New Cases Discuss Apportionment Of Disability

Two new appellate cases in the January 1996 CCC’s discuss the issue of apportionment and some related issues and provide a good review and some clarification. Both cases are non-published in the official reports but still make for good argument.

In the Aanenson case, the neurologist reporting for applicant gave a specific work restriction. In an additional letter to the attorney he gave an additional prophylactic restriction but indicated that this should not increase the overall disability. The additional restriction was not rated. The court indicated it was wrong not to rate this even if the doctor did not mean for it to be rated.  It was there, so it had to be rated. The case also dealt with a psychiatric issue.  Defendant’s are liable for an industrial injury mat is accelerated, aggravated or “lit up” a preexisting condition. Here there was preexisting non industrial Bell’s Palsy. The psychiatric doctor did not explicitly state that the applicant’s apportioned disability was caused by me natural progression of a preexisting, nonindustrial condition.  However, the doctor did prepare two forms indicating the applicant’s projected level of disability if she had not suffered die industrial injury and the other form indicating the impairment in the presence of the industrial injury. The court indicated this was sufficient under 4663 because the report contained many references to the factors the doctor was considering in apportioning disability.

The court also indicated that the stress of rehabilitation could “light up” the previous injury. Defendants would be liable for all expenses treating that injury and treatment could not be apportioned.

In the Kempe case the applicant had a 1988 back injury in which they stipulated to 10-¾%. In 1992 the applicant had neck injury in which the AME indicate that the overall disability for both injuries was 36-1/2 percent. The judge recalculated the first injury based on the applicant’s age and occupation immediately preceding me 1992 injury at 12 %. The judge men subtracted 12 from 36-1/2.

The court indicated that where successive industrial injuries result in disabilities which become P & S at different times and overlap you determine die combined disability and then subtract the percentage of disability due to die prior injury. In this case that would be 10-3/4. Here there was no claim of rehabilitation between injuries as in the Robinson case. Here die neck condition had not unproved at die time of the subsequent back injury. So the court determined that apportionment was valid under Labor Code section 4750 because the applicant’s preexisting neck disability raised the existence of overlap.

Case: Aanenson V. W.C.A.B. and Kempe V. W.C.A.B.

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

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