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.

Case: Marsh v WCAB (Bostitch)
This is a fifth appellate district published opinion

Harvey Brown
3501 Jamboree Rd. Suite 602
Newport Beach, CA 92660

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