New Apportionment Law Reviewed In Key Case by WCAB

The applicant had an industrial injury on February 12, 2002. The applicant had a prior injury to the same body part in 1997. The applicant had continuing problems up until the current injury. In fact, the applicant was still receiving treatment on January 31, 2002 for the 1997 injury.

The Mandatory settlement conference was held on November 13, 2003. A trial was held on February 18, 2004. The Workers’ Compensation Judge (WCJ) referred the case to the Disability Evaluation Unit. The case was deemed submitted.

On April 19, 2004 SB 899 was enacted and created new apportionment legislation.

ON April 23, 2004 the WCJ found the applicant had a 34%disability without apportionment. Defendant filed a petition for reconsideration which resulted in this opinion.

The Workers’ Compensation Appeals Board (WCAB) issued an en banc decision that included a concurring and dissenting opinion. They could not reach a unanimous decision on this important issue. This case is going to an appellate court for review.

The WCAB first dealt with what an existing order, decision or award dealt with under Labor Code section 4663. If the new statute applied the decision of the WCJ would have to be rescinded. They held in this case that the case was submitted prior to April 19, 2004.

They further held where there is no existing order, decision, or award, the apportionment provisions of SB 899 apply to all cases irrespective of the date of injury.

The concurring opinion indicated orders of submission were not sufficient. The dissent indicated the majority’s decision was contrary to legislative intent.

Case: Scheftner v.Rio Linda School District
This is a en banc decision by the WCAB

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

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