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.

Case: Ashley V. W.C.A.B.

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

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