Permanent Total Disability reduced by prior award to same statutory body region

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

The applicant previously filed a claim for injury to upper digestive tract, a skin disorder, dietary restrictions, bruxism and TMJ for the cumulative trauma (CT) period of June 1980 to June 2015 and a specific of June 25, 2015 for his skin condition. The applicant received a permanent disability of 83 percent for these injuries.

The applicant then filed a ct for a period of June 1980 to February 2019 for colon cancer. The applicant was a firefighter battalion chief. The parties stipulated that the cancer was industrial pursuant to the firefighter presumption in Labor Code section 3212.1

The Workers’ Compensation Judge (WCJ) ruled that vocational evidence rebutted the rating schedule on disability and the applicant was 100 percent disabled.

The WCJ used the “catch all” provision of Labor Code 4664 (c) (1) (G) to calculate the prior award to be 34 percent for body parts that fall within that section. The WCJ then deducted the 34 percent for apportionment to give the applicant a 66 percent disability for the colon cancer injury.

The applicant filed a petition for reconsideration. The Board panel reviewed 4664 ( c) (1) (g) and case law. The Board approved the WCJ and indicated if apportionment was not allowed applicant would have received two life time pensions.

Russell v. County of Los Angeles

Editor: Harvey Brown
Samuelsen, Gonzalez, Valenzuela & Brown
3501 Jamboree Suite 602
Newport Beach, Ca 92660
(949) 689-5586

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.

Court of Appeal overturns WCAB decision on apportionment in published case

This is a court of appeal case

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

The applicant had a work related injury. The applicant saw private physicians that did not believe the applicants vision loss was work related. The Qualified Medical Examiner (QME) believed it was work related. However, he apportioned disability to a pre-existing condition.

After the doctor’s deposition he apportioned 15% to industrial and 85% to non industrial.

At trial the Workers’ Compensation Judge (WCJ) found the apportionment was not supported by substantial evidence and did not allow any apportionment. The defendant filed a petition for reconsideration. The Workers’ Compensation Appeals Board (WCAB) agreed with the WCJ and indicated that the QME confused causation of injury with causation of disability. Therefore, no apportionment.

The appellate court reviewed Brodie, Zemke, Escobedo, etc. They also reviewed Labor Code section 4663 and 4664. The appellate court indicated the QME understood the distinction between cause of injury and cause of disability. It is not required that an asymptomatic condition become symptomatic to receive apportionment. It is only required that substantial medical evidence state that an asymptomatic condition was a contributing factor of disability. Here there was substantial medical evidence to allow apportionment.

Court of Appeal indicates that you can apportion to heredity and genetics

This is a published decision of the court of appeal

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

The applicant was a police officer. He suffered an admitted cumulative trauma to his neck. He underwent neck surgery. The Qualified Medical Examiner (QME) indicated the applicant had cervical radiculopathy and cervical degenerative disc disease. The QME apportioned disability.

The QME referred to specific publications that indicate causation can be to genomics/genetics/heritable issues in terms on injury. The QME apportioned 49 percent to nonindustrial causation.

The Workers’ Compensation Judge (WCJ) determined that the apportionment was legal to genetic factors. The applicant petitioned for reconsideration. The Workers’ Compensation Appeals Board (WCAB) overruled the WCJ indicating that apportioning to genetics factors opens the door to apportioning to impermissible immutable factors.

The Court of Appeal disagreed in a great review of apportionment law. It indicated Zemke was superseded by Senate Bill 899. It then reviewed multiple cases including Escobedo. It reviewed section 4663. It reviewed what is substantial medical evidence. It indicated that the QME report found cervical radiculopathy and degenerative disc disease. It apportioned 49 percent to heredity, genomics, and other personal history factors. This was legal proper apportionment.

Alleging Psychiatric injury for first time on Petition for New and Further Disability

This is an Opinion and Order Granting Reconsideration

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

The applicant had an admitted injury. The applicant entered into a Stipulated Award for orthopedic body parts in 2011. Thereafter, the applicant filed a timely Petition to Reopen. The applicant alleged new and further disability, including the need for psychiatric care. This was the first time psychiatric care was alleged.

The case went to trial. The defendant alleged the claim was barred by the doctrine of res judicata. They also alleged that the injury is not a new and further disability. Defendant claimed the applicant knew of the psychiatric injury at the time of the original stipulation and there was not good cause to reopen.

