labor Code §4663–For a post-SB899 apportionment opinion to be valid or to constitute substantial evidence, it must be formed in terms of reasonable medical probability, must not be speculative, must be based on pertinent facts and on adequate examination and history, and must set forth reasoning in support of its conclusions. (See E.L. Yeager Construction v. Workers' Comp. Appeals Bd. (Gatten) (2006) 145 Cal.App.4th 922, 8 WCAB Rptr. 10,362.) Darlene Wilson-Marshall v. Workers' Compensation Appeals Board, California Department of Corrections and Rehabilitation 9 WCAB Rptr. 10,319 [Writ Denied]

APPORTIONMENT - Apportionment to preexisting disease–Is apportionment to preexisting osteoporosis, which is an age- and gender-related condition, discriminatory in violation of the law? Dianne Fitzpatrick v. Workers' Compensation Appeals Board, Montessori of Placerville 9 WCAB Rptr. 10,244 246 [Writ Granted]

APPORTIONMENT - Prior permanent disability–Labor Code §4664(b) creates a conclusive presumption of the continued existence of a prior permanent disability when the claimant received an award of permanent disability based on that disability, thereby precluding the claimant from proving medical rehabilitation from the prior disability. (See Kopping v. Workers' Comp. Appeals Bd. (2006) 147 Cal.App.4th 1099, 8 WCAB Rptr. 10,283.) Ralphs Grocery Company v. Workers' Compensation Appeals Board (Ramon Esquivel) 9 WCAB Rptr. 10,230 [Writ Denied]

APPORTIONMENT - Labor Code §4663 as amended by SB 899 must be applied to all cases not yet final at the time the legislative enactment on April 19, 2004, regardless of the date of injury. (See E&J Gallo Winery v. Workers' Comp. Appeals Bd. (Dykes) (2005) 134 Cal.App.4th 1536, 8 WCAB Rptr. 10,004.) Moreover, Labor Code §4663 must also be applied to the issue of "increased" permanent disability alleged in any petition to reopen that was pending on April 19, 2004, regardless of the date of injury. (See Vargas v. Atascadero State Hospital (2006) 8 WCAB Rptr. 10,151.) [Writ Denied]

APPORTIONMENT - Labor Code §4663– Apportionment under the new rules shall be based on causation and, in addition, apportionment may now be attributed to pathology, asymptomatic prior conditions, and retroactive prophylactic work preclusions, provided there is substantial medical evidence that these other factors have caused permanent disability. (See Yeager Construction v. Workers' Comp. Appeals Bd. (Gatten) (2006) 145 Cal.App.4th 922, 8 WCAB Rptr. 10,362.) [In this case, the WCJ failed to find apportionment due to applicant's obesity, which could have caused disability separate and apart from her industrial injury.] Annette Morris v. Workers' Compensation Appeals Board, California Department of Corrections & Rehabilitation 9 WCAB Rptr. 10,229 [Writ Denied]

APPORTIONMENT - When an injured employee received a prior disability award, apportionment of the amount of permanent disability indemnity is calculated by determining the overall percentage of permanent disability and then subtracting the percentage of permanent disability caused by other factors, including the prior disability award. Brodie v. Workers' Compensation Appeals Board, Contra Costa County Fire Protection District 40 Cal.4th 1313,9 WCAB Rptr. 10,142 . City of Oakland v. Workers' Compensation Appeals Board (Steven Baptista) 9 WCAB Rptr. 10,217 ___Cal.App.4th___

APPORTIONMENT - Labor Code §4664–An order approving a compromise and release agreement, without more, is not a "prior award of permanent disability" within the meaning of Labor Code §4664(b). (See Pasquotto v. Hayward Lumber (2006) 8 WCAB Rptr. 10,086 [en banc].) [Writ Denied]

APPORTIONMENT - Labor Code §4664–Where there is no prior award of permanent disability within the meaning of Labor Code §4664(b), the medical reports and other evidence relating to a prior industrial injury that was settled by a compromise and release still may be relevant in determining whether any of the permanent disability found after a subsequent industrial injury was caused by "other factors" under Labor Code §4663. (See Escobedo v. Marshals (2005) 7 WCAB Rptr. 10,143 [en banc].) [Writ Denied]

APPORTIONMENT - Labor Code §4663–Is apportionment to risk factors of age, such as preexisting disease brought on by the aging process, proper under the new apportionment provisions? Lois Vaira v. Workers' Compensation Appeals Board, California Travel and Tourism Commission 9 WCAB Rptr. 10,175 [Writ Granted]

APPORTIONMENT - When an injured employee received a prior disability award while working for a different employer, apportionment of the amount of permanent disability indemnity is calculated by determining the overall percentage of permanent disability and then subtracting the percentage of permanent disability caused by other factors, including the prior disability award. Kenneth Dee Welcher v. Workers' Compensation Appeals Board, Hat Creek Constructors and State Compensation Insurance Fund 9 WCAB Rptr.10,142 ___Cal.App.4th___ Stan Brodie v. Workers' Compensation Appeals Board, Contra Costa County Fire Protection District 9 WCAB Rptr. 10,142 ___Cal.App.4th___ Aurora Lopez v. Workers' Compensation Appeals Board, Department of Social Services 9 WCAB Rptr. 10,143 ___Cal.App.4th___ Henry L. Williams v. Workers' Compensation Appeals Board, United Airlines 9 WCAB Rptr.10,143 ___Cal.App.4th___ Jack Strong v. Workers' Compensation Appeals Board, City and County of San Francisco 9 WCAB Rptr. 10,144 ___Cal.App.4th___

APPORTIONMENT - Labor Code §4663–Apportionment of disability due to underlying nonindustrial disease "lighted up" by industrial injury–For purposes of apportioning disability, a distinction must be made between causation of injury and causation of disability. Under the old apportionment rules, it was possible to apportion to an underlying disease lighted up by a work injury, if the natural progression of that disease would have resulted in disability at some point in time absent the work injury. Under the new apportionment rules, it is possible to apportion to "other causes" of disability, such as an asymptomatic nonindustrial disability emerging after a work injury to cause both industrial and nonindustrial disability. (See Escobedo v. Marshalls (2005) 7 WCAB Rptr. 10,143 [en banc].) Diane Wallace v. Workers' Compensation Appeals Board, Nugget Market, Inc. 9 WCAB Rptr. 10,102 [Writ Denied]

APPORTIONMENT - Apportionment to nonindustrial factors-Labor Code §4663-Apportionment based on nonindustrial factors must be sufficiently described by the medical evidence. (See E.&J. Gallo v. Workers Comp. Appeals Bd. (Dykes) (2005) 134 Cal.App.4th 1536, 8 WCAB Rptr. 10,006.) The medical evidence must show that the injured worker suffered from an underlying pathology prior to the industrial injury. (See E.L. Yeager Construction v. Workers' Comp. Appeals Bd. (Gatten) 145 Cal.App.4th 922, 8 WCAB Rptr. 10,362.) [In this case, the employer failed to prove that the injured worker suffered from an apportionable underlying disease or condition that could be attributable to her disability.] Sierra Bible Church v. Workers' Compensation Appeals Board (Thresia Clink) 9 WCAB Rptr. 10,055 ___Cal.App.4th___

APPORTIONMENT - Labor Code §4663 enacted by SB899 provides that apportionment of permanent disability shall be based on causation and requires an evaluating physician to determine what approximate percentage of the permanent disability was caused by the direct result of the injury arising out of and in the course of employment and what approximate percentage of the permanent disability was caused by other factors before and subsequent to the industrial injury. [In this case, the worker had a pre-existing nonindustrial bone tumor with weakening of the body of L1 leading to a fracture as he extended his spine from a flexed position. The treating physician opined that because of the bone destruction caused by the tumor, a fracture was destined to occur within weeks of the injury and apportioned 90% of the current disability to the pathologic tumor and 10% to the work incident.] Jose Martinez v. Workers' Compensation Appeals Board, Los Angeles Unified School District 9 WCAB Rptr. 10,065 [Writ Denied]

APPORTIONMENT - Labor Code §4663–Apportionment to pathology, asymptomatic prior conditions and retroactive prophylactic work preclusions allowed under the newly enacted Labor Code §4663. E.L. Yeager Construction v. Workers' Compensation Appeals Board (Dennis Gatten) 8 WCAB Rptr. 10,362 ___Cal.App.4th___

APPORTIONMENT - Application of new apportionment provisions–Labor Code §4663–Where a permanent disability is apportioned to a preexisting disability, the net compensable percentage of permanent disability is derived by subtracting the noncompensable percentage of permanent disability from the overall percentage of permanent disability. Fortunata Mary Davis v. Workers' Compensation Appeals Board, Allied Security 8 WCAB Rptr. 10,365 Moises Torres v. Workers' Compensation Appeals Board, Williams Tank Lines 8 WCAB Rptr. 10,365 ___Cal.App.4th___

APPORTIONMENT - Labor Code §4664–Overlapping disabilities–If the employer meets its burden of proving the existence of a prior permanent disability award relating to the same region of the body, and if the applicant meets his or her burden of establishing the character of the permanent disability that was the basis of the prior award (from which he or she cannot assert medical rehabilitation), then apportionment shall be determined substantially in accordance with the same overlap principles that historically applied to cases decided before the enactment of SB899. (See Sanchez v. County of Los Angeles (2005) 6 WCAB Rptr. 10,249 [en banc].)Harold Heim v. Workers' Compensation Appeals Board, American Building Maintenance 8 WCAB Rptr. 10,308 [Writ Denied]

APPORTIONMENT - Labor Code §4664–Apportionment of overlapping disabilities–Under the new Labor Code §4664, the employer continues to bear the burden of proof on the issue of apportionment: (1) the employer must prove the existence of the prior permanent disability award, and (2) then having established that the permanent disability on which that award was based still exists, the employer must prove the extent of the overlap, if any, between the prior disability and the current disability. Under these circumstances, the employer is entitled to avoid liability for the workers' current permanent disability only to the extent the employer carries the burden of proving that some or all of that disability overlaps with the prior disability and is therefore attributable to the prior industrial injury, for which the employer is not liable. Ed Kopping v. Workers' Compensation Appeals Board, California Highway Patrol 8 WCAB Rptr. 10,283 ___Cal.App.4th___

