Appellate Court Issues Published Apportionment Decision

The applicant sustained an industrial injury to his back. The parties stipulated to a 46 % permanent disability. This was based on an agreed medical examiner opinion. The stipulation was approved in March 2001, before the new apportionment law went into effect.

In November 2001, the applicant filed a petition to reopen for new and further disability.

The case was presented to a Workers’ Compensation Judge (WCJ) in February 2004. The WCJ found the applicant was entitled to 70 % permanent disability without apportionment.

Apportionment was considered under the old apportionment law prior to April 19,2004. The defendant petitioned the Workers’ Compensation Appeals Board (WCAB) for review because the new apportionment law was passed 10 days after the WCJ’s decision. The WCAB remanded for the WCJ to determine whether SB 899 applied. The applicant preempted the WCJ by immediately filing a WRIT.

The appellate court discussed the conclusive presumption of Labor Code section 4664 (b). They further discussed the WCAB’s continuing jurisdiction under Labor Code sections 5410, 5803, and 5804.

They concluded that reopening discovery and further developing the record may be required to consider apportionment. They indicated it was not relevant that many cases in the pipeline may have been blind sided by the new legislation.

The important concept with this case is that even if there was no apportionment in the first stipulation you may get apportionment on reopening.


WCAB Issues Apportionment Decision

The applicant sustained an industrial injury to his low back. The major issue at the time of trial was permanent disability and apportionment. The applicant had a prior injury at the same employer to the same part of the body. The applicant received a stipulated Award on the prior injury of 49%.

The current injury went to trial. The Workers’ Compensation Judge (WCJ) took judicial notice of the prior 49% award. The WCJ then issued rating instructions to the Disability Evaluation Unit which yielded an overall rating of 80%.

The disability evaluator recommended a rating of 31%. This was the subtraction method of subtracting the prior 49% award from the current 80 % rating. The WCJ agreed and issued a Findings and Award for 31%.

The applicant attorney filed a petition for reconsideration asking that the percentage not be subtracted but rather the dollar value be subtracted. The applicant argued that Fuentes was no longer controlling because of the passage of SB 899.

The Workers’ Compensation Appeals Board (WCAB) issued this en banc decision stating that Labor Code sections 4663 (c) and 4664 (a) mandate that the
percentage of disability (not the dollar amount) be subtracted.

The WCAB indicates the fact that Fuentes was an analysis of the apportionment law under Labor Code section 4750, which was repealed, does not change the legislative intent in adopting the new apportionment statutes.

They indicated you find the overall permanent disability. You then subtract the percentage of permanent disability caused by other factors under section 4663 (c) or previously awarded under section 4664 (b).


Appeals Board Reviews Apportionment Under The New Law

The applicant had an industrial injury to her left knee. The applicant alleged as a compensable consequence of that a right knee problem. The applicant had surgery to the left knee.

The defense doctor apportioned the applicant’s disability on the fact that the applicant had significant degenerative arthritis in both knees. This was based on reasonable medical probability.

The Workers’ Compensation Judge (WCJ) agreed with the defense doctor and apportioned. The applicant filed a petition for reconsideration.

The Workers’ Compensation Appeals Board ( WCAB) issued a n En Banc decision. They reviewed SB 899.

They indicated that Labor Code section 4663 (a)’s apportionment of permanent disability is based on causation of permanent disability , not causation of injury.

Section 4663 (c) indicates what standards the WCAB must use for this determination and how to determine what percentage of permanent disability was caused by other factors.

The applicant has the burden of determining the percentage of
disability caused by the injury while the defendant has the burden of what disability was caused by other factors.

Disability can be apportioned to pathology, asymptomatic prior conditions, and a retroactive prophylactic work preclusion, even though this had been disallowed in the past under prior case law. There must be substantial medical evidence of the apportionment. The doctor must state the reasons for the opinions and that it is based on reasonable medical probability.


New Apportionment Law Reviewed In Key Case by WCAB

The applicant had an industrial injury on February 12, 2002. The applicant had a prior injury to the same body part in 1997. The applicant had continuing problems up until the current injury. In fact, the applicant was still receiving treatment on January 31, 2002 for the 1997 injury.

The Mandatory settlement conference was held on November 13, 2003. A trial was held on February 18, 2004. The Workers’ Compensation Judge (WCJ) referred the case to the Disability Evaluation Unit. The case was deemed submitted.

On April 19, 2004 SB 899 was enacted and created new apportionment legislation.

ON April 23, 2004 the WCJ found the applicant had a 34%disability without apportionment. Defendant filed a petition for reconsideration which resulted in this opinion.

The Workers’ Compensation Appeals Board (WCAB) issued an en banc decision that included a concurring and dissenting opinion. They could not reach a unanimous decision on this important issue. This case is going to an appellate court for review.

The WCAB first dealt with what an existing order, decision or award dealt with under Labor Code section 4663. If the new statute applied the decision of the WCJ would have to be rescinded. They held in this case that the case was submitted prior to April 19, 2004.

They further held where there is no existing order, decision, or award, the apportionment provisions of SB 899 apply to all cases irrespective of the date of injury.

The concurring opinion indicated orders of submission were not sufficient. The dissent indicated the majority’s decision was contrary to legislative intent.


New Apportionment Law Reviewed In Key Case

This is a published case.

The applicant had an industrial injury in 1993. The applicant had another industrial injury in 1996. After the second injury, the applicant settled the first injury by Stipulation With Request For Award for 42 3/4 percent permanent disability. This may have been a tactical error by applicant’s attorney.

