The exception to defendant's burden of proof

One of the most frequent issues pending before the WCAB lately has been how to handle apportionment to significant non-industrial causes when the applicant has successfully rebutted the Diminished Future Earning Capacity (DFEC) through the use of vocational experts. Applicant attorneys have arrived at trial with all the evidence they think they need to rebut the DFEC component of the rating string. However, many times their vocational expert has not commented on LC 4663 apportionment. Perhaps they think that it is not necessary. (In cases where apportionment to non-industrial factors is minimal, a comment from the vocational expert is probably not essential.) Traditionally apportionment is not applicant's burden to prove. It is up to the defendant to prove apportionment of permanent disability to non-industrial factors. However, recent Noteworthy Panel Decisions have seemed to carve out an exception to this rule...read more.

With commentary by Raymond F. Correio, Esq. 

In Aima v. Buestad Construction, Inc., 2015 Cal. Wrk. Comp. P.D. LEXIS 62, the WCAB provided guidance on rebutting a strict rating under the AMA Guides as well as what constitutes substantial evidence for apportionment in a case of permanent total disability where the applicant sustained an industrial cumulative injury to his back, psyche, and in the form of sleep and sexual dysfunction...read more.

With commentary by Raymond F. Correio, Esq. 

In Dileva v. Northrop Grumman Systems Corp., 2015 Cal. Wrk. Comp. P.D. LEXIS --, a split panel WCAB affirmed the WCJ's joint award of 96 percent permanent disability for the applicant's three separate injuries to his spine and psyche, without apportionment between the dates of injury pursuant to Labor Code § 4663...read more.