APPORTIONMENT - Labor Code §4664(b) creates a conclusive presumption of the continued existence of a prior permanent disability when the injured worker received an award of permanent disability benefits based on that disability, thereby precluding the injured worker from proving medical rehabilitation from the prior disability. ___Cal.App.4th___

APPORTIONMENT - Labor Code §4664–An order approving a compromise and release agreement, without more, is not a "prior award of permanent disability" within the meaning of Labor Code §4664(b). [Writ Denied]

APPORTIONMENT - Labor Code §4664–Where there is no "prior award of permanent disability" within the meaning of Labor Code §4664(b), the medical reports and other evidence relating to a prior industrial injury that was settled by a compromise and release still may be relevant in determining whether any of the permanent disability found after a subsequent industrial injury was caused by "other factors" under Labor Code §4663. [Writ Denied]

APPORTIONMENT - Labor Code §4554—The concept of medical rehabilitation from a prior industrial disability remains viable under Labor Code §4663, but even if an injured employee has medically rehabilitated from a prior industrial disability, this does not necessarily preclude a prior industrial injury from being an "other factor" causing the employee's present disability. Hayward Lumber v. Workers' Compensation Appeals Board (Eric Pasquotto) 8 WCAB Rptr. 10,292 [Writ Denied]

APPORTIONMENT-When an injured employee received a prior disability award while working for a different employer, apportionment of the amount of permanent disability indemnity is calculated by determining the overall percentage of permanent disability and then subtracting the percentage of permanent disability caused by other factors, including the prior disability award. Kenneth Dee Welcher v. Workers' Compensation Appeals Board, Hat Creek Constructors and State Compensation Insurance Fund 8 WCAB Rptr. 10,267 ___Cal.App.4th___ Aurora Lopez v. Workers' Compensation Appeals Board, Department of Social Services 8 WCAB Rptr. 10,267___Cal.App.4th___ Henry L. Williams v. Workers' Compensation Appeals Board, United Airlines 8 WCAB Rptr. 10,268 ___Cal.App.4th___ Jack Strong v. Workers' Compensation Appeals Board, City and County of San Francisco 8 WCAB Rptr. 10,268 ___Cal.App.4th___

APPORTIONMENT-Labor Code §4664-In this case, the Court of Appeal applied the Fuentes formula C, which had been applied in two prior published decisions: E&J Gallo Winery v. Workers' Comp. Appeals Bd. (2005) 134 Cal.App.4th 1536, 8 WCAB Rptr. 10,006 and Nabors v. Workers' Comp. Appeals Bd. (2006) 140 Cal.App.4th 217, 8 WCAB Rptr. 10,171, but modified the application of the formula by not applying a credit for or subtracting the amount of the previous disability award but rather accounting for the prior permanent disability by converting the overall percentage of current disability into its monetary equivalent and then subtracting current dollar value of the percentage of preexisting disability. Stan Brodie v. Workers' Compensation Appeals Board, Contra Costa County Fire Protection District ___Cal.App.4th___

APPORTIONMENT-Labor Code §4664–WCJ did not err in refusing to reduce the permanent disability by the percentage of permanent disability previously awarded as required by Labor Code §§4663 and 4664, which mandate that the employer is liable only for the percentage of permanent disability caused by an injury. (See E & J. Gallo Winery v. Workers' Compensation Appeals Board (David Dykes) (2005) 134 Cal.App.4th 1536, 8 WCAB Rptr. 10,006.) Brinks Inc. v. Workers' Compensation Appeals Board (Robert Flores) 8 WCAB Rptr. 10,230 [Writ Denied]

APPORTIONMENT-Labor Code §4664-Did the Appeals Board err in deducting the percentage of permanent disability for a pre-existing condition from the current overall percentage of permanent disability? Moises Torres v. Workers' Compensation Appeals Board, Williams Tank Lines 8 WCAB Rptr. 10,190 [Writ Granted]

APPORTIONMENT-Labor Code §4663–Under the new apportionment rules, the employer is liable only for the percentage of permanent disability directly caused by the industrial injury. All factors of causation of permanent disability are considered in the determination of apportionment, including pre-existing pathology. [In this case, applicant's pre-existing pathology was demonstrated by substantial medical evidence in the form of MRI findings of pre-existing degenerative disease in the low back.] Jaynell Meszaros v. Workers' Compensation Appeals Board, Brighton Gardens 8 WCAB Rptr. 10,182 [Writ Denied]

APPORTIONMENT-Labor Code §4664–When an employee sustains multiple industrial injuries, the employee is entitled to compensation for total disability above any percentage of permanent disability previously awarded. This is accomplished by the application of the Fuentes formula C: dollar value of previous award, subtracted from the dollar value of total current permanent disability. Danny Nabors v. Workers' Compensation Appeals Board, Piedmont Lumber Co. 8 WCAB Rptr. 10,171 ___Cal.App.4th___

APPORTIONMENT- Labor Code §4664–Did the Appeals Board err when it concluded that an employee is not entitled to be compensated for permanent disability resulting from a new industrial injury to the extent that this permanent disability is overlapped by prior permanent disability award? Ed Kopping v. Workers' Compensation Appeals Board, California Highway Patrol 8 WCAB Rptr. 10,141 [Writ Granted]

APPORTIONMENT- Labor Code §4664–Did the Appeals Board err by subtracting the percentage of prior disability awards, rather than the monetary value, from the current overall percentage of permanent disability? Stan Brodie v. Workers' Compensation Appeals Board, Contra Costa County Fire Protection District 8 WCAB Rptr. 10,142 [Writ Granted]

APPORTIONMENT- Overlapping disabilities–Labor Code §4664–Did the Appeals Board err in determining that applicant was not entitled to be compensated for permanent disability resulting from a new industrial injury to the extent that this permanent disability is overlapped by prior permanent disability, even where the prior permanent disability involves and/or includes different regions of the body? John Shevchuk v. Workers' Compensation Appeals Board, United Airlines 8 WCAB Rptr. 10,144[Writ Granted]

APPORTIONMENT¬ Labor Code §4664–Did the Appeals Board err when it concluded that an employee is not entitled to be compensated for permanent disability resulting from a new industrial injury to the extent that this permanent disability is overlapped by prior permanent disability award? Ed Kopping v. Workers' Compensation Appeals Board, California Highway Patrol 8 WCAB Rptr. 10,141 [Writ Granted]

APPORTIONMENT¬ Labor Code §4664–Did the Appeals Board err by subtracting the percentage of prior disability awards, rather than the monetary value, from the current overall percentage of permanent disability? Stan Brodie v. Workers' Compensation Appeals Board, Contra Costa County Fire Protection District 8 WCAB Rptr. 10,142 [Writ Granted]

APPORTIONMENT¬ Overlapping disabilities–Labor Code §4664–Did the Appeals Board err in determining that applicant was not entitled to be compensated for permanent disability resulting from a new industrial injury to the extent that this permanent disability is overlapped by prior permanent disability, even where the prior permanent disability involves and/or includes different regions of the body? John Shevchuk v. Workers' Compensation Appeals Board, United Airlines 8 WCAB Rptr. 10,144[Writ Granted]

APPORTIONMENT- Conclusive presumption of permanent total disability–Labor Code –4662(b)–The conclusive presumption of permanent total disability pursuant to Labor Code §4662(b) is a rule of substantive law, which can not be rebutted and no evidence may be received to contradict it. (See People v. McCall (2004) 32 Cal.4th 175.) [In this case it was also conclusively presumed pursuant to Labor Code §4664(b) that applicant had a prior disability of 18.75% for which she receive an award, existed at the time of the subsequent industrial injuries, the evidence of the prior award under Labor Code §4664(b) cannot rebut the conclusive presumption of permanent total disability under Labor Code §4662(b).] Kaiser Foundation Hospitals v. Workers' Compensation Appeals Board (Lucretia Dragomir-Tremoureux) 8 WCAB Rptr. 10,127 [Writ Denied]

APPORTIONMENT- Labor Code §4663–The Legislature intended new Labor Code §§4663 and 4664 to apply to all pending cases prospectively from the date of enactment of SB899, regardless of date of injury, and regardless if discovery was closed on the date of enactment. (See Kleemann v. Workers' Comp. Appeals Bd. (2005) 127 Cal.App.4th 274, 7 WCAB Rpr. 10,083.) Yiu Sing Leung v. Workers' Compensation Appeals Board, ABC Seafood Restaurant 8 WCAB Rptr. 10,134 [Writ Denied]

APPORTIONMENT- Overlapping disabilities–Labor Code §4664–Before the repeal of former Labor Code §4750 and continuing with Labor Code §4664 enacted by SB899, an employee is not entitled to be compensated for permanent disability resulting from a new industrial injury to the extent that this permanent disability is overlapped by prior permanent disability, even where the prior permanent disability involves and/or includes different regions of the body. (See Strong v. City and County of San Francisco (2005) 7 WCAB Rptr. 10,349.) John Shevchuk v. Workers' Compensation Appeals Board, United Airlines 8 WCAB Rptr. 10,135 [Writ Denied]

APPORTIONMENT- When an injured employee received a prior disability award while working for a different employer, did the Appeals Board err when it calculated the amount of indemnity due by determining the overall percentage of permanent disability and then subtracting the percentage of permanent disability caused by other factors, including the prior disability award? Kenneth Dee Welcher v. Workers' Compensation Appeals Board, Hat Creek Constructors and State Compensation Insurance Fund 8 WCAB Rptr. 10,126 [Writ Granted]

APPORTIONMENT- Labor Code §4663–To constitute substantial evidence on the issue of apportionment of permanent disability under Labor Code §4663, a medical opinion must be framed in terms of reasonable medical probability, must not be speculative, must be based on pertinent facts and an adequate examination and history, and must set forth the reasoning of its conclusions. (See Escobedo v. Marshalls (2005) 7 WCAB Rptr. 10,143. [en banc]) Unisan Madayag v. Workers' Compensation Appeals Board, California Pacific Medical Center 8 WCAB Rptr. 10,085 [Writ Denied]

