California: Apportionment Precluded Under Anti-Attribution Provisions of Labor Code 4663(e)

In Zuniga v. County of Los Angeles, 2014 Cal. Wrk. Comp. P.D. LEXIS --, a split WCAB panel held that an applicant deputy sheriff was entitled to two periods of Labor Code § 4850 and temporary disability benefits (one for industrial injury to his knees, spine, cardiovascular system, and in the form of sleep disorder from 5/15/2006 through 6/30/2008 and another for injury to the same body parts except the knees on 6/30/2008) and that apportionment of the applicant’s back and cardiovascular conditions between the applicant’s two injuries was precluded under the anti-attribution provisions in Labor Code § 4663(e).

The majority of the WCAB panel determined that the applicant should receive a single, combined permanent disability award of 75 percent pursuant to Benson v. W.C.A.B. (2009) 170 Cal. App. 4th 1535, 89 Cal. Rptr. 3d 166, 74 Cal. Comp. Cases 113, rather than two separate awards as determined by the WCJ. According to the WCAB:

1. The majority of the applicant’s permanent disability related to his lumbar spine and hypertensive cardiovascular disease, both injuries that were statutorily presumed to be industrially caused during his employment as a peace officer;
2. The effect of the statutory presumption precluded apportionment of permanent disability to separate dates of injury because the statutes do not allow permanent disability to be parceled out based upon its cause;
3. Like the situation in Benson, where the evaluating physician could not parcel out causes of permanent disability, the anti-attribution statutes in this case precluded parceling out of permanent disability caused by the injuries to the applicant’s back and cardiovascular system;
4. The fact that the cumulative and specific injuries to the applicant’s back and cardiovascular system and accompanying sleep disorder intertwined and overlapped his two claims and were contemporaneously caused further supported the issuance of a single permanent disability award; and
5. The combined award also assured that the applicant obtained a full level of permanent disability caused by his injuries, while assuring that the defendant was held liable only for the permanent disability caused by those injuries.

In addition, the majority of the WCAB panel affirmed the WCJ’s opinion and held that the defendant was not entitled to credit for the overpayment/duplication of Labor Code § 4850 and temporary disability benefits based upon the defendant’s separate payments of disability allegedly beyond the 104-week benefit cap in Labor Code § 4656(c)(2). The majority of the WCAB panel found that the WCJ correctly determined that the applicant incurred two periods of temporary disability as a consequence of separate injuries (one related to the specific back injury and the second from continuous trauma to the applicant’s knees) and that the defendant properly paid for the new period of salary continuation and temporary disability under the continuous trauma claim for the applicant’s knees. The majority of the WCAB panel held that, even had the applicant not suffered a subsequent period of temporary disability due to his knee injury, it would, in its discretion under Labor Code § 4909, disallow the defendant credit for its alleged overpayment because the defendant voluntarily made payments to the applicant, without fault on the applicant’s part, and, because the amount of the alleged overpayment was large, allowing a credit would deprive the applicant of a substantial part of his permanent disability award, causing him undue hardship.

While Chairwoman Caplane concurred with the majority that Labor Code Section 4663(e) precludes apportionment of the permanent disability caused by the applicant’s back and cardiovascular condition between the two injury claims and that the issuance of a single award is appropriate, she dissented with respect to the applicant’s entitlement to two periods of Labor Code Section 4850 temporary disability indemnity benefits and would find instead that the applicant’s period of temporary disability ran concurrently for both injury claims.

Read the Zuniga noteworthy panel decision.

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