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Fresno Unified School Dist. v. Workers' Compensation Appeals Board11/22/2000
e would insure the application of prevailing rules about apportionment to both pre-existing and subsequent disabilities. (See Sen. Republican Caucus Analysis, Assem. Bill No. 1987 (1983-1984 Reg. Sess.) Aug. 30, 1983; Sen. Democratic Caucus, Analysis, Assem. Bill No. 1987 (1983-1984 Reg. Sess.) Sept. 1, 1983; Analysis of Assem. Bill No. 1987, Sen. Com. on Industrial Relations (1983-1984 Reg. Sess.) July 6, 1983.) FUSD has not explained why the outcome it proposes is compelled and has not called anything to our attention which shows the Legislature sought to bring about such a counterintuitive result.
4. Conclusion
The WCJ rated Humphrey's disability from his specific back injury and his cumulative back injury at 71 percent. FUSD does not challenge this rating other than to say it is subsumed by the later cardiac disability. Thus, even if Humphrey's disability from the heart attack is rated at 100 percent, only 29 percent can be said to be "solely" from the event and not compensable under section 4750.5. Because the injury giving rise to the second disability was not industrial, Humphrey cannot, and is not, receiving compensation for it. However, as stated in Dr. Holmboe's March 30, 1999 report, even if Humphrey had never had the heart attack he would have been partially disabled as a result of his cervical and lumbar pathology. In other words, the 71 percent of Humphrey's total disability was not "solely" the result of the cardiac injury. He is entitled to receive, and is receiving, compensation for this level of disability. For these reasons, the WCJ's decision was correct even though we read Ashley, and construe section 4750.5, differently than did the WCJ.
5. Other Considerations
Though unnecessary to our decision, we note that, even if we adopted FUSD's interpretation of section 4750.5, we would still affirm the WCJ's decision because FUSD failed to meet its burden to prove the proper apportionment.
Under the law governing workers' compensation claims and benefits, the employer must present substantial evidence to support its proposed apportionment. (Pullman Kellogg v. Workers' Comp. Appeals Bd., supra, 26 Cal.3d at p. 454.) This evidence must address all the factors required to be considered in determining disability under the workers' compensation scheme, and any expert opinion must relate the facts to the legal principles governing apportionment set out in the relevant law. (Martins v. Workers' Comp. Appeals Bd., supra, 40 Cal.App.4th 1090, 1094.) On this subject, the leading commentator has stated:
"Any [expert medical opinion] must show that the physician rendering the opinion was sufficiently familiar with the employee's preinjury condition, and must explain how apportionment was applied to that condition so that the Appeals Board may ascertain if the correct legal principles are being applied." (1 Hanna, Cal. Law of Employee Injuries and Workers' Compensation, supra, ยง 8.05 , pp. 8-21 - 8-22, emphasis added.)
Petitioner relied upon Dr. Woo's letter of March 1, 1999, and Dr. Holmboe's response to support its argument that Humphrey was 100 percent disabled by the heart attack, a disability which, according to FUSD, submerged the existing work-related disabilities of 71 percent. However, Dr. Woo's letter does not constitute sufficient evidence of any degree of disability for purposes of apportionment.
Dr. Woo wrote that Humphrey was "totally disabled" and unable to perform "any type of physical labor." The letter is brief and concise, admirable by E.B. White standards but falling short of providing the requisite evidentiary showing. The letter contains no discussion of the nature of the restrictions
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