Decision On Apportionment That Is Non Published
- Posted By: Harvey Brown
- February 1, 2006
The applicant filed a claim alleging a cumulative trauma for cardiovascular that led to a stroke.
The applicant often worried about driving in traffic in southern California. The applicant lost sleep, was anxious, and stressed about getting lost, missing turns and not arriving on time. On the day of the stroke the applicant had driven 450-500 miles. The applicant got home and did 30 minutes of yard work
During the night the applicant went to the hospital and was diagnosed with a stroke.
The defense had two Qualified Medical examiners (QME’s). The Workers Compensation Judge (WCJ) found injury and a 70 percent disability on applicant’s QME. He did not find on the defense QME’s because one physician had been convicted of health care fraud in federal court and the other was reporting outside the required specialty of internal medicine.
The defendant appealed. The Workers’ Compensation Appeals Board (WCAB) upheld the WCJ. Defendant contended there should have been apportionment even on applicant’s QME
The applicant’s QME indicated that he would not apportion because the disability was entirely industrial. However, elsewhere in his report, the doctor indicated there were other factors of contribution, including his age, his genetic history, and being overweight.
The court of appeal indicated that SB 899 requires apportionment in this type of situation. Therefore, the applicant’s QME was not substantial evidence on the issue of apportionment. The WCAB should reopen discovery and further develop the record. This is the case even though defendant never cross examined applicant’s QME.
- Posted In: Work Injury
Decision On Apportionment That Is Published
- Posted By: Harvey Brown
- January 1, 2006
The applicant filed a claim alleging a specific injury to his back in 2002. The claim was apparently admitted as industrial
The applicant had a previous back injury at the same employer in 1996. The case was settled for 20.5 permanent disability by Stipulation with Request for Award. This was equal to $11,680 for the 1996 date of injury.
The 2002 injury was submitted to a Workers’ Compensation Judge (WCJ). The WCJ found the applicant 73 per cent permanently disabled. From this overall rating the WCJ subtracted $11,680, not the 20.5 per cent. The defendant filed a petition for reconsideration contending that the percentage needs to be subtracted, not the dollar amount. The Workers’ Compensation Appeals Board (WCAB) denied reconsideration and agreed with the WCJ
The court of appeal stated that the long standing case of Fuentes v. WCAB did not apply to the new legislation of SB 899
The court of appeals indicated that there are three formulas that could be used. Formula A would subtract the prior percent of disability, as in Fuentes. Formula B looks to the number of weeks that are paid. This formula was rejected also
Formula C was adopted(which was rejected in Fuentes) which subtracts the dollar amount of the previous award. There reasoning was that Fuentes relied on Labor Code section 4750, which is repealed, and replaced with section 4664
They also awarded the applicant a life pension because his overall disability was 73 per cent. This really does not make sense and appears to be totally contrary to all legislative intent. This should be appealed to the Supreme Court.
- Posted In: Apportionment