WCAB panel reversed WCJ and found 50% apportionment to pre-existing chondromalacia following total knee replacement. [The panel did not discuss Kien (2006) 34 CWCR 228 in which there was no apportionment because no degenerative arthritis remained after the knee replacement]

Sallay v. Macy’s West (2007) 35 CWCR 189 (WCAB)


AME’s apportionment of 25% to back PD to DDD complies w/ Escobedo, per WCAB

Leung v. WCAB (2006) 71 CCC 437 (CA 1st -  wd)

AME’s apportionment of 40% of back PD to DDD complies w/ Escobedo per WCAB

San Diego Transit v. WCAB (2006) 72 CCC 45 (CA 4th - wd)

50% apportionment of LB PD to spondylolisthesis DN pass Escobedo test

Gallo Sales Co. v.  WCAB (Lauritson) (2006) 71 CCC 635 (CA 6th -wd)

AME Alban failed to pass Escobedo test in stating that he would apportion 1/3 to degenerative changes, 1/3 to specific injury and 1/3 to CT injury, w/o explaining how or why the degenerative changes were responsible for 1/3 of app’s disability.

Yellow Transportation Inc v. WCAB (Hols) (2006) 71 CCC 1473 (CA 4th-wd)


25% apportionment to pre-existing pathology rejected b/c doctor failed to explain how pathology caused disability or how doctor picked 25%.

Fry’s Electronics v. WCAB   (2006) 72 CCC 131 (CA 6th-wd)


75% apportionment of LB disability to “tumor necrosis alpha factor” in discs invalid b/c industrial injury caused disc tear and the tear caused the disability.

Sierra Bible Church v. WCAB (Clink) (2007)  35 CWCR 49, 72 CCC 20 (CA 5th-non-pub)

50%   apportionment of LB PD to osteopenia meets Escobedo standard

Marsh v. WCAB (2007) 35 CWCR 87 (CA 5th non pub)

In a decision by Cueno and Brass w/ Caplane dissenting, the panel refused to follow Steinkamp and allowed 25% apportionment of hip PD even though the hip surgery removed the osteonecrosis, which was the Aother factor@ contributing to the need for surgery and PD.

Malcolm v. CNA Ins. Group (2008) 36 CWCR 176 (WCAB)


Court of Appeal agreed with WCAB in the above case:  25% apportionment to pre-existing osteonecrosis in L shoulder and R hip supported by AME opinion because osteonecrosis does not progress due to trauma (in this case, 2 specific injuries, but no CT).  Hip replacement surgery DN preclude apportionment b/c although pathology no longer present after surgery, disability was due to pain and limitation resulting from the surgery.

Malcom v. WCAB (2008) 73 CCC 1710 (CA 2nd – wd)


Disagreeing with both Steinkamp and Kien, the CA held that 50% of PD following bilateral knee replacement was due to pre-existing osteoarthritis because it contributed to the need for surgery and it does not matter that it was removed during the surgery.

Gunter v. WCAB (2008) 73 CCC 1699 (CA 3rd – wd)


In knee replacement case, 50% non-industrial apportionment upheld, based largely on fact that medical evidence before this industrial injury showed need for knee replacement.

Williams v. WCAB (2008) 74 CCC 88 (CA 1st – wd)


Ok to apportion 60% of TPD to non-industrial pulmonary condition which was not disabling before I/W fell from scaffold.

Mills v. WCAB (2008) 36 CWCR 138 (CA 5th-non pub)

Finding of no apportionment must be remanded for further medical evidence from the AME who had opined that if Employer takes the employee as she is found, there is no apportionment, but if he were to apportion to the cause of disability, 90% was caused by degenerative disease.  AME must also address the cumulative claim which was filed after the AME last evaluation.

Beck v. CNA Casualty  (2007)  35  CWCR  296  (WCAB)

After WCAB awards weekly indemnity at 100% PD rate in case involving amputation of both legs, but defers issue of disability as temporary or permanent,  Court of Appeal reverses, holding that status of TD vs. PD must be determined in order to apply apportionment rules of SB 899.

Lindsay District Hospitals v. WCAB (Fuller) (2005) 33 CWCR 184 (CA 5th – non pub)