Apportionment Application on Petition To Reopen

The applicant filed a claim for an injury March 22,1995. The claim was admitted and the case went to trial. The Workers’ Compensation Judge (WCJ) found permanent disability to the left ear, neck, and left upper extremity at 67%. This rating was determined by “baseball arbitration” under former Labor Code section 4065. There was no apportionment

The applicant filed a timely Petition To Reopen under Labor Code sections 5803, 5804 and 5410. The Petition To Reopen proceeded to trial March 2,2004. On April 19, 2004 SB 899 was passed. On April 23, 2004 the WCJ indicated the new law of apportionment would apply.

The applicant filed a Petition for Removal to the Workers’ Compensation Appeals Board (WCAB) contending apportionment under SB 899 could not be applied. The WCAB invited briefs from the workers’ compensation community.

The WCAB issued an en banc decision in this case. The WCAB indicated that when you file a Petition To Reopen you have reopened the issue of permanent disability. This may now include disability that could not be apportioned prior to SB 899. Therefore, on the Petition To Reopen you can now apportion to pathology, asymptomatic prior conditions, retroactive prophylactic conditions, etc. If the new number is lower that does not change the original award.

However, defendants should consider whether they should do a simultaneous Petition To Reduce.

Case: Vargas v Atascadero State Hospital
This is an en banc decision

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

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