Apportionment not granted when disability between two injuries cannot be separated

This is a writ denied case

This is a very significant case for workers’ compensation principles.

The applicant had an admitted orthopedic, internal and psychiatric specific injury on 10/15/2002. The applicant also alleged a cumulative trauma from 10/15/2002 to 1/2/2003.

The applicant saw an Agreed Medical Examiners (AME) in orthopedics, internal medicine and psychiatry. All three provided opinions on apportionment between injuries.

At trial the Workers’ Compensation Judge (WCJ) awarded the applicant 39 percent permanent disability for the specific and 68 percent permanent disability for the cumulative trauma after apportionment between the injuries.

The applicant filed a petition for reconsideration. The Workers’ Compensation Appeals Board (WCAB) granted reconsideration and submitted new rating instructions to the rater. The rater came up with a combined rating of 83 percent for the specific and the cumulative trauma. The WCAB rescinded the award and issued a joint award for 83 percent.

The WCAB reviewed Labor Code section 4663 and Benson v. WCAB. They determined apportionment must be based on causation, except when the contribution of separate injuries cannot be parceled out by an evaluating physician. Here the disability was inextricably intertwined. Therefore, a combined PD award issued of 83 percent.

Case: Alea North America Insurance Co. v. WCAB (Herrera)

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

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