APPORTIONMENT- Application of new apportionment provisions–Labor Code §4663–In this case, the parties stipulated that the overall disability for applicant's back injury was 100%. Did the WCJ err in deducting 35%, representing prior awards for industrial back injuries, instead of deducting the monetary value of the prior awards? Fortunata Mary Davis v. Workers' Compensation Appeals Board, Allied Security 8 WCAB Rptr. 10,063 [Writ Granted]

APPORTIONMENT- Application of newly enacted apportionment provisions–Labor Code §§4663 and 4664–When an injured employee received a prior disability award while working for a different employer, the amount of indemnity due is calculated by determining the overall percentage of permanent disability and then subtracting the percentage of permanent disability caused by other factors, including the prior disability award. (See Nabors v. Piedmont Lumber & Mill Co. (2005) 7 WCAB Rptr. 10,192 [en banc].) Kenneth Dee Welcher v. Workers' Compensation Appeals Board, Hat Creek Constructors and State Compensation Insurance Fund 8 WCAB Rptr. 10,065 [Writ Denied]

APPORTIONMENT- Where a prior award of permanent disability has been approved by the Appeals Board, the percentage of permanent disability previously awarded is not subtracted from a new permanent disability awarded for a subsequent industrial injury to a different body region, and both injuries are determined to be permanent and stationary at the same time. (See Home Depot v. Workers' Comp. Appeals Bd. (Smith) 60 Cal.Comp.Cases 449 [writ denied].) University of the Pacific v. Workers' Compensation Appeals Board (David Hern) 8 WCAB Rptr. 10,066 [Writ Denied

APPORTIONMENT- Application of new apportionment provisions–Labor Code §4663–In this case, the parties stipulated that the overall disability for applicant's back injury was 100%, and the WCJ properly deducted 35%, representing the prior awards for industrial back injuries instead of deducting the monetary value of the prior awards. Fortunata Mary Davis v. Workers' Compensation Appeals Board, Allied Security 8 WCAB Rptr. 10,052 [Writ Denied]

APPORTIONMENT- Labor Code §4663–Is apportionment to pathology, asymptomatic prior conditions and retroactive prophylactic work preclusions allowed under the newly enacted Labor Code §4663?E.L. Yeager Construction v. Workers' Compensation Appeals Board (Dennis Gatten) 8 WCAB Rptr. 10,051 [Writ Granted]

APPORTIONMENT- SB 899 enactment of Labor Code §4663–The new apportionment provisions of SB 899 apply to all cases pending and not yet final at the time of its April 19, 2004, effective date. (See Marsh v. Workers' Comp. Appeals Bd. (2005) 139 Cal.App.4th 906, 7 WCAB Rptr. 10,199; Kleemann v.Workers' Comp. Appeals Bd. (2005) 127 Cal.App.4th 517, 7 WCAB Rptr. 10,083.) Aldworth Company/Keystone Freight v. Workers' Comp. Appeals Bd. (Gailen Lawrence) 8 WCAB Rptr. 10,047 ___Cal.App.4th___

APPORTIONMENT- Labor Code §4544(a) enacted by SB 899 provides a conclusive presumption that the injured worker retains the level of permanent disability previously awarded. Nothing in that statute or its legislative history shows any intention to bar proof that the prior permanent disability has increased. City of Santa Clara v. Workers' Compensation Appeals Board (Carl Navarette) 8 WCAB Rptr. 10,023 [Writ Denied]

APPORTIONMENT- Labor Code §4664–The Fifth District Court of Appeal rules that the Appeals Board did not err in refusing to reduce the permanent disability by the percentage of permanent disability previously awarded as required by Labor Codes §§4663 and 4664, which mandate that the employer is liable only for the percentage of permanent disability caused by an injury. E.J. Gallo Winery v. Workers' Compensation Appeals Board (David Dykes) 8 WCAB Rptr. 10,006 ___Cal.App.4th___

APPORTIONMENT– The Fifth District Court of Appeal rules that the Appeals Board did not err in refusing to reduce the permanent disability by the percentage of permanent disability previously awarded as required by Labor Code §§4663 and 4664, which mandate that the employer is liable only for the percentage of permanent disability caused by an injury. E.J. Gallo Winery v. Workers' Compensation Appeals Board (David Dykes) 8 WCAB Rptr. 10,006 ___Cal.App.4th___

APPORTIONMENT– Labor Code §4663 enacted by SB 899– The rules of apportionment of permanent disability following the enactment of SB 899 changed or even eliminated liability for compensation where permanent disability is caused by a prior non-disabling condition. National Staff Network v. Worker's Compensation Appeals Board (Evelyn Mann-Harrison) 7 WCAB Rptr. 10,356 ___Cal.App.4th___

APPORTIONMENT– Calculating permanent disability in the case of a previous award– Labor Code §464– When an award of permanent disability after apportionment is made, is the amount of indemnity due applicant calculated by determining the overall percentage of permanent disability and then subtracting the percentage of permanent disability caused by other factors under Labor Code §4663(c) or previously awarded under Labor Code §4664(b), and the remainder is applicant's final percentage of permanent disability for which indemnity is calculated pursuant to Labor Code §§4453 and 4658? Danny Nabors v. Workers' Compensation Appeals Board, Piedmont Lumber Company, State Compensation Insurance Fund 7 WCAB Rptr. 10,330 [Writ Granted]

APPORTIONMENT– Labor Code §4663– The apportionment provisions relating to pre-existing disease as amended by SB899 applies to any case still pending when the legislation become effective. (See Rio Linda Union School Dist. v. Workers' Comp. Appeals Bd. (Scheftner) (2005) 131 Cal.App.4th 517, 7 WCAB Rptr. 10,227.) Filco Folsom v. Workers' Compensation Appeals Board (Gale Butler) 7 WCAB Rptr. 10,324 ___Cal.App.4th___

APPORTIONMENT– Labor Code §4663– The new apportionment rules enacted by SB 899 provide for apportionment based on causation and requires a physician to make an apportionment determination by finding what approximate percentage of permanent disability was caused as a direct result of the industrial injury and what percentage of permanent disability was caused by other factors both before and subsequent to the industrial injury. The new rules permit apportionment to other factors not permitted under former Labor Code §4663, so long as there is substantial medical evidence establishing the other factors caused permanent disability. (See Escobedo v. Marshalls (2005) 7 WCAB Rptr. 10,143 [en banc].) Jennifer Mello v. Workers' Compensation Appeals Board, Gateway Dental 7 WCAB Rptr. 10,317 [Writ Denied]

APPORTIONMENT– Labor Code §4664 enacted by SB899 places the burden on the applicant to establish the approximate percentage of permanent disability directly caused by the industrial injury. Conversely, defendant has the burden of establishing the approximate percentage of permanent disability that was caused by other factors, other than the industrial injury. (See Escobedo v. Marshall's (2005) 7 WCAB Rptr. 10,143 [en banc].) Wal-Mart, Inc. v. Workers' Compensation Appeals Board (Josephine Brown) 7 WCAB Rptr. 10,317 [Writ Denied]

APPORTIONMENT– Labor Code §4663– When there is no final order, decision, or award (a final order defined as one in which all rights of appeal have been exhausted or were not pursued), it is proper for the matter to be returned to the trial level for development of the medical record on possible apportionment of permanent disability. (See Kleemann v. Worker' Comp. Appeals Bd. (2005) 27 Cal.App.4th 274, 7 WCAB Rptr. 10,083.)Babatunde Harum v. Workers' Compensation Appeals Board, County of Los Angeles 7 WCAB Rptr. 10,303 [Writ Denied]

APPORTIONMENT– Labor Code §4663– A physician must make an apportionment determination by finding what approximate percentage of 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 permanent disability was caused by other factors before and subsequent to the injury. (In this case, the physician properly apportioned disability 50% as a result of a torn meniscus and 50% as a result of preexisting osteoarthritis based on that portion of surgery that treated osteoarthritis (chondroplasty of the lateral femoral condyle) and surgery that treated the torn meniscus (proximal lateral anterior meniscectomy).) Arceli Beery v. Workers' Compensation Appeals Board, K-Mart 7 WCAB Rptr. 10,302 [Writ Denied]

APPORTIONMENT– Labor Code §4663– Apportionment of permanent disability shall be based on causation and determination of what percentage of permanent disability was caused by industrial injury and what percentage was caused by other factors, which may include not only disability that could be apportioned prior to SB 899 but other factors that formerly could not be apportioned (e.g., pathology, asymptomatic prior conditions, and retroactive prophylactic work preclusions), provided substantial medical evidence establishes that these other factors caused permanent disability. Marlene Escobedo v. Workers' Compensation Appeals Board, Marshall's 7 WCAB Rptr. 10,297 [Writ Denied]

APPORTIONMENT– Did the Appeals Board err when it held that the apportionment provisions of SB899 did not apply to this case where an order closing discovery was made prior to April 19, 2004? Overnite Transportation Company v. Workers' Compensation Appeals Board (James Patterson) 7 WCAB Rptr. 10,281 [Writ Granted]

APPORTIONMENT– Pre-existing disability-Labor Code §4663– Under either pre- or post-SB 899, the defendant had not met the burden of proof on apportionment based on a pre-existing disability. [In this case, at the time of the injury in question, applicant was not under active treatment for a prior injury, was working full-time without restrictions or limitation of activities, and had not lost time from work for any orthopedic or psychiatric problem.] City of Sunnyvale v. Workers' Compensation Appeals Board (Mary Carr) 7 WCAB Rptr. 10,271 [Writ Denied]

