Gloria Hsi vs. Los Angeles Unified School District; Permissibly Self-insured, Administered By Sedgwick Claims Management Services, Inc.

is a case in which Gloria Hsi, a teacher for the Los Angeles Unified School District, filed a petition for reconsideration after the Workers' Compensation Appeals Board (WCAB) found that her permanent disability was partially caused by pre-existing degenerative disc disease and scoliosis. The WCAB based their decision on the report of the agreed medical evaluator (AME), Dr. Sohn, who found that the underlying degenerative disc disease and scoliosis were half of the cause of her current disability. The WCAB denied the petition for reconsideration, finding that Dr. Sohn's opinion was legally sufficient to support the apportionment.

Los Angeles Unified School District; Permissibly Self-Insured, Administered by Sedgwick Claims Management Services, Inc. Gloria HSI WORKERS’ COMPENSATION APPEALS BOARDSTATE OF CALIFORNIAGLORIA HSI, Applicant,Vs.LOS ANGELES UNIFIED SCHOOL DISTRICT; Permissibly Self-insured, Administered by SEDGWICK CLAIMS MANAGEMENT SERVICES, INC., Defendant(s).Case No. ADJ3125678 (LAO 0849393)ORDER DENYING RECONSIDERATION            We have considered the allegations of the Petition for Reconsideration and the contents of the report of the workers’ compensation administrative law judge (WCJ) with respect thereto. Based on our review of the record, and for the reasons stated in said report which we adopt and incorporate, we will deny reconsideration.            Applicant’s petition disagrees with the WCJ’s apportionment determination because “my back began deteriorating the same day my back got hurt,” because “before July 16, 2004 [the date of injury] I never experienced any backache,” and because “I am sure the scoliosis was non-existent.”            However, under Labor Code sections 4663 and 4664(a), apportionment of permanent disability is based on what factors contributed to causing the disability. Therefore, even if an employee had no symptoms prior to a work-related injury, there will be apportionment of the employee’s disability if the pre-existing asymptomatic condition played a role in causing the post-injury level of disability. (E.L. Yeager Construction v. Workers’ Comp. Appeals Bd. (Gatten) (2006)145 Cal. App. 4th 922, 928 [71 Cal.Comp.Cases 1683].) This is true even if the injury itself was 100% caused by the employee’s work, i.e., the issue of causation of permanent , disability, for purposes of apportionment, is distinct from the issue of causation of the injury. (Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 612 (Appeals Board en banc).)            Here, as the WCJ’s report points out, the June 27, 2005 report of Dr. Sohn, the agreed medical evaluator (AME)

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