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Court of Appeal, Fourth District, Division 2, California.

OMNITRANS; Fleming and Associates, Petitioners, v. WORKERS' COMPENSATION APPEALS BOARD; Gary De La Cruz, Respondents.

No. E017434.

Decided: December 18, 1996

Mark, Bolson, Kuntz & Serembe and Louis D. Seaman, San Bernardo, CA, for Petitioners. No appearance for respondent Workers' Compensation Appeals Board. W. Roger Kampf & Associates and Benjamin K. Helfman, San Bernardino, CA, for Respondent Gary De La Cruz.


The affected employer, Omnitrans, seeks review and annulment of an order of the Workers' Compensation Appeals Board (“Board”) denying reconsideration of the decision and findings of the Workers' Compensation Judge (“WCJ”) that applicant Gary De La Cruz was temporarily disabled from May 4, 1993, through June 22, 1993, and that there was no basis for legal apportionment. We conclude that the finding regarding apportionment is supported by substantial evidence, but the finding that De La Cruz was temporarily disabled from May 4, 1993, through June 22, 1993, is not supported by substantial evidence. Therefore, we will annul the Board's order insofar as it denied reconsideration on the issue of temporary disability.


Applicant De La Cruz worked as a bus driver for Omnitrans. It is undisputed that during the course and scope of his employment he suffered injury to his low back on June 19, 1992, and on February 15, 1993. After the February 15, 1993, injury he was off work for two weeks, enrolled in physical therapy, and then sent back to work. He continued to work until he was terminated on March 29, 1993, for reasons unrelated to his back injury.

The treating physician, Dr. Sabety, reported on April 21, 1993, that De La Cruz had a chronic lumbar strain and that his condition was subject to remissions and exacerbations with relatively minor trauma. Dr. Sabety considered his condition to be permanent and stationary. De La Cruz was not working at this time, although he reported that he was still looking for a job.

Dr. Sabety filed another report dated June 26, 1993, after a follow-up examination. De La Cruz reported that the pain in his right leg and buttocks area continued. Dr. Sabety noted that De La Cruz had gone to a chiropractor in May after he had seen a newspaper ad for free treatment. The chiropractor, Dr. Bueler, recommended that he get an attorney. De La Cruz told Dr. Sabety that he had chiropractic care three times a week and that it seemed to be helping. Although the pain in his leg was about the same, De La Cruz indicated that his low back pain was not as bad. Dr. Sabety thought it was questionable whether chiropractic care initiated a year after the initial injury would make any difference, but did not have a problem with it since De La Cruz thought it was helping.

Apparently at De La Cruz's urging, a CT scan was obtained and confirmed Sabety's clinical examination that he had a degenerated disc at L5-S1 causing his right sciatica. Sabety stated that this finding did not change his opinion to any significant degree and he concluded that De La Cruz's condition remained permanent and stationary.

The only report from Dr. Bueler in the record is a one-page document dated May 19, 1993, which is titled “Doctor's First Report of Occupational Injury or Illness” consisting of a preprinted form. On this form Dr. Bueler has checked a box indicating that De La Cruz is not able to return to his usual work, and further specifying that he could return to work on June 14, 1993.

The conclusions of the Agreed Medical Examiner, Dr. McAllister were essentially the same as Dr. Sabety's. Dr. McAllister first examined De La Cruz in January 1994 and felt he was permanent and stationary at that time. De La Cruz reported that his pain varied, sometimes being made worse by cold weather or by prolonged sitting. Dr. McAllister reported that De La Cruz had been seeing Dr. Bueler until a month before.

De La Cruz told both doctors that he had not had any back problems prior to the June 1992 incident. However, when Dr. McAllister reviewed his medical records from Kaiser, he noted that De La Cruz had been treated for recurrent low back pain in 1983 and in 1987. Dr. McAllister filed a supplemental report in November 1994 in which he changed his opinion about apportionment: “It is apparent that I did not have an accurate past history in reference to his low back, and the submitted records have repeatedly mentioned low back symptoms, and on at least one record extension into the lower extremities. [¶] For these reasons I feel that apportionment is definitely indicated. It is my opinion that 25 % of the disability as it existed at the time of my examination be attributed to prior injury and symptomatic low back degenerative disease, the remainder due to the injury of June 10, 1992, which worsened his condition.”