APPORTIONMENT– The new Labor Code §§4663 and 4664 apply to all cases pending and not yet final at the time SB 899 became effective on April 19, 2004. (See Kleemann v. Workers' Comp. Appeals Bd. (2005) 127 Cal.App.4th 274, 7 WCAB Rptr. 10,083). A WCAB determination is not final for purposes of considering apportionment under SB 899 until the WCAB has issued a final judgment and the appellate process has been exhausted. (See Marsh v. Workers' Comp. Appeals Bd. (2005) 130 Cal.App.4th 906, 7 WCAB Rptr. 10,198) Wilbur-Ellis Company v. Workers' Compensation Appeals Board (Jose Flores) 7 WCAB Rptr. 10,251 ___Cal.App.4th___

APPORTIONMENT– Application of new apportionment rules– Labor Code §§4664 and 4664– Injuries occurring before the effective date of the amendments are subject to SB 899 if no final judgment has been entered in the case. (See Kleemann v. Workers' Comp. Appeals Bd. (2005) 127 Cal.App.4th 274, 7 WCAB Rptr. 10,083 ; Marsh v. Workers' Comp. Appeals Bd. (2005) 130 Cal.App.4th 906, 7 WCAB Rptr. 10, 10,198 .) Richview, Inc. v. Workers' Compensation Appeals Board (Felipe Gonzalez) 7 WCAB Rptr. 10,251 ___Cal.App.4th___

APPORTIONMENT– Presumption of prior permanent disability– Labor Code §4464(b)– If an applicant has received a prior award of permanent disability, it shall be conclusively presumed that the prior permanent disability exists at the time of any subsequent industrial injury. This is a presumption affecting the burden of proof and the applicant has the right to present evidence that she has fully recovered from any prior permanent disability award. [In this case, the applicant was a registered nurse at San Quentin who returned to work performing her regular job duties with no restrictions after prior back surgery.] California Department of Corrections v. Workers' Compensation Appeals Board (Jane Maruoka) 7 WCAB Rptr. 10,246 [Writ Denied]

APPORTIONMENT– Overlapping disabilities– One disability is not considered to overlap another disability unless the disabilities impair the employee's ability to perform the work in the same manner. (See Newman v. Workers' Comp. Appeals Bd. (1984) 152 Cal.App.3d 219.) [In this case, the employee sustained an injury to his back and an impairment of his liver which were separate and distinct physical abnormalities resulting from a single industrial accident. The back injury caused a weakness that precluded lifting of heavy objects and the impairment of liver functions limited the capacity to work after several hours of exertion.] Marriott International, Inc. v. Workers' Compensation Appeals Board (Mohamed Sabry) 7 WCAB Rptr. 10,245 [Writ Denied]

APPORTIONMENT– Labor Code §4664– Did the Appeals Board err in refusing to reduce the permanent disability by the percentage of permanent disability previously awarded as required by Labor Code §§4663 and 4664 which mandate that the employer is only liable for the percentage of permanent disability caused by an injury? E.J. Gallo Winery v. Workers' Compensation Appeals Board (David Dykes) 7 WCAB Rptr. 10,239 [Writ Granted]

APPORTIONMENT– Labor Code §4663– The new apportionment provisions enacted as part of SB 899 apply to all cases pending and not yet final at the time of SB 899's April 19, 2004 effective date. (See Marsh v. Workers' Comp. Appeals Bd. (2005) ___Cal.App.4th___. 7 WCAB Rptr. 10,198, Kleeman v. Workers' Comp. Appeals Bd. (2005) 127 Cal.App.4th 274, 7 WCAB Rptr. 10,083.) Lindsay District Hospitals v. Workers' Compensation Appeals Board (Bobbie Fuller) 7 WCAB Rptr. 10,232 ___Cal.App.4th___

APPORTIONMENT– Labor Code §§4664 and 4664– Application of apportionment provisions enacted by SB 899– The new apportionment provisions enacted by SB 899 requiring apportionment based on causation apply to a workers' compensation case submitted to a workers' compensation judge for decision prior to the April 19, 2004 effective date of SB 899, but on which an award and findings was not issued until after the effective date of SB 899. Rio Linda Union Elementary School District v. Workers' Compensation Appeals Board (Janelle Scheftner) 7 WCAB Rptr. 10,227 ___Cal.App.4th___

APPORTIONMENT– Labor Code §4663 requires physicians to apportion based on causation providing a percentage. In this case, the defense QME filed to provide a percentage and the applicant's QME opined that 100% of the permanent disability was the result of the specific injury in question. Based on this evidence, the defendant failed in its burden of proving apportionment pursuant to Labor Code §4663. The defendant failed to provide the evidence of a prior award or stipulation reflecting permanent disability so it failed in its burden pursuant to Labor Code §4664. Knight Transportation v. Workers' Compensation Appeals Board (Rodney Boyd) 7 WCAB Rptr. 10,224 [Writ Denied]

APPORTIONMENT– Labor Code §4663– Until there is a final judgment, following exhaustion of appellate review, all cases pending as of the date of SB 899's enactment on April 19, 2004 are subject to the new apportionment rules. (See Kleeman v. Workers' Comp. Appeals Bd. (2005) 127 Cal.App.4th 274, 7 WCAB Rptr. 10,083.) Michael Kresky v. Workers' Compensation Appeals Board, G.C. Services 7 WCAB Rptr. 10,224 [Writ Denied]

APPORTIONMENT– Labor Code §4663– The provisions of section 47 of SB 899 preclude the parties from re-litigating an issue that had become final prior to the enactment of SB 899 on April 19, 2004. Lawrence Hill v. Workers' Compensation Appeals Board, City of Santa Rosa 7 WCAB Rptr. 10,223 [Writ Denied]

APPORTIONMENT– Labor Code §4663– Applicability of newly enacted apportionment rules– Permanent disability claims that are not final before the effective date of SB 899 must be considered in light of SB 899's new apportionment rules. Stanley Marsh v. Workers' Compensation Appeals Board, Stanley Bostitch, Constitution State Service Company 7 WCAB Rptr. 10,199 ___Cal.App.4th___

APPORTIONMENT– Labor Code §4663– Should the apportionment provisions relating to pre-existing disease as amended by SB899 have been applied? Richview, Inc., California Guarantee Association v. Workers' Compensation Appeals Board, State Compensation Insurance Fund (Felipe Gonzales) 7 WCAB Rptr. 10,183 [Writ Granted]

APPORTIONMENT– Labor Code §4663– Should apportionment provisions relating to pre-existing disease as amended by SB899 have been applied? Filco Folsom v. Workers' Compensation Appeals Board (Gale Butler) 7 WCAB Rptr. 10,169

APPORTIONMENT– Labor Code §4663– Apportionment to a natural progression of pre-existing pathology requires that the physician express his rationale. In the absence of persuasive, rational and supporting medical facts, an opinion on apportionment is speculative. [In this case, the physician found that chronic venous insufficiency of the lower legs with resultant recurring deep-vein thromboses was a progressive disease and that trauma to the applicant's leg aggravated that condition, but the physician concluded that in the absence of industrial injury, applicant's condition would be the same.] Gale D. Butler v. Workers' Compensation Appeals Board, Filco and Zenith Insurance Co. 7 WCAB Rptr. 10,141

APPORTIONMENT– Labor Code §4663– Applicability of newly enacted apportionment rules–Permanent disability claims not reduced to a final judgment by the effective date of SB 899 must be considered in light of SB 899's new apportionment rules. (See Kleeman v. Workers' Comp. Appeals Bd. (2005) 127 Cal.App4th 274, 7 WCAB Rptr. 10,083.) State of California, Employment Development Department v. Workers' Compensation Appeals Board (Kathryn Kral) 7 WCAB Rptr. 10,084

APPORTIONMENT– Labor Code §4663– Applicability of newly enacted apportionment rules–Permanent disability claims not reduced to a final judgment by the effective date of SB 899 must be considered in light of SB 899's new apportionment rules. [In this case, after the effective date of enactment of SB 899, the WCJ vacated the submission of a matter and ordered development of the medical record on the newly enacted apportionment rules.] Gregory Kleemann v. Workers' Compensation Appeals Board, State of California Department of Justice 7 WCAB Rptr. 10,083

APPORTIONMENT– Was the Appeals Board en banc decision correct when it held that the apportionment provisions of SB 899 do not apply to cases in which there has been an interim order of submission or an order closing discovery? Rio Linda Union Elementary School District v. Workers' Compensation Appeals Board (Janelle Scheftner) 7 WCAB Rptr. 10,076

APPORTIONMENT– Labor Code §4663– Applicability of newly enacted apportionment rules–Must permanent disability claims that are not final before the effective date of SB 899 be considered in light of SB 899's new apportionment rules? Stanley Marsh v. Workers' Compensation Appeals Board, Stanley Bostitch, Constitution State Service Company 7 WCAB Rptr. 10,023

APPORTIONMENT– Labor Code §4664(b)– In this case the WCJ properly deducted the prior stipulated level of disability from the disability level for the subsequent injury. Golden Gate Bridge Highway and Transportation District v. Workers' Compensation Appeals Board (Paula Paul) 6 WCAB Rptr. 10,287

APPORTIONMENT– Pre-existing nonindustrial condition– Labor Code §4663–In apportionment under Labor Code §4663, it must be shown that the apportioned percentage of nonindustrial permanent disability would have resulted at present even in absence of the industrial injury. The issue is what in fact is the cause of the present disability rather than what are the hypothetical causes of a disability that might occur at some indefinite time in the future. (See King v. Workers' Comp. Appeals Bd. (1991) 231 Cal.App.3d 1640.) San Jose Mercury News v. Workers' Compensation Appeals Board (Lee Quarnstrom) 6 WCAB Rptr. 10,219

APPORTIONMENT– Labor Code §4750– Mere pre-existing pathology is insufficient to support a finding that a portion of the employee's disability is due to pre-existing disease. To justify apportionment, the pre-existing condition must in fact be a disabling condition. (See Zemke v. Workers' Comp. Appeals Bd. (1968) 68 Cal.2d 794.) California Insurance Guarantee Association v. Workers' Compensation Appeals Board (Gregory Townsend) 6 WCAB Rptr. 10,188

