California: Apportionment, Conclusive Presumptions and Labor Code Section 4662 (Part 1 of 2)

California: Apportionment, Conclusive Presumptions and Labor Code Section 4662 (Part 1 of 2)

Attention Lexis Online Subscribers: Citations link to lexis.com. Bracketed citations link to Lexis Advance.
Editor’s Note: The following is Part One of a two-part article.
Are there any circumstances under which apportionment will reduce a 100% PD finding under LC §4662 [4662]? In other words, when is a conclusive presumption, not conclusive?
Back in 2004, the California legislature was busy drafting a massive overhaul of the workers’ compensation system ultimately embodied in Senate Bill (SB) 899. But apparently they were a little unclear on the concept of what constitutes a “conclusive presumption” when they drafted LC §4664(b) [4664], which reads:
“If the applicant has received a prior award of permanent disability, it shall be conclusively presumed that the prior permanent disability exists at the time of any subsequent industrial injury. This presumption is a presumption affecting the burden of proof.” (Emphases added)
The first line of the statute works fine. The problem arises with that second line of LC §4664(b). It defies the classification of presumptions as set forth in Evidence Code §601 [601], which is,A presumption is either conclusive or rebuttable. Every rebuttable presumption is either (a) a presumption affecting the burden of producing evidence or (b) a presumption affecting the burden of proof.
As the 4th DCA stated so succinctly in the case of Gayton v. Pacific Fruit  Express Co. (1932) 127 Cal. App. 50 [127 Cal. App. 50], “It is well established in California that where the law establishes a conclusive presumption, evidence will not be received to contradict it.” Contrary to the language of LC §4664(b), a conclusive presumption can never be a “presumption affecting the burden of proof”, because, by definition, evidence can never be received to contradict it.
These conclusive presumptions can be a bit of a challenge to understand, apparently even for the legislature, who creates them. Legislative intent, therefore, becomes a bit of a challenge as well.
SB 899 Substantially Changed the Apportionment Statutes
In the case of E.L. Yeager v. WCAB (Gatten), (2006) 145 Cal. App. 4th 922; 71 Cal. Comp. Cases 1687 [71 Cal. Comp. Cases 1687], the 4th DCA explained how the 2004 reform legislation of SB 899 drastically changed the way apportionment was to be calculated. By completely revamping the apportionment statutes of LC §§4663 [4663] & 4664, the legislature intended to make it easier to prove apportionment and “to limit the employer's liability under certain circumstances.”
Although SB 899 made it substantially easier for a permanent disability (PD) award to be reduced by apportionment, it didn’t touch the conclusive presumption statute of LC §4662, which reads:
“Any of the following permanent disabilities shall be conclusively presumed to be total in character:
(a) Loss of both eyes or the sight thereof.
(b) Loss of both hands or the use thereof.
(c) An injury resulting in a practically total paralysis.
(d) An injury to the brain resulting in incurable mental incapacity or insanity.
In all other cases, permanent total disability shall be determined in accordance with the fact.” (Emphasis added)
Legislative Intent Regarding Apportionment and LC §4662
By not touching LC §4662, did the legislature intend for all five scenarios under that section to be deemed conclusively presumed to be 100% PD?
Or, if by failing to insert specific language in LC §4663 and all sections of LC §4664 exempting LC §4662 from application of apportionment, did it intend apportionment to apply to LC §4662 100% PD cases?
Over the years, the courts have gone both ways on the issue.
Some courts have held that apportionment does not apply to LC §4662 cases, since it’s a conclusive presumption that PD is 100%, and therefore “no evidence may be received to contradict that presumption.”
Other courts have held that the legislature did carve out an exception to the apportionment application rule in LC §4664(c)(1), but failed to carve out similar exception in any of the other sections of LC §4664 and nowhere is an exception found in LC §4663. Therefore, apportionment rules should apply, even when LC §4662 finds an injured worker to be conclusively presumed 100% PD.
© Copyright 2013 LexisNexis. All rights reserved. 

___________________

California WCAB Noteworthy Panel Decisions Reporter 
Get the edge on recent case law developments 
Designed especially for Lexis.com subscribers, this monthly reporter saves you research time so that you can quickly find recent panel decisions on key topics.
Purchase here (Beginning with January 2013 issue, PDF only).
For more information about LexisNexis products and solutions connect with us through our corporate site.