New Apportionment Decision Under Section 4664

• Posted By: Harvey Brown
• November 1, 2005

This is an important decision that will surely be vigorously fought at the appellate level.

The applicant sustained an injury to his left knee in 1995. The applicant stipulated to a 34 per cent permanent disability based on a restriction of no heavy lifting.

The applicant had a second injury in 1999 to the left shoulder, left knee, left ankle and right wrist. There was a stipulation to 42 percent permanent disability based on limitation to light work. There was apportionment to the prior restriction of no heavy lifting.

The current case involves a back injury and a limitation to semi-sedentary work. The Workers’ Compensation Judge (WCJ) subtracted the rating for the light work and gave the applicant a 10 percent disability after apportionment. The applicant petitioned for reconsideration.

The Workers’ Compensation Appeals Board (WCAB) determined that Labor Code section 4664 still requires the apportionment of overlapping disabilities. This includes the situation where you have a new area of the body. In this case the new area was the back, which was not included in either of the prior awards. Apportionment was still appropriate
.
The defendant has the burden of proving the existence of a prior award. The defendant must offer into evidence a copy of the prior award or ask the WCJ to take judicial notice of the prior award. If not available, it can also be shown by secondary evidence.

This is a conclusive presumption and applicant can not contend they rehabilitated themself. Once shown the prior award will be subtracted from the current award. Overlap will be determined using the principles that were in existence prior to the new legislation.

Case: Strong v City & County of San Francisco
This is a en banc decision

• Posted In: Apportionment