Introduction
A recent panel decision of the Workers’ Compensation Appeals Board (WCAB) — Evans v. San Mateo County Transit District (2025 Cal. Wrk. Comp. P.D. LEXIS 27) — offers critical insights into two hot-button issues for claims adjusters: (1) establishing valid apportionment of permanent disability and (2) seeking a credit against overpaid temporary disability (TD) benefits. While panel decisions are not binding precedents, they can be persuasive and instructive when they address novel factual scenarios or complex legal questions. Below is an overview of the decision and key practical considerations for claims professionals.
Case Overview
- Applicant’s Injury: A bus operator sustained injury to the cervical spine and left shoulder on October 3, 2019.
- Physician’s Reporting & Apportionment: The defense obtained a physician’s opinion that purported to apportion 10% of the applicant’s cervical spine permanent disability (PD) to “pre-existing pathology” and another portion to a prior left shoulder injury. However, the Board found the physician’s explanation insufficient.
- Previous Award Evidence: Defendant also argued apportionment under Labor Code § 4664 based on a prior shoulder injury, but no documentary evidence of any prior Award (or prior Stipulations) was introduced.
- Overpayment of TTD: Finally, defendant sought credit for approximately five and a half weeks of overpaid TTD benefits, claiming the applicant was declared medically able to return to work before that payment period ended.
Key Holdings
- No Substantial Evidence for Apportionment (Labor Code § 4663):
The WCAB reiterated that a physician’s opinion on apportionment must describe how and why a pre-existing injury or condition contributes to the applicant’s present disability. Merely citing a prior pathology or injury, without detail on causal contribution, is insufficient. - No Apportionment under Labor Code § 4664:
An employer must prove an overlap between the current disability and a prior permanent disability Award. Here, the defendant neither introduced a copy of the prior Award nor medical evidence from the prior claim. Thus, the WCAB declined to find any apportionment under Labor Code § 4664. - No Credit for Overpayment of TTD:
The WCAB declined to grant credit for overpayment of TD. The applicant did not contribute to the delay in receiving the physician’s report declaring him fit to work and was unaware of the status change. The Board reasoned that forcing the applicant to bear the consequences would unduly reduce his PD benefits without any wrongdoing on his part.
Practical Tips for Claims Adjusters
1. Thoroughly Document Pre-Existing Conditions
- Medical Reporting Requirements: When seeking apportionment, ensure your evaluating physician (AME, PQME, or Panel QME) addresses each of the following:
- The specific pre-existing pathology or prior injury.
- The reason (“how and why”) that prior condition contributes to the applicant’s current impairment or permanent disability.
- Clear, reasoned analysis that goes beyond boilerplate statements.
- Best Practice: Supply all available medical records of the claimant’s prior injuries to the evaluating doctor. Request a detailed explanation of causation and the basis for apportionment percentages.
2. Establish Overlap for Labor Code § 4664 Apportionment
- Proof of Prior Award: A mere reference to a claimant’s prior injury is not enough. You must obtain and introduce:
- A copy of the prior Stipulated Findings or Award, and
- Relevant medical evidence that led to that prior award.
- Overlap Analysis: Even if a prior Award exists, the adjuster must show the applicant’s new disability “overlaps” with the old disability. If not proven, Labor Code § 4664 apportionment will be rejected.
3. Monitor TTD Status Closely
- Timely Communication with Physicians: Overpayment often happens when there is a delay between the time a physician releases an applicant to return to work and when that information reaches the claims desk.
- Encourage prompt, reliable reporting methods (e.g., physician portals, email, or fax) to minimize lag time.
- Consistent follow-up calls or emails to the treating physician’s office can ensure you know the applicant’s work status as soon as it changes.
- Good-Faith Payment vs. Recoupment:
- Credit is Discretionary: As Evans demonstrates, the Board may deny your request to recoup overpaid TTD if the applicant was not at fault and acted in good faith.
- Practical Tip: Before unilaterally reducing PD benefits to offset an overpayment, seek a judge’s Order or Stipulation from applicant’s counsel if possible. If you proceed unilaterally without an agreement, you risk an adverse ruling and possible penalties.
4. Communicate Clearly and Early
- With the Claimant and Attorney: Let the injured worker and their attorney know immediately if there appears to be an overpayment or if their work status has changed.
- Internally: Maintain updated diaries, especially around MMI/P&S (permanent and stationary) or Return-To-Work dates, so TTD does not continue inadvertently.
5. Consider the Equities
- The WCAB will look at fairness: Did the worker receive TTD in good faith? Did they cause the overpayment? If not, the Board may be reluctant to allow a large credit that erodes PD, especially if the worker lacks fault.
Conclusion
The Evans panel decision underscores the importance of meticulous handling of both apportionment and TTD overpayments. For apportionment to stand, it must be firmly grounded in substantial medical evidence that clearly explains each causal factor, and while overpayments of TTD may be recoverable in some instances, the WCAB can, and often does, exercise discretion to deny or reduce a credit where the worker was not at fault.
For claims adjusters, the roadmap is clear:
- Stay vigilant in gathering and providing complete medical evidence to evaluators.
- Document prior Awards and precisely establish overlap for Labor Code § 4664 apportionment.
- Develop robust internal procedures to prevent or minimize extended overpayments of TTD.
- Communicate timely with all stakeholders to avoid surprises and maximize your potential for equitable relief.
By carefully applying these practices, you can reduce the risk of adverse outcomes similar to those encountered by the defendant in Evans — and more effectively manage your claims files in compliance with California workers’ compensation law.
Disclaimer: This blog post is for informational purposes only and does not constitute legal advice. Always consult with legal counsel for guidance on specific claims or issues.
For more information, please visit www.rjylaw.com.