APPORTIONMENT– Labor Code §4663– Pre-Existing Disability– To justify apportionment under Labor Code §4663, the medical opinion on which the apportionment is based must state that the injured worker would have suffered permanent disability as a result of the normal progress of a nonindustrial condition even in the absence of industrial injury. (See Zemke v. Workers' Comp. Appeals Bd. (1968) 68 Cal.2d 794.) It is necessary that such nonindustrial disability would have occurred by the time the worker's present disability became permanent and stationary; it is insufficient that the disability would have occurred at some future time. (See Duthie v. Workers' Comp. Appeals Bd. (1978) 86 Cal.App.3d 721.) Universal Studios, Inc. v. Workers' Compensation Appeals Board (Betsy Mitchell) 6 WCAB Rptr. 10,159

APPORTIONMENT– Labor Code §4750– Pre-existing permanent disability or physical impairment– Under specified circumstances Labor Code §4750 provides for apportionment of a worker's disability to nonindustrial causes, if: the medical opinion relied on for making apportionment determinations is not speculative, it discloses familiarity with the basis for apportionment, it describes in detail the exact nature of the disability to which apportionment is sought, and the basis of the opinion. (See Martins v. Workers' Comp. Appeals Bd. (1995) 40 Cal.App.4th 1090.) [In this case, the determination of apportionment was speculative inasmuch as the physician was attempting to apply a prophylactic work restriction retrospectively. (See Paneno v. Workers' Comp. Appeals Bd. 4 Cal.App,4th 136.)] Carrows Restaurants v. Workers' Compensation Appeals Board (Mary Chatfield) 6 WCAB Rptr. 10,126

APPORTIONMENT– Pre-existing Permanent Disability or Physical Impairment– Labor Code §4750– An employer is liable only for that portion of a subsequent injury that the employee would have sustained absent the prior injury. To support apportionment, the pre-existing disability must have actually been labor disabling as evidenced by prior complaints to coworkers or physicians, treatment to the same part of the body, or measurable pre-existing loss of functioning. (See King v. Workers' Comp. Appeals Bd. (1991) 231 Cal.App.3d 1640.) Hortencia Acosta v. Workers' Compensation Appeals Board, Basic Vegetable Products. 6 WCAB Rptr. 10,115

APPORTIONMENT– Pre-existing condition– Labor Code §4750– Apportionment for a pre-existing condition requires a showing that at the time of the industrial injury, there was a prior permanent disability, i.e., a permanent impairment which impairs the worker's earning capacity or the worker's bodily function, or creates a competitive handicap for the worker in the open labor market. (See Franklin v. Workers' Comp. Appeals Bd. (1978) 79 Cal.App.3d 224.) San Mateo County Transit District v. Workers' Compensation Appeals Board (Dallas T. Tillman) 6 WCAB Rptr. 10,109

APPORTIONMENT– Pre-existing condition– Labor Code §4750– A pre-existing disability cannot be established by a 'retroactive prophylactic work restriction' on the pre-existing condition placed on the injured worker after the subsequent industrial injury in absence of evidence to show that the worker was actually restricted in his work activity prior to the industrial injury. (See Franklin v. Workers' Comp. Appeals Bd. (1978) 79 Cal.App.3d 224.) San Mateo County Transit District v. Workers' Compensation Appeals Board (Dallas T. Tillman) 6 WCAB Rptr. 10,109

APPORTIONMENT– Labor Code §4750– To support apportionment under Labor Code §4750, a preexisting disability must have actually been labor disabling as evidenced by prior complaints to coworkers or physicians, treatment to the same part of the body, or measurable preexisting loss of functioning. (See King v. Workers' Comp. Appeals Bd. (1991) 231 Cal.App.3d 1640.) A preexisting disability cannot be established by a retroactive prophylactic work restriction on the preexisting condition placed on the injured worker after the subsequent industrial injury in absence of evidence to show that the worker was actually restricted in his work activity prior to the industrial injury. Raymond Mendosa v. Workers' Compensation Appeals Board, Turlock Scavenger Company. 5 WCAB Rptr. 10,347

APPORTIONMENT– Under both Labor Code §§4663 and 4750, the employer is liable to the extent that the industrial injury accelerates of "lights up" the pre-existing condition, and neither statute permits apportionment of pathology or causative factors; only disability may be apportioned. (See Pullman Kellogg v. Workers' Comp. Appeals Bd. (Normand) (1980) 26 Cal.App.3d 450.) Young's Market v. Workers' Compensation Appeals Board (Olga Shannon) 5 WCAB Rptr. 10,307

APPORTIONMENT– Preexisting Injury or Condition– Labor Code §4750– No apportionment of permanent disability can be made merely because of the existence of a disease or pathologic condition that was asymptomatic and did not become the cause of labor disablement before the industrial injury, (See Ferguson v. Industrial Accident Commission (1958) 50 Cal.2d 469. [In this case, the injured worker complained of low back pain for some time prior to the industrial injury but had been treated for low back pain and had returned to full duty, An MRI of the back did not show significant pathology prior to the industrial injury.] Los Angeles Unified School District v. Workers' Compensation Appeals Board (Marlene McLemore) 5 WCAB Rptr. 10,307

APPORTIONMENT– Labor Code §4750– To justify apportionment under section 4750, there must be evidence of preexisting disability upon which an award of permanent disability could have been made had that disability been industrially caused, i.e., the disability must have been a ratable permanent disability. (See Franklin v. Workers' Comp. Appeals Bd. (1978) 79 Cal.App.3d 224.) Bruker-AXS; Royal & Sunalliance Insurance Company v. Workers' Compensation Appeals Board (Kristopher Means) 5 WCAB Rptr. 10,306

APPORTIONMENT– Apportionment cannot be based on a conjectural retroactive work restriction. (See Amico v. Workmen's Comp. Appeals Bd. (1974) 43 Cal.App.3d 592.) Bruker-AXS; Royal & Sunalliance Insurance Company v. Workers' Compensation Appeals Board (Kristopher Means) 5 WCAB Rptr. 10,306

APPORTIONMENT– If apportionment is based on a medical opinion, the opinion must establish that the worker had a preexisting disability and must describe its exact nature and the basis for the opinion. (See Ditler v. Workers' Comp. Appeals Bd. (1982) 131 Cal.App.3d 803; Callahan v. Workers' Comp. Appeals Bd. (1978) 85 Cal.App.3d 803.) Bruker-AXS; Royal & Sunalliance Insurance Company v. Workers' Compensation Appeals Board (Kristopher Means) 5 WCAB Rptr. 10,306

APPORTIONMENT– Natural progression of a nonindustrial condition or disease– Labor Code §4663– To apportion under Labor Code §4663, there must be a medical opinion stating that some definable portion of the applicant's permanent disability would have occurred as the result of the natural progression of a nonindustrial condition or disease even absent the industrial injury. (See Pullman Kellogg v. Workers' Comp. Appeals Bd. (Normand) (1980) 26 Cal.3d 450.) The medical evidence must disclose the facts relied upon and the reasoning behind the opinion that the applicant's progressive disease or condition would have been disabling even in the absence of the industrial injury. (See Zemke v. Workers' Comp. Appeals Bd. (1968) 68 Cal.2d 794.) Pepsi Bottling Group v. Workers' Compensation Appeals Board (Flynn Epps) 5 WCAB Rptr. 10,263

APPORTIONMENT– Preexisting condition– Labor Code §4750– To apportion under Labor Code §4750, there must be evidence of a preexisting condition that was in fact labor disabling prior to the occurrence of the industrial injury in question– that is, there must have been disability that would have been ratable had it been industrially caused. (See Ditler v. Workers' Comp. Appeals Bd. (1982) 131 Cal.App.3d 803.) Actual pre-existing disability may be established by, among other things, testimony by the injured worker or others that he was unable to perform certain activities before the industrial injury; complaints to fellow workers or physicians before the injury; treatment to the same part of the body before the injury; or measurable loss of function before the injury. (See King v. Workers' Comp. Appeals Bd. (1991) 231 Cal.App.3d 1640.) Pepsi Bottling Group v. Workers' Compensation Appeals Board (Flynn Epps) 5 WCAB Rptr. 10,263

APPORTIONMENT– In general, apportionment is a question of fact and must be supported by evidence indicating the proportion of disability properly chargeable to non-industrial factors. Apportionment may not be based upon causation or pathology. (See Pullman Kellogg v. Workers' Comp. Appeals Bd. (Normand) (1980) 26 Cal.3d 450.) Michael Porter v. Workers' Compensation Appeals Board, Pool Offshore Company. 5 WCAB Rptr. 10,262

APPORTIONMENT– Labor Code §4750– There must be evidence of preexisting disability upon which an award of permanent disability could have been made had that disability been industrially caused; that is, the disability must have been a ratable permanent disability. (See Franklin v. Workers' Comp. Appeals Bd. (1978) 79 Cal.3d 229.) If the apportionment is based on medical opinion, the opinion must establish that the worker had a pre-existing disability and must describe its exact nature and the basis for the opinion. (See Ditler v. Workers' Comp. Appeals Bd. (1982) 131 Cal.App.3d 803.) Michael Porter v. Workers' Compensation Appeals Board, Pool Offshore Company. 5 WCAB Rptr. 10,262

APPORTIONMENT– Labor Code §4663– Apportionment can never be made on the basis of pathology or causative factors, either in the case of preexisting disability or in a case of aggravation of an existing condition. Apportionment must be made on the basis of disability. (See King v. Workers' Comp. Appeals Bd. (1991) 231 Cal.App.3d 1640.) [In this case, the applicant's testimony and the evidence as contained in the medical records showed that applicant had fully recuperated and had worked full duty for six years without restriction before the date of the second injury.] Golden State Foods v. Workers' Compensation Appeals Board (Manuel Del Real) 5 WCAB Rptr. 10,294

APPORTIONMENT– Labor Code §4663– To justify apportionment under Labor Code §4663, the medical opinion upon which the apportionment is based must state that the injured worker would have suffered disability to a particular extent as the result of normal progress of nonindustrial condition even in absence of the industrial injury. (See Franklin v. Workers' Comp. Appeals Bd. (1978) 79 Cal.App.3d 224.) California Indemnity Insurance Co. v. Workers' Compensation Appeals Board (Ruben Medina) 5 WCAB Rptr 10,230