The WCJ awarded De La Cruz permanent disability, finding he was “prophylactically restricted from very heavy work and prolonged sitting” and finding no basis for apportionment to a pre-existing disease or condition. The WCJ also found that De La Cruz was permanent and stationary as of June 26, 1993 (the date of his follow-up examination by Dr. Sabety) and found him temporarily disabled from May 4, 1993, until June 22, 1993.

The finding of temporary disability was based on Dr. Bueler's findings as indicated in his treatment liens. The WCJ noted that De La Cruz had sought additional treatment from Dr. Bueler on May 14, 1993, and that the latter had found him to be “temporarily totally disabled and treated him, according to his treatment lien, until July 26, 1993.” The WCJ rejected the employer's contention that Dr. Sabety is “capable of making a retroactive analysis on June 26, 1993, to ascertain the status/condition of [De La Cruz] on May 4, 1993. With this opinion the court does not agree especially in light of the doctor's diagnosis that [De La Cruz's] condition is subject to remission and exacerbation even ‘dramatic exacerbation.’ [¶] In light of Dr. Bueler's treatment report and Dr. Sabety's speculation regarding the period of temporary disability in question the court must rely on the reporting of the attending physician Dr. Bueler.”

The WCJ also found that the apportionment as outlined in Dr. McAllister's report did not constitute legal apportionment.

Omnitrans petitioned for reconsideration regarding these two issues. The petition was denied. Omnitrans seeks a writ of review from this court.


I.Standard of Review

When a finding of the board is challenged, it must be upheld if supported by substantial evidence in “light of the whole record.” (LeVesque v. Workmen's Comp. App. Bd. (1970) 1 Cal.3d 627.) This standard is not met by simply isolating evidence which supports the board and ignoring other relevant facts of record which rebut or explain that evidence. (Id., at pp. 638-639, fn. 22.) “Whether there is substantial evidence to support the decision is a question of law.” (Ferreira v. Workmen's Comp. Appeals Bd. (1974) 38 Cal.App.3d 120, 124.)

“Although the employee bears the burden of proving that his injury was sustained in the course of his employment, the established legislative policy is that the Workmen's Compensation Act must be liberally construed in the employee's favor (Lab. Code, § 3202), and all reasonable doubts as to whether an injury arose out of employment are to be resolved in favor of the employee.” (Garza v. Workmen's Comp. App. Bd. (1970) 3 Cal.3d 312, 317.)

Moreover, the employer has the burden of proof to justify apportionment. (Pullman Kellogg v. Workers' Comp. Appeals Bd. (1980) 26 Cal.3d 450.)



Permanent disability may be apportioned pursuant to either Labor Code sections 4663 or 4750.1

Section 4663 provides that “[i]n case of aggravation of any disease existing prior to a compensable injury, compensation shall be allowed only for the proportion of the disability due to the aggravation of such prior disease which is reasonably attributed to the injury.”

Apportionment is justified under this section only if the board finds that, absent the industrial injury, part of the permanent disability would have resulted from the natural progression of a nonindustrial disease. The employer must compensate not only for the disability caused solely by the industrial injury, but also for that resulting from an aggravation or “lighting up” of a nondisabling injury. “It is disability resulting from, rather than a cause of, a disease which is the proper subject of apportionment; ‘pathology’ may not be apportioned.” (Pullman Kellogg v. Workers' Compensation Appeals Bd., supra, 26 Cal.3d 450, 454.)

“The question of apportionment is one of fact, and in making its determination, the board must rely on substantial evidence.” (Ibid․)

To support apportionment of nonindustrial disability under section 4663, there must be medical evidence expressly stating that the apportioned disability is the result of the natural progression of the preexisting, nonindustrial condition and such nonindustrial disability would have occurred even in the absence of the industrial injury. (Ditler v. Workers' Compensation App. Bd. (1982) 131 Cal.App.3d 803, 812.)