The second injury went to trial. A Workers’ Compensation Judge (WCJ) ruled the applicant was 100 percent disabled. However, the WCJ apportioned. The WCJ used the subtraction method and subtracted the 42 3/4 percent prior award leaving the applicant with a 57 1/4 percent award for the second injury. Applicant wanted a finding of 100 per cent.

The applicant filed a petition for reconsideration. The Workers’ Compensation Appeals Board (WCAB) agreed with the WCJ and denied the petition. The applicant then filed a Writ and this court reviewed the facts.

The appeals court reviewed Labor Code section 4750. They reviewed the applicable case law regarding section 4750. They determined that in this case there was an Agreed Medical Examiner (AME) who apportioned to the prior disability. Moreover, at the time of the second injury, the applicant was receiving treatment, taking medication, wearing a leg brace, and taking time off work.

The court noted that on April 19 , 2004 the Legislature past a new bill that was a conclusive presumption on apportionment. (SB 899). This was regardless of the date of injury. They indicated that the law states that the prior injury is conclusively presumed to exist at the time of the subsequent injury. They indicated that even if there was not substantial evidence to support apportionment the WCAB would be bound to apportion based on the conclusive presumption. Even though this is a non published case this case is very significant as to how the court will rule.


New Cases Discuss Apportionment Of Disability

Two new appellate cases in the January 1996 CCC’s discuss the issue of apportionment and some related issues and provide a good review and some clarification. Both cases are non-published in the official reports but still make for good argument.

In the Aanenson case, the neurologist reporting for applicant gave a specific work restriction. In an additional letter to the attorney he gave an additional prophylactic restriction but indicated that this should not increase the overall disability. The additional restriction was not rated. The court indicated it was wrong not to rate this even if the doctor did not mean for it to be rated.  It was there, so it had to be rated. The case also dealt with a psychiatric issue.  Defendant’s are liable for an industrial injury mat is accelerated, aggravated or “lit up” a preexisting condition. Here there was preexisting non industrial Bell’s Palsy. The psychiatric doctor did not explicitly state that the applicant’s apportioned disability was caused by me natural progression of a preexisting, nonindustrial condition.  However, the doctor did prepare two forms indicating the applicant’s projected level of disability if she had not suffered die industrial injury and the other form indicating the impairment in the presence of the industrial injury. The court indicated this was sufficient under 4663 because the report contained many references to the factors the doctor was considering in apportioning disability.

The court also indicated that the stress of rehabilitation could “light up” the previous injury. Defendants would be liable for all expenses treating that injury and treatment could not be apportioned.

In the Kempe case the applicant had a 1988 back injury in which they stipulated to 10-¾%. In 1992 the applicant had neck injury in which the AME indicate that the overall disability for both injuries was 36-1/2 percent. The judge recalculated the first injury based on the applicant’s age and occupation immediately preceding me 1992 injury at 12 %. The judge men subtracted 12 from 36-1/2.

The court indicated that where successive industrial injuries result in disabilities which become P & S at different times and overlap you determine die combined disability and then subtract the percentage of disability due to die prior injury. In this case that would be 10-3/4. Here there was no claim of rehabilitation between injuries as in the Robinson case. Here die neck condition had not unproved at die time of the subsequent back injury. So the court determined that apportionment was valid under Labor Code section 4750 because the applicant’s preexisting neck disability raised the existence of overlap.


Can You Get Apportionment Under Labor Code 4750.5?

New case law indicates you cannot get apportionment under Labor Code section 4750.5 for a subsequent non-injury event such as a pregnancy.  The old saying that the law is constantly changing is never more evident than in this case. As we know apportionment can be found under Labor Code section 4663 for a preexisting disease or condition. You can also obtain apportionment under Labor Code section 4750 for a preexisting permanent disability or physical impairment. To get apportionment under either section the preexisting disability must be “labor disabling”.

Defendant’s used to be able to obtain apportionment to subsequent injuries.  Then in the Jenson case the court stated that you cannot obtain apportionment to subsequent injuries only preexisting ones. So the legislature enacted 4750.5 to overrule Jenson and let defendants get apportionment to subsequent non-compensable injuries. This Court looked at that language and analyzed definitions under the various decisions to determine the words, “non-compensable injury” and “subsequent”.

This case had to do with multiple employers, injuries, and subsequent pregnancies to industrial injuries. The applicant also alleged carpal tunnel syndrome as industrial. Some medical opinion may ascribe to the theory that carpal tunnel can be aggravated by-pregnancy. Therefore, a doctor may try to apportion to this. In this case they apportioned 50% to subsequent non-industrial injury which happened to be unemployment and pregnancy. In this case “unemployment” occurred between the first and second injury, and between the second and third injury.  The pregnancies occurred contemporaneously with the first injury and after the third injury.

No previous appellate court had discussed the meaning of Labor Code section 4750.5 in a published opinion.  So this Court determined that “Unemployment” cannot be regarded as an “injury”. The Court did not specifically say that pregnancy could not be regarded as an injury, but slated that the doctor s did not explain in what manner applicants pregnancy constituted and “injury” or caused any permanent disability. Reading between the lines it would be difficult to ever see the Court find a pregnancy an injury. They went on to state that under 4750.5 it is unlikely that the legislature ever intended that the statute would be applied to pregnancy or unemployment.

Therefore, as to the present the Court has indicated that pregnancy and unemployment will not constitute “non-compensable injuries”. The rest will have to be decided on a case by-case basis.

The case also did not discuss Labor Code section 5500.5 although it mentions in footnote three that, apportionment may arise under that statute. Whether 5500.5 was raised in the underlying case is unclear.


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