APPORTIONMENT– Labor Code §4750– To justify apportionment under Labor Code §4750, the medical opinion upon which the apportionment is based must state that the injured worker had actual permanent disability pre-existing the industrial injury, and must describe the exact nature of the pre-existing disability and the basis of the opinion. (See Ditler v. Workers' Comp. Appeals Bd. (1982) 131 Cal.App.3d 803.) California Indemnity Insurance Co. v. Workers' Compensation Appeals Board (Ruben Medina) 5 WCAB Rptr 10,230

APPORTIONMENT– Under both Labor Code §§4663 and 4750, the employer is liable to the extent that the industrial injury accelerates, aggravates or "lights up" the pre-existing condition and neither statute permits apportionment of pathology or causative factors– only disability may be apportioned. (See Pullman Kellogg v. Workers' Comp. Appeals Bd. (Normand) (1980) 26 Cal.3d 450.) California Indemnity Insurance Co. v. Workers' Compensation Appeals Board (Ruben Medina) 5 WCAB Rptr 10,230

APPORTIONMENT– When dealing with prior nonindustrial injuries, there must be evidence that the pre-existing disability, upon which an award of permanent disability could have been made, had been industrially caused. (See Franklin v. Worker' Comp. Appeals Bd. (1978) 79 Cal.3d 229.) Albertsons v. Workers' Compensation Appeals Board (Miguel Navarrete) 5 WCAB Rptr. 10,212

APPORTIONMENT– Subsequent noncompensable injury– Labor Code §4750.5– An employee who sustained a compensable injury and subsequently sustains an unrelated non-compensable injury shall not receive permanent disability indemnity for any permanent disability caused solely by the subsequent noncompensable injury. Marshalls, RSK Co. v. Workers' Compensation Appeals Board (Wendy Pascual) 5 WCAB Rptr. 10,151

APPORTIONMENT– When a worker suffers successive injuries to the same part of the body, and the conditions resulting from these injuries became permanent and stationary at the same time, the employee is entitled to have the overall condition rated in one combined rating. (See Wilkinson v. Workers' Comp. Appeals Bd. (1977) 19 Cal.3d 491.) Alistar Insurance Company v. Workers' Compensation Appeals Board (Antonio Ruiz) 5 WCAB Rptr. 10,117

APPORTIONMENT– Labor Code §4663– Apportionment of naturally progressing disease process– The first requirement for apportionment for a naturally progressing disease process is that an aggravation of any disease existed prior to the compensable injury. There must be medical evidence that the applicant developed some part of his disability as a result of the natural progression at a definite, ascertainable time. James Hash v. Workers' Compensation Appeals Board (County of Sacramento) 5 WCAB Rptr. 10,087

APPORTIONMENT– Pre-existing condition– Labor §4750– To apportion under Labor Code §4750, there must be evidence of a pre-existing condition that was, in fact, labor disabling prior to the occurrence of the industrial injury in question: that is, there must have been disability that would have been ratable had it been industrially caused. (See Ditler v. Workers' Comp. Appeals Bd. (1982) 131 Cal.App.3d 803.). No apportionment of permanent disability may be made merely because of the existence of a pathologic condition that was asymptomatic and did not cause actual preexisting disability immediately prior to the industrial injury. (See Ferguson v. Industrial Acc. Com. (1958) 50 Cal.3d 469.) [Actual preexisting disability may be established by, among other things, testimony by the injured worker or others that he was unable to perform certain activities before the industrial injury; complaints to fellow workers or physicians before the injury; treatment to the same part of the body before the injury; or measurable loss of function before the injury.] Gurmeet Jammu v. Workers' Compensation Appeals Board (Elma Electronics) 5 WCAB Rptr. 10,086

APPORTIONMENT– Labor Code §4750– The defendant has the burden of proof in establishing valid apportionment to a pre-existing condition or disability. Defendant's doctor must demonstrate that the prior injury was actually labor-disabling at a specific time absent the industrial injury. (See Wilkinson v. Workers' Comp. Appeals Bd. (1077) 19 Cal.3d 491.) [In this case, the medical opinion did not establish the extent of pre-existing disability or the time at which such disability would have developed as a result of the pre-existing condition in absence of the industrial injury.] Bickerton Industries v. Workers' Compensation Appeals Board (Defino Camacho) 5 WCAB Rptr. 10,070

APPORTIONMENT– Labor Code §4750– To determine the permanent disability rating where one or more successive related compensable injuries exist, the disability rating of the earlier injury is substracted from the disability rating of the later injury. (See Fresno Unified School District v. Workers' Comp. Appeals Bd. (Humphrey) (2000) 84 Cal.App.4th 1310, 2 WCAB Rptr. 10,380). Charles Drew Hospital v. Workers' Compensation Appeals Board (Luther Hill) 4 WCAB Rptr. 10,347

APPORTIONMENT– Prior injury or disability– Labor Code §4750– The defendant has the burden of proof on the issue of apportionment. To apportion pursuant to Labor Code §4750, the defendant must show: (1) there was a previous permanent disability or physical impairment, and (2) the injured worker was suffering a disability to compete in the open labor market immediately prior to the subsequent injury. (See Franklin v. Workers' Comp. Appeals Bd. (1978) 79 Cal.App.3d 224.) Terry Mejia v. Workers' Compensation Appeals Board, Head Start Child Development. 4 WCAB Rptr. 10,303

APPORTIONMENT– Combined effects of two or more injuries– Labor Code §3208.3– When disability results from the combined effects of two or more injuries, all questions of fact and law shall be separately determined with respect to each injury including the apportionment between such injuries of liability for disability benefits. [In this case, the orthopedic injuries were separate and distinct from the psychological injuries, and as such, the ratings on each should be made separately from the other.] Southern California Edison v. Workers' Compensation Appeals Board (Richard Bowen) 4 WCAB Rptr. 10,303

APPORTIOMENT– Pre-existing disability– Labor Code §4750– Apportionment of pre-existing disability or impairment requires a showing that a pre-existing condition existed that would have been ratable under the rating schedule. (See King v. Workers' Comp. Appeals Bd. (1931) 231 Cal.App.3d 640.) [In this case, to apportion a psychological injury the medical evidence must show such things as a previous permanent disability rating, notations of specific loss of function, pre-existing work restrictions or complaints by the employee of inability to perform work tasks prior to the injury. (See generally, Distler v. Workers' Comp. Appeals Bd. (1982) 131 Cal.App.3d 803.)] Southern California Edison v. Workers' Compensation Appeals Board (Richard Bowen) 4 WCAB Rptr. 10,303

APPORTIONMENT– Prior injury or disability– Labor Code §4750– The defendant has the burden of proof on the issue of apportionment. To apportion pursuant to Labor Code §4750, the defendant must show: (1) there was a previous permanent disability or physical impairment, and (2) the injured worker was suffering a disability to compete in the open labor market immediately prior to the subsequent injury. (See Franklin v. Workers' Comp. Appeals Bd. (1978) 79 Cal.App.3d 224.) Terry Mejia v. Workers' Compensation Appeals Board, Head Start Child Development. 4 WCAB Rptr. 10,287

APPORTIONMENT– Two or more injuries causing successive permanent disabilities– When two or more injuries cause successive permanent disabilities that can be separated, the percentage of disability caused by each injury is determined, and the employer at the time of the injury is liable for the number of weeks of permanent disability indemnity provided by Labor Code §4658 for that percentage of disability. (See Fuentes v. Workers' Comp. Appeals Bd. (1976) 16 Cal.3d 1.) If however, successive injuries to the same part of the body cause permanent disability that cannot be separated, because the injuries became permanent and stationary at the same time, the applicant is entitled to an award based on the combined disability. (See Wilkinson v. Workers' Comp. Appeals Bd. (1977) 19 Cal. 3d. 491.) William J. Fitzgerald v. Workers' Compensation Appeals Board, United Airlines. 4 WCAB Rptr. 10,268

APPORTIONMENT– Pre-existing Condition– Labor Code §4663– Apportionment is allowed for a previous permanent disability or physical impairment only if it is established that the previous condition was actually labor disabling. (See Rootenberg & Getz v. Workers' Comp. Appeals Bd. (1979) 94 calapp 3d 265.) [In this case, the treating physician found the applicant was asymptomatic prior to her industrial injury.] Alistar Insurance Company, Inc., v. Workers' Compensation Appeals Board (Alexandra Wardwell) 4 WCAB Rptr. 10,253

APPORTIONMENT– Labor Code §4663– Apportionment to the normal progress of a preexisting condition can be made if that disease would have progressed to a disabling point by the time of injury and regardless of the industrial injury. (See Franklin v. Workers' Comp. Appeals Bd. (1978) 79 Ca.App.3d 224.) [In this case, the treating physician's testimony supported and confirmed the WCJ's decision that a portion of applicant's disability was attributable to severe osteoarthritis which was a naturally progressing non-industrial condition.] Julia Elwood v. Workers' Compensation Appeals Board, State of California General Services Administration. 4 WCAB Rptr. 10,238

APPORTIONMENT– Labor Code §4750– To justify apportionment under Labor Code §4750, there must be evidence of pre-existing disability upon which an award of permanent disability could have been made had that disability been industrial caused. Specifically, the disability must have been a ratable permanent disability. (See Franklin v. Workers' Comp. Appeals Bd. (1978) 79 Cal.3d 229.) Haynes Plumbing & Maintenance v. Workers' Compensation Appeals Board (Brian Darbyshire) 4 WCAB Rptr. 10,189

APPORTIONMENT– Labor Code §4663– To justify apportionment under Labor Code §4663, the medical opinion upon which apportionment is based must establish that the injured worker would have suffered a permanent disability as a result of the normal progress of a non-industrial injury. (See Zemke v. Workers' Comp. Appeals Bd. (1968) 68 Cal.2d 394.) Haynes Plumbing & Maintenance v. Workers' Compensation Appeals Board (Brian Darbyshire) 4 WCAB Rptr. 10,189