“Apportionment under ․ section 4663 may not be based on speculation as to the hypothetical causes of a disability that might occur at some indefinite time in the future.” (King v. Workers' Comp. App. Bd. (1991) 231 Cal.App.3d 1640, 1648.) It is necessary that the nonindustrial disability would have occurred by the time the employee's present disability became permanent and stationary. (See 1 Hanna, Cal. Law of Employee Injuries & Workers' Compensation (2d ed. rev. 1996) § 8.05(2)(b), pp. 8-25.)

Dr. McAllister's statement falls short of the specificity required to support apportionment under section 4663. Without any discussion whatsoever, he merely expresses his opinion that 25 percent of the disability be attributed to low back degenerative disease. This conclusionary statement is not even as specific as the medical opinion that was found deficient in King, supra, 231 Cal.App.3d at p. 1648, where the doctor's general statement that, absent the employment, the employee's preexisting hypertension would have advanced during menopause was found not to be sufficiently specific to support apportionment to natural progression of preexisting condition.

Section 4750 provides that an “employee who is suffering from a previous permanent disability or physical impairment and sustains permanent injury thereafter shall not receive from the employer compensation for the later injury in excess of the compensation allowed for such injury when considered by itself and not in conjunction with or in relation to the previous disability or impairment. [¶] The employer shall not be liable for compensation to such employee for the combined disability, but only for that portion due to the later injury as though no prior disability or impairment had existed.”

“For a physician's evaluation to support apportionment under Labor Code section 4750, the physician must describe in detail the exact nature of the preexisting disability and the basis for his opinion. (Ditler v. Workers' Comp. Appeals Bd. (1982) 131 Cal.App.3d 803, 812; Calhoun v. Workers' Comp. Appeals Bd. (1981) 127 Cal.App.3d 1, 10; Callahan v. Workers' Comp. Appeals Bd. (1978) 85 Cal.App.3d 621, 630.) The preexisting disability must have been labor-disabling. (Ditler, supra, 131 Cal.App.3d at p. 813.) Evidence of preexisting disability may consist of complaints to coworkers or physicians before the industrial injury, treatment to the same part of the body before the industrial injury, or measurable preexisting loss of functioning. (Id., at p. 815, fn. 8.) The preexisting condition need not have caused disability in the occupation in which the worker was employed. (Id., at p. 813; Franklin v. Workers' Comp. Appeals Bd. (1978) 79 Cal.App.3d 224, 238.) A finding of preexisting disability may be based on evidence the condition would have interfered with other work activity before the industrial injury. (Ibid.) However, a prophylactic work restriction may not be applied retrospectively to create a factual or legal fiction of preexisting disability. (Citations.) Apportionment may not be based merely on pathology. (Citation.) ․[¶] Apportionment to preexisting disability may not be based on speculation.” (King v. Workers' Comp. Appeals Bd. (1991) 231 Cal.App.3d 1640, p.1647.)

Thus, in King, supra, the court held the evidence did not support apportionment to natural progression of preexisting conditions where there was no evidence that the employee's preexisting hypertension or cardiovascular condition was actually labor-disabling before the industrial injury, even though there was evidence of preexisting pathology. Similarly, in this case, there was evidence of preexisting pathology but no evidence that De La Cruz's back problems were labor-disabling before the industrial injuries.

Accordingly, we conclude that the Board did not err in denying reconsideration on the apportionment issue because the record does not contain substantial evidence which would permit apportionment under either section 4663 or 4750.


Temporary Disability

There is no statutory definition of temporary disability; however, a disability cannot be both permanent and temporary at the same time. (Western Growers Ins. Co. v. Workers' Comp. App. Bd. (1993) 16 Cal.App.4th 227, 235; 1 Hanna, Cal. Law of Employee Injuries & Workers' Compensation (2d ed. rev. 1996) § 7.01(1), pp. 7-4.) “Disability ceases to be temporary, and is therefore permanent, when treatment has restored the employee to the full extent that the permanent character of the injury will permit․ [¶] Once maximum rehabilitation has been achieved, the worker is permanent and stationary, even though some slight change in condition, for better or for worse, may occur. Nor is the continuing need for medical treatment conclusive indication of temporary disability, as the need for treatment is not incompatible with a status of permanent disability.” (1 Hanna, supra, § 7.02(2), pp. 7-9.) Thus, a finding of permanent and stationary is inconsistent with a finding of temporary disability--an employee cannot be both at the same time.

