Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDINGS; petition for writ of review.
Adelson, Testan, Brundo & Jimenez and Daniel Levi Stephens for Petitioner.
No appearance for Respondent Workers’ Compensation Appeals Board.
Law Offices of Carl C. Partlow and Carl C. Partlow for Respondent Bernadette Goodin.
OPINION
HOLLENHORST, Acting P. J.
INTRODUCTION
In this matter, respondent Workers’ Compensation Appeals Board (Board) found respondent and applicant Bernadette Goodin (Applicant) to be 100 percent disabled due to respiratory problems stemming from asthma. It is not disputed here that Applicant is disabled; whether some of her disability should be apportioned to nonindustrial causes is in dispute. The workers’ compensation judge (WCJ) found no apportionment to be appropriate and it is this element of the award that petitioner Continental Casualty challenges. We find this was error and will annul the order.
But see footnote 6.
STATEMENT OF FACTS
Applicant, born in 1957, worked at a nursing home operated by petitioner’s insured from November 1997 until October 2002. She was primarily employed in the laundry facility and was exposed to fumes and chemicals from soaps, bleach, disinfectant, ammonia from soiled bedding, smoke residue after a fire, and possibly mildew. She had no history of patent respiratory problems before beginning to work at the facility, but symptoms (such as shortness of breath and coughing) began in the middle of 1998, shortly after she began smelling what she believed to be mildew from a leak in the laundry wall. The symptoms progressed to the point where she could no longer work due to chronic and severe airway obstruction.
The only evidence on the question of whether Applicant’s disability was, or was not, solely attributable to her employment exposure came from the reports of Dr. Ernest Levister. His initial report contained the results of sensitivity testing involving naturally-occurring substances, which revealed that Applicant had a “low” response to numerous plant-based allergens as well as “dog,” “cockroach mix,” and “mite.” She also showed a “moderate” response to six substances including cats, cocklebur, and cladosporium. The report also noted Applicant’s sporadic history of smoking.
That is, nonchemical and plant or animal derived.
The testing scale apparently commences with “very low.”
Dr. Levister again examined and tested Applicant about two years later. The results were similar except that her only “moderate” response was to “cockroach mix” and some of her other sensitivities (such as “dog” and “candida”) had lessened. His analysis commented that “[w]hat we have seen unfolding is a blend of personal, i.e., smoking and inhalant allergens, with industrial exposure in an enclosed environment... which have impacted upon her airways.... I would apportion 60% of her residual disability... to personal non-industrial factors. I would apportion 40% to causation occurring on the job.”
Dr. Levister later issued reports in 2007 in which he apparently repeated his opinion on apportionment, and added that he had so concluded in “his best medical judgment.” These reports are not part of the record but are cited in the WCJ’s “Report and Recommendation on Petition for Reconsideration,” and we will assume that they do contain the quoted language.
At his deposition, Dr. Levister testified that exposure to substances such as bleach, disinfectant, and ammonia could have “aggravated” Applicant’s condition. In finding Applicant to be 100 percent disabled with no apportionment, the WCJ expressed the view that Dr. Levister had failed adequately to explain how he had reached the figures of “60-40” in apportioning Applicant’s disability to nonindustrial and industrial causes. “Why not 40% non-industrial, 60% industrial? Why not 50-50 or some other proportion? He offered no explanation whatsoever.” The WCJ was also clearly skeptical of the proposition that Applicant’s measured susceptibilities to nonindustrial inhalant allergens (e.g., “cockroach mix”) could have had a more powerful effect than her exposure to harsh chemicals. Accordingly, she refused to apportion disability, leaving the employer and petitioner responsible for the entirety of Applicant’s disability. After reconsideration proceedings below, which did not alter this element of the award, petitioner sought relief in this court. We issued a writ of review.
DISCUSSION
“Apportionment is the process employed by the Board to segregate the residuals of an industrial injury from those attributable to... nonindustrial factors, in order to fairly allocate the legal responsibility.” (Ashley v. Workers’ Comp. Appeals Bd. (1995) 37 Cal.App.4th 320, 326 (Ashley).) With respect to an award for permanent disability, the employer will only be responsible for the amount proportional to the contributory effect of the employment. (Lab. Code, § 4663.) Pursuant to legislation enacted in 2004, “[i]n order for a physician’s report to be considered complete on the issue of permanent disability, the report must include an apportionment determination.” (Lab. Code, § 4663, subd. (c).) “The physician must arrive at his opinion to a ‘reasonable medical probability’ and not on ‘surmise, speculation, conjecture, or guess.’” (Andersen v. Workers’ Comp. Appeals Bd. (2007) 149 Cal.App.4th 1369, 1381 (Andersen), citing Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 620-621 (Escobedo).) However, the fact that “the percentages [that are] provided are approximations that are not precise and require some intuition and medical judgment... does not mean [the] conclusions are speculative.” (Andersen, at p. 1382.)
