Permanent Total Disability reduced by prior award to same statutory body region
- Posted By: Harvey Brown
- August 30, 2021
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
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Newport Beach, Ca 92660