Here, we have Sabety's reports of April 20 and June 26 finding that De La Cruz was permanent and stationary. It was noted in the earlier report that De La Cruz had constant slight pain in the low back which increase with prolonged sitting. The WCJ relied on the chiropractor treatment report that De La Cruz was totally disabled when he saw him and concludes that he must have had a flare-up of his condition. However there is no evidence that De La Cruz did suffer such an exacerbation. He did not state that his condition had significantly worsened. Rather, he went to the chiropractor simply because he saw an advertisement in the paper for free treatment. The fact that he sought treatment for his continuing pain does not show that his condition had significantly worsened so as to render him totally disabled.2

De La Cruz contends that the WCJ's finding of temporary disability is supported by the chiropractor's report and he simply chose to rely on that opinion rather than the treating physician's. Normally, reliance on one medical opinion constitutes sufficient evidence to sustain a board finding. (Patterson v. Workers' Comp. Appeals Bd. (1975) 53 Cal.App.3d 916, 921.) However, if medical reports are known to be erroneous or based on inadequate medical histories and examination they cannot constitute substantial evidence. The same rule applies to medical reports based on surmise, speculation, or conjecture. (Hegglin v. Workmens' Comp. Appeals Bd. (1971) 4 Cal.3d 162, 169.) Medical opinion which is speculative and based on conclusionary and unwarranted assumptions do not constitute substantial evidence. (Guerra v. Workers' Comp. Appeals Bd. (1985) 168 Cal.App.3d 193, 199.)

Dr. Bueler's conclusion that De La Cruz was totally disabled is just that--merely a conclusion which is unaccompanied by any explanation showing that it is based on adequate reasoning and facts. An expert's opinion is only as good as the reasons upon which it is based. (Ferreira v. Workmen's Comp. Appeals Bd., supra, 38 Cal.App.3d 120, 126.) And “[a] medical report which lacks a relevant factual basis cannot rise to a higher level than its own inadequate premises.” (Kyles v. Workers' Comp. Appeals Bd. (1987) 195 Cal.App.3d 614, 621.) Dr. Bueler's opinion, therefore, does not constitute a sufficient basis for the WCJ's and the Board's decision.3

The WCJ did rely on Dr. Sabety's report of June 26, 1993, to conclude that De La Cruz's condition became permanent and stationary as of June 22, even though Dr. Bueler apparently indicated that applicant was totally disabled until July 26. On the other hand, the WCJ ignored those portions of Dr. Sabety's report in which Dr. Sabety found that De La Cruz's condition had not changed from the time of the previous examination on April 20. The WCJ reasoned that Dr. Sabety was incapable of making a retroactive analysis on June 26 to ascertain De La Cruz's condition on May 4, but this overlooks the fact that Dr. Sabety had examined De La Cruz on April 20 and had found that his condition had remained unchanged. Thus, in the absence of any evidence to show that there had been any significant change in his patient's condition during the interim, a finding that De La Cruz's condition was permanent and stationary on May 4 is compelled by the consideration of the entire record. In this regard, the Board erred in failing to consider Dr. Sabety's June 26 report in relation to his earlier report. (LeVesque v. Workmen's Comp. App. Bd., supra, 1 Cal.3d 627, at pp. 638-639, fn. 22.)


The order denying reconsideration is annulled to the extent it affirmed the WCJ's finding and award of temporary disability for the period May 4, 1993, through June 22, 1993, and the cause remanded to the Board for proceedings consistent with the views expressed herein.


1.  All statutory references are to the Labor Code unless otherwise stated.

2.  De La Cruz testified in his deposition in September 1993 that the intensity of his pain fluctuated and generally increased after he discontinued treatment--either physical therapy or chiropractic treatment. He did state that he was bothered a lot at some point during the course of his treatment by Dr. Bueler.

3.  The WCJ and Omnitrans discuss issues relating to Dr. Bueler's status as a treating physician and the admissibility of his report. We find it unnecessary to reach these issues based on our determination that his conclusionary report does not constitute substantial evidence to support a finding of temporary disability in any case.

RAMIREZ, P.J., and RICHLI, J., concur.