APPORTIONMENT– Labor Code §4750– To apportion pursuant to Labor Code §4750, there must be evidence of a preexisting condition that is in fact labor disabling prior to the occurrence of the industrial injury in question, i.e., there mus have been disability which would have been ratable had it been industrially caused. (See Ditler v. Workers' Comp. Appeals Bd. (1982) 131 Cal.App.3d 803.) The fact that the preexisting disability did not interfere with the particular occupation in which the worker was engaged will not prevent apportionment. (See Robinson v. Workers' Comp. Appeals Bd. (1981) 114 Cal.App.3d 593.) Bette Zimmer v. Workers' Compensation Appeals Board, Barton Memorial Hospital. 4 WCAB Rptr. 10,172

APPORTIONMENT– Overlapping injuries– When two disabilities arise from successive injuries, the Board must determine whether the disabilities overlap, i.e., when factors of disability resulting from an industrial injury includes factors of disability of work limitations resulting from an earlier injury, the disabilities are said to "overlap." For example, when an injury results in the amputation of a leg having a permanent disability in the ankle, the rating of the loss of the leg is properly reduced by the amount of permanent disability in the ankle. (See Gardner v. Industrial Acc. Comm. (1938) 28 Cal.App. 2d. 682.) Bette Zimmer v. Workers' Compensation Appeals Board, Barton Memorial Hospital. 4 WCAB Rptr. 10,172

APPORTIONMENT– Based on the medical reports and testimony of the treating physician two cumulative injuries become permanent and stationary at the same time. Under the principles of Wilkenson v. Workers' Comp. Appeals Bd. (1977) 19 Cal.App.3d 491, applicant was entitled to one rating of 57%. The treating physician found that all of applicant's increase in disability was due to the second continuous trauma and not due to applicant's prior injury which resulted in an award of 18.5% and it was proper to give defendant credit for the actual money paid to applicant under the prior award. Mitsui Sumitomo Insurance Group v. Workers' Compensation Appeals Board (Betty Parsons) 4 WCAB Rptr. 10,124

APPORTIONMENT– Labor Code §4750– To justify apportionment under Labor Code §4750, the medical opinion upon which the apportionment is based must state that the injured workers had actual permanent disability pre-existing the industrial injury, and must describe the exact nature of the pre-existing disability and the basis of the opinion. (See Pullman Kellogg v. Workers' Comp. Appeals Bd. (Normand) (1980) 26 c.3d 450.) [In this case, the physician's analysis of "50% of her disability to pre-industrial injury, non-industrial factors, and 50% to the industrial aggravation" did not justify apportionment under Labor Code §4750 insofar as applicant had no recorded or opined actual pre-existing disability.] AT&T v. Workers' Compensation Appeals Board (Karen Crouse) 4 WCAB Rptr. 10,124

APPORTIONMENT– Labor Code §4750– Pre-existing disability– An employee who is suffering from a previous permanent disability or physical impairment and sustains permanent injury thereafter shall not receive from the employer compensation for the later injury in excess of the compensation allowed for such injury when considered by itself and not in conjunction with or in relation to the previous disability or impairment. The employer is liable to the extent that the industrial injury accelerates or aggravates or lights up the pre-existing condition. Apportionment may not be made to pathology or causative factors; only disability may be apportioned. (See Pullman Kellogg v. Workers' Comp. Appeals Bd. (Normand) (1980) 26 Cal. 3d 450.) Interim Healthcare v. Workers' Compensation Appeals Board (Mary Davis) 4 WCAB Rptr. 10,073

APPORTIONMENT– Labor Code §4750– An injured worker can be found to be rehabilitated from a prior permanent disability, if he is give a work restriction and found not to be capable of returning to his former work, but ignores the restriction and continues to perform his job duties. [In this case the applicant continued to perform heavy labor for at least five years after his stipulated award without seeking any medical treatment. Yellow Freight System, Incorporated v. Workers' Compensation Appeals Board (Mark Chavira) 4 WCAB Rptr. 10,046

APPORTIONMENT– Labor Code §4750– Disability can pre-exist an injury even when that disability does not necessarily interfere with an employee's ability to work at their employment as long as the job they worked was conducive with their disability. (See Franklin v. Workers' Comp. Appeals Bd. (1978) 79 Cal.App.3d 24.) Donna Stewart v. Workers' Compensation Appeals Board, Beeson, Tayer & Bodine. 4 WCAB Rptr. 10,043

APPORTIONMENT– Labor Code §4750– Pre-existing disability can be proven by treatment to the same part of the body before an industrial injury. (See Ditler v. Workers' Comp. Appeals Bd. (1982) 131 Cal.App.3d 803.) [In this case, the applicant was undergoing epidural injections into her back just prior to her industrial injury and had a total knee replacement 2 years before the injury. The treating physician's preclusion from heavy work was not a retroactive prophylactic restriction but was instead qualifying the degree of disability that applicant's earlier injuries resulted in based on reasonable medical probability.] Donna Stewart v. Workers' Compensation Appeals Board, Beeson, Tayer & Bodine. 4 WCAB Rptr. 10,043

APPORTIONMENT– Labor Code §4750– If an employee is suffering from previous permanent disability and claims additional permanent disability from a later injury, the employer is liable only for compensation to such employee for the portion due to the later injury. (See Dow Chemical v. Workers' Comp. Appeals Bd. (1967) 67 Cal.2d. 483.) James Jensen v. Workers' Compensation Appeals Board, N&J Trucking. 3 WCAB Rptr. 10,364

APPORTIONMENT– Under both Labor Code section 4750 and 4663, it is the disability resulting from the nonindustrial condition rather than the cause of the condition or pathology that is the proper subject of apportionment. (See Pullman Kellogg v. Workers' Comp. Appeals Bd. (Normand) (1980) 26 Cal.3d 450.) [In this case, the apportionment by the QME's was not based on the existence of actual labor disablement prior to applicant's industrial injury but was based on an impermissible retroactive work restriction.] Gloria Aparicio v. Workers' Compensation Appeals Board, Kim Lighting. 3 WCAB Rptr. 10,363

APPORTIONMENT– Labor Code §4663– Although a non-industrial disease arose concurrent with the applicant's cumulative trauma injury, it can be the basis for apportionment under Labor Code §4663. The evidence in this case reflects the attempted apportionment failed to meet correct legal standards since the Agreed Medical Examiner could not state without guessing or speculating when the applicant would have experienced disability absent the industrial exposure. (See Pullman Kellogg v. Workers' Comp. Appeals Bd. (Normand) (1980) 26 Cal.3d 450.) Shirley Durham v. Workers' Comp. Appeals Bd., Pacific Bell. 3 WCAB Rptr. 10,341

APPORTIONMENT– Effect of later non-industrial injury–An employee who has sustained a compensable injury and has subsequently sustained an unrelated non-compensable injury, shall not receive permanent disability indemnity for any permanent disability caused solely by the subsequent event. The subsequent event must have been a non-compensable injury not merely a "condition." Fresno Unified School District v. Workers' Compensation Appeals Board (Yvonne Tatum) 3 WCAB Rptr. 10,277

APPORTIONMENT– Labor Code §4750– Under the rule established in Wilkinson v. Workers' Comp. Appeals Bd. (1977) 19 Cal.3d 491, successive injuries to the same body part, with the same employer, and which become permanent and stationary at the same time, can be rated as if they were from a single industrial accident. If the disabilities can be separately rated, the Wilkinson rule does not permit the combing of permanent disabilities from different injuries to different parts of the body. (See Parker v. Workers' Comp. Appeals Bd. (1992) 9 Cal.App.4th 1636.) Moises Solis v. Workers' Compensation Appeals Board, Westra Farms. 3 WCAB Rptr. 10,277

APPORTIONMENT– Labor Code §4663– When apportionment is related to the natural progression of a pre-exiting disseae, there must be medical evidence that the disease process would have been disabling by the time the industrial condition becomes permanent and stationary. [In this case, the applicant's degenerative arthritis condition was not disabling at the time the applicant's industrial injury became permanent and stationary.] (See Zemle v. Workers' Comp. Appeals Bd. (1968) 68 Cal.2d 394.) City of Newport Beach v. Workers' Compensation Appeals Board (Thomas J. Jacquot) 3 WCAB Rptr. 10,276

APPORTIONMENT– Labor Code §4750– There must be evidence of a preexisting condition that is in fact labor disabling prior to the occurrence of the industrial injury in question, that there must have been disability which would have been ratable had it been industrially caused. (See Ditler v. Workers' Comp. Appeals Bd. (1982) 131 Cal.App.3d 803.) David Raita v. Workers' Compensation Appeals Board, Santa Barbara County Hospital. 3 WCAB Rptr. 10,276

APPORTIONMENT– Labor Code §4663– When apportionment is related to the natural progression of a pre-exiting disseae, there must be medical evidence that the disease process would have been disabling by the time the industrial condition becomes permanent and stationary. [In this case, the applicant's degenerative arthritis condition was not disabling at the time the applicant's industrial injury became permanent and stationary. (See Zemle. v Workers' Comp. Appeals Bd. (1968) 68 Cal.2d 394.) City of Newport Beach v. Workers' Compensation Appeals Board (Thomas J. Jacquot) 3 WCAB Rptr. 10,276

APPORTIONMENT– Labor Code §4663– While it is not necessary that the preexisting condition or disease be symptomatic and disabling at the time of the industrial injury, it is sufficient that the non-industrial disability would have occurred at some indefinite future date. (Gay v. Workers' Comp. Appeals Bd. (1979) 96 Cal.App.3d 555.) In addition, to justify apportionment to the natural progression of a pre-existing condition or disease, the medical evidence must disclose the facts relied upon and the reasoning behind the opinion that the applicant's progressive disease or condition would have become disabling even in the absence of the industrial injury. (See Zemke v. Workers' Comp. Appeals Bd. (1968) 68 Cal.2d 794.) David Raita v. Workers' Compensation Appeals Board, Santa Barbara County Hospital. 3 WCAB Rptr. 10,276