The Workers’ Compensation Judge (WCJ) found the psychiatric injury compensable. Defendant filed a petition for reconsideration. This opinion is in response to that. The Workers” Compensation Appeals Board indicated that a psychiatric condition does not fall within the workers compensation system until it causes either disability or a need for treatment and it is diagnosed. It was error for the WCJ to find the psychiatric injury AOE-COE. Instead the psychiatric injury is a compensable consequence of the original injury. It was not a new and independent injury.

The Court of Appeal Issued a Non Published Decision on Apportionment

This is a very significant case for workers’ compensation principles in that it discusses the current case law.

The applicant had a specific injury in 2000. The applicant

also filed a cumulative trauma from 2002 to 2004. The applicant was seen by an Agreed Medical Examiner (AME) for both injuries. The AME determined the applicant was 100 percent disabled.

The AME determined it was all the result of the specific injury and the cumulative trauma was a compensable consequence of the specific injury.

At trial the workers’ compensation judge (WCJ) found the applicant 100 percent without apportionment. The AME indicated the Benson case was not applicable here because Benson dealt with successive injuries while this was a compensable consequence.

The Worker’s Compensation Appeals Board (WCAB) agreed with the WCJ and denied the petition for reconsideration filed by the defendant. The Court of Appeal looked at Labor Code sections 4663 and 4664 and the Benson case.

The Court of Appeal indicated that successive injuries to the same body part under Brodie and Benson can not be rated as a single injury, except where the physician cannot parcel out the causation of the disability. There must be apportionment. This case was remanded for apportionment.


Editor: Harvey Brown

Firm: Samuelsen, Gonzalez, Valenzuela and Brown

Address: 3501 Jamboree Suite 602

Newport Beach, ca 92662

Supreme Court Finally Decides Apportionment Case

The court looked at five different decisions of the Workers’ Compensation Appeals Board (WCAB). All of the cases had an apportionment issue. In each case there was either a previous industrial injury or a nonindustrial cause for the permanent disability. In each case the workers’ compensation judge (WCJ) applied the formula for apportionment used in Fuentes v. WCAB.

These cases went up on appeal resulting in differing appellate decisions. In Brodie v. WCAB the court did not adopt Fuentes. In Welcher v. WCAB the appellate court followed Fuentes.

In a very lengthy opinion the supreme court then went into the apportionment problem. In a great discussion they discussed the history and reasoning of the apportionment laws. In there analysis they discuss Labor Code sections 4658 and 4750.

The law was settled for 28 years until SB 899 was passed in 2004. Labor Code sections 4663 and 4750 were repealed. A revised section 4663 and a new 4664 section were enacted. This resulted in the court questioning whether Fuentes was still good law.

This resulted in three different approaches being applied by various Courts of Appeal and the WCAB. The Supreme Court needed to review to solidify opinion under one approach.

The Supreme Court reviewed SB 899 and its legislative history. They compared the old and new statutes. They asked the question whether the legislature intended to adopt a new and different formula and determined the answer was no.

Therefore, Fuentes is still the law for apportionment

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.

Decision On Apportionment That Is Published

The applicant filed a claim alleging a specific injury to his back in 2002. The claim was apparently admitted as industrial

The applicant had a previous back injury at the same employer in 1996. The case was settled for 20.5 permanent disability by Stipulation with Request for Award. This was equal to $11,680 for the 1996 date of injury.

The 2002 injury was submitted to a Workers’ Compensation Judge (WCJ). The WCJ found the applicant 73 per cent permanently disabled. From this overall rating the WCJ subtracted $11,680, not the 20.5 per cent. The defendant filed a petition for reconsideration contending that the percentage needs to be subtracted, not the dollar amount. The Workers’ Compensation Appeals Board (WCAB) denied reconsideration and agreed with the WCJ

The court of appeal stated that the long standing case of Fuentes v. WCAB did not apply to the new legislation of SB 899

The court of appeals indicated that there are three formulas that could be used. Formula A would subtract the prior percent of disability, as in Fuentes. Formula B looks to the number of weeks that are paid. This formula was rejected also

Formula C was adopted(which was rejected in Fuentes) which subtracts the dollar amount of the previous award. There reasoning was that Fuentes relied on Labor Code section 4750, which is repealed, and replaced with section 4664

They also awarded the applicant a life pension because his overall disability was 73 per cent. This really does not make sense and appears to be totally contrary to all legislative intent. This should be appealed to the Supreme Court.

New Apportionment Decision Under Section 4664

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.

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