Although Labor Code §4663 puts the duty on the QME to determine percentages of causation as between multiple causes of disability, it’s sometimes speculation to express such an opinion by the evaluating physician for a variety of reasons (for example, the QME simply does not have enough information to support an opinion that rises to the level of “reasonable medical “probability”). In this circumstance, the employer has failed in its burden of proof regarding “apportionment,” and it has been determined that a single permanent disability outcome against an employer can be awarded by merging multiple industrial injuries. In the Benson decision, the California Court of Appeal stated in relevant part,
There may be limited circumstances… when an evaluating physician cannot parcel out with reasonable medical probability the percentages to which each distinct industrial injury causally contributed to the employee’s overall permanent disability. In such circumstances, where the employer has failed to meet its burden of proof, a combined award of permanent disability may still be justified. (Benson v WCAB 170 Cal. App. 4th 1560).
If you have experienced a combined permanent disability outcome and looking for a trusted workers’ compensation attorney in Northern California, contact The Law Office of John Bloom. Mr. Bloom has specialized in advocating for claimants injured on the job. Call him at (707) 524-1144.