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California: Apportionment, Conclusive Presumptions and Labor Code Section 4662 (Part 2 of 2)

May 13, 2013 (9 min read)
Attention Lexis Online Subscribers: Citations link to lexis.com. Bracketed citations link to Lexis Advance.
Editor’s Note: The following is Part Two of a two-part article. Part One can be read here.
Cases Where Apportionment Is Not Applicable to LC §4662 Cases:
In the writ denied panel decision of Kaiser v. WCAB (Dragomir-Tremoreux), (2006) 71 Cal. Comp. Cases 538 [71 Cal. Comp. Cases 538], there was a prior award to the same body part. The WCAB panel held:
“Here, we conclude that, although section 4664(b) applies and, therefore, it is conclusively presumed that applicant's 18.75% permanent partial wrist disability existed at the time of the subsequent injuries at issue herein, the conclusive presumption of permanent total disability pursuant to section 4662(b) also applies and precludes apportionment of any kind, including apportionment to a prior award under section 4664(b).” (Emphasis added.)
In addition, the panel explained the basis for their conclusion. “Moreover, our conclusion that the evidence of prior disability under section 4664(b) cannot rebut the conclusive presumption of permanent total disability pursuant to section 4662(b) is supported by the plain language of section 4664(c)(1), which precludes the ‘accumulation of all permanent disability awards issued with respect to any one region of the body’' from exceeding 100% over the injured employee's lifetime ‘'unless the employee's injury or illness is conclusively presumed to be total’ pursuant to section 4662. Therefore, as applicant's permanent disability for her loss of use of both hands is conclusively presumed to be total pursuant to section 4662(b), her lifetime accumulation of awards for her upper extremity ''region of the body'' properly, under section 4664(c)(1), may exceed 100%.” (Emphasis added.)
By including the “carve-out” for not applying apportionment to LC §4662 cases in LC §4664(c)(1), the panel believed the legislature intended this to apply to all sections of the LC §4664 statutes. Based on this language, in Dragomir-Tremoreux, supra, the injured worker could be receive a total lifetime award of 118.75% PD with regard to her upper extremities, even though she has a prior 18.75% PD award to her wrist, since she was conclusively presumed 100% under LC §4662.
Several other panel decisions have followed this analysis. See Hill v. Securitas Security Services, 2012 Cal Wrk Comp PD LEXIS 294 [2012 Cal Wrk Comp PD LEXIS 294] (WCAB panel); Sanchez v. City of Santa Clara, 76 Cal. Comp. Cases 799 [76 Cal. Comp. Cases 799] (writ denied) and Wight v. General Dynamics Corp, 2010 Cal Wrk Comp PD LEXIS 331 [2010 Cal Wrk Comp PD LEXIS 331] (WCAB Panel)
However, the majority of cases, especially in recent months, seem to hold that apportionment is applicable to LC §4662 100% PD conclusive presumption cases. 
Cases With 100% PD in “Accordance with the Fact” per LC §4662:
In the panel decision of Corbitt v. Media Quest, 2012 Cal Wrk Comp PD LEXIS 458 [2012 Cal Wrk Comp PD LEXIS 458] the injured worker was found to be 100% PD “in accordance with the fact” pursuant to LC §4662. The injured worker cited the Dragomir-Tremoureux and Sanchez cases listed above to support his position that LC §4663 apportionment should not apply to reduce his award of 100%.
Although it is clear that the subsections of LC §4662 (a) though (d) deal with conclusive presumptions, there has never been definitive authority as to whether or not the last 100% PD category of LC §4662 “in accordance with the fact” constitutes a conclusive presumption. The WCAB panel in the Corbitt case held that it did not. They concluded, “Dragomir-Tremoureux and Sanchez are completely inapplicable to the instant case, because here the applicant has not sustained an injury conclusively presumed to cause permanent disability under LC §4662.” (Emphasis added.)
The WCAB basically determined in Corbitt that a finding of 100% PD under LC §4662 is only a conclusive presumption, if one of the LC §4662 (a) through (d) criteria are met. If the 100% PD is established by LC §4662 “in accordance with the fact,” it is considered a rebuttable presumption subject to apportionment.
See also Lingbaoan v. State of California, 2011 Cal Wrk Comp PD LEXIS 38 [2011 Cal Wrk Comp PD LEXIS 38], Martinez v. Southern California Edison, 2012 Cal Wrk Comp PD LEXIS 586 [2012 Cal Wrk Comp PD LEXIS 586]; Mehas-Wipf v. Corning Revere Factory Stores, 2012 Cal Wrk Comp PD LEXIS 370 [2012 Cal Wrk Comp PD LEXIS 370]; Nooner v. City of San Diego, 2008 Cal Wrk Comp PD LEXIS 907 [2008 Cal Wrk Comp PD LEXIS 907]; Driver v. Holt, 2012 Cal Wrk Comp PD LEXIS 571 [2012 Cal Wrk Comp PD LEXIS 571] (Oct 16, 2012).
Cases Where Apportionment Is Applicable to LC §4662 Cases:
The holding in the case of Richardson v. Checkmate Transport, 2012 Cal Wrk Comp PD LEXIS 597 [2012 Cal Wrk Comp PD LEXIS 597] (Dec 7, 2012) tweaks the above premise and holds that apportionment applies in all LC §4662 cases, EVEN in cases when the presumption is clearly conclusive (i.e., in LC §4662(a) through (d).)  
In the Richardson panel decision, the injured worker was determined to be 100% PD based on his loss of use of both hands per LC §4662(b). The doctor commented that a cumulative trauma contributed to this injury, but the specific injury was the primary cause. The WCJ awarded an unapportioned 100% PD award to the injured worker. The defense filed a Petition for Reconsideration, claiming the WCJ erred by not apportioning the two injuries per the case of Benson v. WCAB, (2009) 170 Cal App 4th 1535, 74 Cal Comp Cases 113 [74 Cal Comp Cases 113]. The WCAB panel agreed with defense that the Benson apportionment should apply, but that the defense had failed on their burden of proof on this issue.
Several other recent WCAB panel decisions have issued the same conclusion, i.e., that apportionment applies to all LC §4662 cases even when 100% PD is conclusively presumed. See Cruzaley v. Spin Cycle Coin Laundry, 2012 Cal Wrk Comp PD LEXIS 509 [2012 Cal Wrk Comp PD LEXIS 509]; Brown v. Southern Cal Permanente Medical Group, 2012 Cal Wrk Comp PD LEXIS 557 [2012 Cal Wrk Comp PD LEXIS 557]; Regents of UC v. Siegel, (Writ denied) 76 Cal. Comp. Cases 1237 [76 Cal. Comp. Cases 1237]; and Wilkinson v. Ontario Neon Co., 2011 Cal Wrk Comp PD LEXIS 194 [2011 Cal Wrk Comp PD LEXIS 194].
Can the Richardson case be distinguished from the cases discussed above that hold a LC §4662 conclusive presumption is conclusive and non-apportionable? Perhaps not.
CONCLUSION: How should practitioners treat these cases? As aberrations? As a new trend in the law? All of the cases to date are panel decisions. And although panel decisions are citable and can be used as persuasive authority, they are not binding. (WCAB en banc decision of Guitron v. Sante Fe Extruders (2011) 76 Cal. Comp. Cases 228, at footnote 7 [76 Cal. Comp. Cases 228].) It will take a higher authority, such as a WCAB en banc decision or a decision by the District Court of Appeal, before parties will have clarity on this issue. In the meantime, parties should approach discovery accordingly.
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