Although not binding on this court, decisions of the Board are entitled to substantial weight unless clearly erroneous. (See Ralphs Grocery Co. v. Workers’ Comp. Appeals Bd. (1995) 38 Cal.App.4th 820, 828.)
On the issue of apportionment, the burden is on the employer to show that apportionment is appropriate. (Pullman Kellogg v. Workers’ Comp. Appeals Bd. (1980) 26 Cal.3d 450, 455-456; Ashley, supra, 37 Cal.App.4th at p. 326.) With respect to the percentage of apportionment, the burden is on the employee to show the proportion of industrial causation, but on the employer to show the proportion of nonindustrial causation. (Escobedo, supra, 70 Cal.Comp.Cases at p. 607.)
Although our review of Board decisions is limited in scope, if a decision is not supported by substantial evidence it is subject to annulment by the courts. (Lab. Code, § 5952, subd. (d).) The term “substantial evidence” has the same meaning it does in other legal contexts—that is, evidence which is “credible, reasonable, and of solid value, which a reasonable mind might accept as probative on the issues and adequate to support a conclusion.” (Zenith Ins. Co. v. Workers’ Comp. Appeals Bd. (2008) 159 Cal.App.4th 483, 490.)
Strictly speaking, we are not called upon in this case to determine whether Dr. Levister adequately set out a factual or medical explanation for his determination that Applicant’s disability should be apportioned 60 percent to nonindustrial causes, primarily her sensitivity to nonindustrial allergens. (Cf. Andersen, supra, 149 Cal.App.4th 1369 [the Board accepted the medical opinion on apportionment and the issue was whether the report constituted substantial evidence].) In reviewing the decision of the Board, technically we need only determine whether substantial evidence supports the finding that no apportionment was appropriate. We think it is clear that this decision was not tenable.
The only evidence in the record concerning the causative factors of Applicant’s pulmonary disability came from Dr. Levister’s reports. He tested her and set out the results showing sensitivity to various natural allergens. He also noted the exacerbating effects of industrial irritants such as those to which Applicant was exposed during her employment. He then concluded that both sets of factors contributed to her current disability. There was no evidence that Applicant’s disability was solely related to industrial exposure.
It is important to note that the WCJ, in her report and recommendation, did not express the view that Dr. Levister’s opinion that the disability was apportionable was not credible at all. If the opinion had been unsupported by objective facts, such as the positive results to allergen testing, the WCJ might have acted within her discretion to disregard it. But that was not the case, and the WCJ did not reject the general conclusion that some apportionment would be appropriate. Instead, although criticizing Dr. Levister’s failure to give a detailed explanation, she conceded that “the effects of smoking and, to a lesser extent, the problems caused by inhalant allergies, are common knowledge.” The critical problem, in her view, was that “[Dr. Levister] still does not explain why he assigned the percentages of disability he did to the non-industrial factors and to the industrial exposure.”
If the WCJ was dissatisfied with the analysis—that is, with the state of the evidence before her—she could have exercised her power under Labor Code section 5701 to develop further evidence. However, what she could not do was simply ignore Dr. Levister’s opinion on apportionment. Dr. Levister’s opinion was the only evidence in the record with respect to the issue of whether or not Applicant’s disability was partially apportionable to nonindustrial causes. There was no basis on which the WCJ could wholly reject it in favor of a finding of nonapportionment, which had no support in the record. Even the WCJ seemed to agree that Dr. Levister’s report provided the required evidence that some level of apportionment was appropriate. (See Pullman Kellogg v. Workers’ Comp. Appeals Bd., supra, 26 Cal.3d 450 [burden of proof].) The finding of no apportionment cannot be supported and the WCJ should have entered a finding of apportionment in accordance with Dr. Levister’s opinion.
DISPOSITION
The award under review is annulled. The matter is remanded to the Workers’ Compensation Appeals Board with directions to enter a new award and finding of apportionment in accordance with this opinion.
We concur: McKINSTER, J., KING, J.