New Apportionment Case Overrules Dykes

This is a published appeals court decision

This is a significant appellate court decision which ensures that this issue will be decided ultimately by the Supreme Court.

The applicant suffered an industrial injury that made her 100 percent permanently disabled. She had suffered a prior workers’ compensation injury for which she previously received an award of 35 % permanent disability.

The matter came before a Workers’ Compensation Judge (WCJ) who used the formula prescribed by the Supreme Court in the Fuentes case. The WCJ subtracted 35% from 100 % to give the applicant an award of 65%. This equated to $65,662.50. The applicant contended the Dykes formula should have been applied resulting in payment to the applicant of $420,649.21. Obviously, this a huge difference.

Fuentes relied on a different apportionment statute. The apportionment statute changed in April of 2004. The court indicated they can not rely on cases decided under prior law. However, they indicate that the legislature did not intend on overthrowing long-established principles of law in creating the new statute.

This court looked at Fuentes and Formula A,B, and C .They determine that Formula A is still appropriate under SB 899.

They concluded this is a conclusive presumption. There are now “other factors” which can result in apportiionment.

They then analyzed the Dykes decision. The court indicated the removal of the language in former Labor Code section 4750 did not reject the Fuentes ruling.

They also looked at the legislative history of SB 899 and the policy of hiring and retaining workers. They concluded Formula A and Fuentes should still be followed

Case: Davis v. WCAB

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

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