APPORTIONMENT– Labor Code §4663 enacted by SB 899– The rules of apportionment of permanent disability following the enactment of SB 899 changed or even eliminated liability for compensation where permanent disability is caused by a prior non-disabling condition. National Staff Network v. Worker's Compensation Appeals Board (Evelyn Mann-Harrison) 7 WCAB Rptr. 10,356 ___Cal.App.4th___

APPORTIONMENT– Labor Code §4750– The clear intent of the Legislature when enacting Labor Code §4750 was that the liability of one who employees a previously disabled worker, shall in the event of a subsequent injury, be limited to the percentage of the over-all disability resulting from the later harm considered alone as if it were the original injury. (See Fuentes v. Workrs Comp. Appeals Bd. (1976) 16 Cal.3d. 1.) Raymond Ramirez v. Workers' Compensation Appeals Board, Consolidated Freightways. 3 WCAB Rptr. 10,275

APPORTIONMENT– When two separate cumulative traumas are claimed based on two separate periods of disability, the claims do not result in separate injury claims unless the injuries are separated by a break in medical treatment. (See Western Growers Insurance Company v. Workers' Comp. Appeals Bd. (Austin) (1993) 16 Cal.App.4th 227.) California Insurance Guaranty Association v. Workers' Compensation Appeals Board (William Wilson) 3 WCAB Rptr. 10,272

APPORTIONMENT– Pre-existing disability– Labor Code §4750– The appropriate inquiry for a pre-existing permanent disability for purposes of apportionment under Labor Code §4750 is not whether there was an actual permanent disability determined or awarded before the injury both rather whether it can be demonstrated by competent evidence that there was a previous permanent impairment. (See Franklin v. Workers' Comp. Appeals Bd. (1978) 79 Cal.App.3d 224,) E.J. Gallo Winery v. Workers Compensation Appeals Board (Celia Leonard) 3 WCAB Rptr. 10,246

APPORTIONMENT– Pre-existing condition– Labor Code § 4750– In this case, the injured worker had a congenital hip condition that had been surgically repaired. Following an industrial injury to the ankle, the WME imposed a "prophylactic preclusion" for the hip to prevent injury to the congenital condition. Despite the fact that the pre-existing condition, for which the prophylactic restriction was imposed, was not affected by the industrial injury, the prophylactic restriction was apportioned to the effects of the industrial injury. E.J. Gallo Winery v. Workers' Compensation Appeals Board (Patricia Bryan) 3 WCAB Rptr. 10,206

APPORTIONMENT– Pre-existing disability– Labor Code §4750– The AME's opinion constituted legal apportionment since it clearly stated that applicant had a pre-existing disability, described the exact nature of the pre-existing disability and setforth the reasoning on which the medical opinion was based. (See Ditler v. Workers' Comp. Appeals Bd. (1982) 131 Cal.App. 3d 803, Callahan v. Workers' Comp. Appeals Bd. (1978) 85 Cal.App.3d 621.) Rosemary Gutirrez v. Workers' Compensation Appeals Board. 3 WCAB Rptr. 10,191

APPORTIONMENT– Pre-existing disability– Labor Code §4663– To support apportionment for a pre-existing potential for allergic reaction to alcohol and other substances, there must be a substantial medical opinion that applicant on the date of injury had a pre-existing disability or condition, that even absent the industrial injury would have caused applicant a certain amount of disability. Southern California Permante Medical Group v. Workers' Compensation Appeals Board (Grace Lin) 3 WCAB Rptr. 10,188

APPORTIONMENT– Labor Code §4750– Pre-existing disability– An employer of a worker who has a permanent physical impairment and who thereafter sustains a compensable injury resulting in permanent disability, is not liable for compensation for the ensuing combined disabilities, but only for that portion of permanent disability which is caused by the last injury. The purpose of this statutory provision is to encourage the employment of physically disabled persons by assuring an employer that he will not be liable for the total combined disability present after an industrial injury, but only for that portion which is attributable to the subsequent industrial injury. (See State Compensation Insurance Fund v. Industrial Acc. Com. (Hutchinson) (1963) 59 Cal.2d 45.) Hoag Memorial Hospital v. Workers' Compensation Appeals Board (Otilia Rodriguez) 3 WCAB Rptr. 10,174

APPORTIONMENT– Labor Code §4750– No apportionment of permanent disability may be made merely because of the existence of a disease or pathologic condition that was asymptomatic and did not cause "labor disablement" before the industrial injury. (See Ferguson v. Industrial Acc. Com., (1958) 50 C.2d 469. Apportionment under Labor Code §4750 requires a showing that there was a pre-existing condition that interfered with or would have interfered with work activity. (See Franklin v. Workers' Comp. Appeals Bd. (1978) 79 Cal.App.3d 224.) County of Riverside v. Workers' Compensation Appeals Board (Dandyce Mills) 3 WCAB Rptr. 10,174

APPORTIONMENT– Labor Code §4750– Pre-existing disability– An employer of a worker who has a permanent physical impairment and who thereafter sustains a compensable injury resulting in permanent disability, is not liable for compensation for the ensuing combined disabilities, but only for that portion of permanent disability which is caused by the last injury. The purpose of this statutory provision is to encourage the employment of physically disabled persons by assuring an employer that he will not be liable for the total combined disability present after an industrial injury, but only for that portion which is attributable to the subsequent industrial injury. (See State Compensation Insurance Fund v. Industrial Acc. Com. (Hutchinson) (1963) 59 Cal.2d 45.) Hoag Memorial Hospital v. Workers' Compensation Appeals Board (Otilia Rodriguez) 3 WCAB Rptr. 10,174

APPORTIONMENT– This case involved an earlier specific injury case which was settled and a later continuous trauma case which went to trial. It was proper for the WCJ to allow the remaining defendants a credit against future medical for only that portion of the settled case for which the applicant received money specifically for future care. This would avoid any double recovery by the applicant. (See Sherbank v. Workers' Comp. Appeals Bd. (1986) 51 Cal.Comp.Cases 504; Granado v. Workers' Comp. Appeals Bd. (1968) 69 C.2d 399.) Big T's Mechanical Repair v. Workers' Compensation Appeals Board (Jack Deen) 3 WCAB Rptr. 10,173

APPORTIONMENT– Pre-existing condition– Labor Code §4663– An underlying personality disorder may form the basis for apportionment of permanent disability pursuant to Labor Code §4663 if a physician can specify whether any part of the injured worker's current level of permanent disability would exist as a result of the normal progression of the pre-existing condition, had the industrial injury not occurred. (See Pullman Kellogg v. Workers' Comp. Appeals Bd. (Normand) (1980) 26 Cal.3d 450.) Alice Mucelroy v. Workers' Compensation Appeals Board, City of Fresno. 3 WCAB Rptr. 10,157

APPORTIONMENT– Pre-existing condition– Labor Code §4663– The fact that the pre-existing condition was neither symptomatic and not disabling does not preclude apportionment under Labor Code §4663. (See Callahan v. Workers' Comp. Appeals Bd. (1978) 85 Cal.App.3d 621.) Alice Mucelroy v. Workers' Compensation Appeals Board, City of Fresno. 3 WCAB Rptr. 10,157

APPORTIONMENT– Labor Code § 4750– To determine apportionment under Labor Code §4750, there must be evidence of pre-existing disability upon which an award of permanent disability could have been made had that disability been industrially caused. (See Franklin v. Workers' Comp. Appeals Bd. (1978) 79 Cal.3d 229) Metropolitan Water District v. Workers' Compensation Appeals Board (Jose Mercado) 3 WCAB Rptr. 10,142

APPORTIONMENT– Labor Code §4663– With respect to Labor Code §4663, the medical opinion upon which apportionment is based must establish an aggravation of a non-industrial condition or that the inured worker would have suffered a permanent disability as a result of the normal progress of a non-industrial condition even in absence of the industrial injury. (See Zemke v. Workers' Comp. Appeals Bd. (1968) 68 Cal.2d 394.) Metropolitan Water District v. Workers' Compensation Appeals Board (Jose Mercado) 3 WCAB Rptr. 10,142

APPORTIONMENT– Labor Code § 4663– Apportionment for apportionment of a naturally progressive disease requires the defendant to prove: (1) the progressive disease process pre-existed the compensable injury, (2) the progressive disease would have become disabling even absent the industrial injury, (3) the underlying disease process would have become disabling at a definite, ascertainable time and (4) the forgoing elements must be established by a medical opinion which is legally sufficient and reasonably probable. (See Pullman Kellogg v. Workers. Comp. Appeals Bd.(Normand) (1980) 26 Cal.3d 450.) Ronald Burgess v. Workers' Compensation Appeals Board, City of Long Beach. 3 WCAB Rptr. 10,140

APPORTIONMENT– Labor Code §4663– Apportionment for a pre-existing condition is proper when the medical evidence supports a finding that the apportioned disability is the result of the natural progression of a pre-existing, non-industrial injury and that such non-industrial disability would have occurred in the absence of the industrial injury. (See King v. Workers' Comp. Appeals Board (1991) 231 Cal.App. 3d 1640.) George Klump v. Workers' Compensation Appeals Board, The Archdiocese of Los Angeles. 3 WCAB Rptr. 10,078

APPORTIONMENT– Labor Code §4750– In this case, substantial evidence supported the finding that applicant had no prior disability within the meaning of Labor Code §4750. The applicant sustained both a continuous trauma injury and a specific injury and both injuries became permanent and stationary at the same time thus warranting a rating of permanent disability based on Wilkinson v. Workers Comp. Appeals Bd. (1977) 19 Cal.3d 491. City of Covina v. Workers' Compensation Appeals Board (Daniel Alvarez) 3 WCAB Rptr. 10,078

APPORTIONMENT– Labor Code §4750– In this case, substantial evidence supported the finding that applicant had no prior disability within the meaning of Labor Code §4750. The applicant sustained both a continuous trauma injury and a specific injury and both injuries became permanent and stationary at the same time thus warranting a rating of permanent disability based on Wilkinson v. Workers Comp. Appeals Bd. (1977) 19 Cal.3d 491. City of Covina v. Workers' Compensation Appeals Board (Daniel Alvarez) 3 WCAB Rptr. 10,061