Merle C. Rabine's expert commentary examines two recent panel decisions - Sanjoro v. Motion Picture and Television Fund, 2007 Cal. Wrk. Comp. P.D. LEXIS 34, and Sallay v. Macy’s West, 2007 Cal. Wrk. Comp. P.D. LEXIS 16 - that address the issue of apportionment to factors of disability that were also factors of causation of surgery, where the surgery has corrected or removed the non-industrial factors. 

In Escobedo v. Marshall ’s (2005) 70 Cal. Comp. Cas 604 (appeals board en banc), the appeals board held that “[t]he issue of causation of permanent disability, for purposes of apportionment, is distinct from the issue of the causation of an injury. . . .  Thus, the percentage to which an applicant’s injury is causally related to his or her employment is not necessarily the same as the percentage to which an applicant’s permanent disability is causally related to his or her injury” (70  Cal. Comp. Cas at 611, emphasis in original).  The appeals board also stated that “a physician’s determination of the approximate percentages of industrial and non-industrial causation of permanent disability is to be based on the employee’s condition as of the time of the physician’s examination (provided that the industrial component of the disability is permanent and stationary)” (70 Cal. Comp. Cas at 620, fn. 11).

Rabine states that where surgery removes evidence of non-industrial factors of disability that may have been causes of the surgery, there is a split of opinion among commissioners of the appeals board as to whether there can be apportionment to those factors.  Until this issue is resolved definitively, the result will depend upon the composition of the panel that decides the issue on reconsideration.

To read Rabine's additional comments and practice points on this topic, see his expert commentary article.