The Court of Appeal 1st District) has issued an opinion reversing a 100% award for an employee where the Court determined the WCJ and W.C.A.B. ignored substantial evidence of apportionment and remanded the case back to the W.C.A.B. to more fully consider that specific issue.
In Acme Steel v W.C.A.B. (Borman) the applicant filed a claim for multiple body parts and was evaluated by AME physicians in orthopedics, neurology and otolaryngology (hearing loss). The hearing loss evaluation, which is the only condition discussed in the appellate opinion, reported the employee had a 100% loss of hearing which was related in part to employment (60%) and in part to non-occupational factors. The “occupational” portion of the conditional also included consideration for the employee’s prior injury which he testified resulted in a 22% PD award and which was reported by Dr. Schindler (the AME for the hearing loss) as a 37.5% hearing loss based on a report of a previous ENT evaluation. In addition to the medical reports, the applicant presented testimony from a vocational expert that the employee as a result of the combination of factors including his near total hearing loss with cochlear implants was unable to work and had a total diminished earning capacity.
The WCJ awarded applicant an unapportioned 100% PD. As reported by the Court:
The WCALJ found Borman effectively rebutted any Diminished Future Earnings Capacity (DFEC) and showed 100 percent loss of earning capacity entitling him to permanent and total disability. The WCALJ based the latter finding on expert vocational testimony proffered by Borman showing there was no job in the open labor market that could accommodate Borman’s “difficulty with oral communications, limitations with use of the upper extremities, limited mobility, need for daily narcotic medication, rests and serious headaches.” Additionally, the WCALJ found that “Labor Code section 4664[ ] is not pertinent as prior to the instant cumulative trauma injury there was no earnings loss due to the prior award of permanent disability for hearing loss,” reasoning that “Borman continued to work [after] the prior award for prior hearing loss, [and his] hearing loss progressed to the point where he required implants, which . . . have severe limitations.”
The W.C.A.B. in response to defendant’s Petition for Reconsideration, adopted and incorporated the WCJ’s opinion and denied the appeal. The Court of Appeal however saw the case quite differently especially on the requirement for the W.C.A.B. to consider the issue of apportionment. Quoting extensively from the Supreme Court decision in Brodie v W.C.A.B. the Court noted the strong public policy that employers were only to be charged with the disability attributable to their injury.
In short, the “clear intent” of the Legislature in enacting Senate Bill No. 899 was “to charge employers only with that percentage of permanent disability directly caused by the current industrial injury.” (Brodie, supra, 40 Cal.4th 1313, 1332; see also State Comp. Fund, supra, 201 Cal.App.4th 443, 451.) “Therefore, evaluating physicians, the WCJ, and the Board must ‘make an apportionment determination by finding what approximate percentage of the permanent disability was caused by the direct result of injury arising out of and occurring in the course of employment and what approximate percentage of the permanent disability was caused by other factors both before and subsequent to the industrial injury, including prior industrial injuries.’ [Citations.]” (State Comp. Fund, supra, at p. 451, italics added.) Indeed, apportionment is excused only under extremely “ ‘limited circumstances, . . . when the evaluating physician cannot parcel out, with reasonable medical probability, the approximate percentages to which each distinct industrial injury causally contributed to the employee’s overall permanent disability. . . .’
The Court then proceeds to criticize the W.C.A.B. for its failure to consider the substantial medical evidence to support apportionment of the hearing loss, attributed by the WCJ as the principal basis for the finding of 100% PD, contained in Dr. Schindler’s report. The Court also rejected several arguments raised by applicant to challenge the evidence on apportionment:
Faced with this unrebutted substantial medical evidence from the AME, the WCAB should have parceled out the “causative sources—nonindustrial, prior industrial, current industrial—and decide[d] the amount directly caused by the current industrial source.” (Brodie, supra, 40 Cal.4th 1313, 1328.)
Borman’s arguments to the contrary are unpersuasive. In this regard, we reject Borman’s contention that Dr. Schindler’s reports and opinions do not constitute substantial evidence of apportionment. Borman also asserts his testimony that he received a 22 percent permanent disability award for hearing loss sustained as a result of an explosion in 1994 is unreliable hearsay. However, it is irrelevant to apportionment whether or not Borman in fact received a prior 22 percent permanent disability award for hearing loss. (See Benson, supra, 170 Cal.App.4th 1535, 1549–1550, & fn. 14 [apportionment required for prior injury regardless of whether worker received prior award of permanent disability for the injury].) In sum, the WCAB’s failure to apportion the hearing loss portion of the current cumulative trauma is contrary to the law, and, as a consequence, the award must be annulled.
In a footnote the Court also rejected the argument which had apparently been adopted by the WCJ, that the lack of actual prior earnings loss dictated that apportionment was not legally indicated. The court dealt quite directly with the argument as follows:
At oral argument, Borman pressed his contention that since (1) there can be no disability for hearing loss under section 5412 until there is evidence of time lost from work (citing County of Los Angeles v. Workers’ Comp. Appeals Bd. (Gregg) (1982) 47 Cal.Comp.Cases 1215, 1216); (2) there is no evidence he lost time off work for a hearing loss injury related to the 1993 explosion; and (3) under section 5500.5 petitioner is responsible for the combined exposure to noise from his entire work life from 1972 to 2003, thus there is no prior cumulative trauma injury for which to apportion preexisting disability. This contention confuses the fact of an injury and a finding of disability, ignores the 2004 Legislative mandate that an employer is only liable for “that percentage of permanent disability directly caused by the current industrial injury” (Brodie, supra, 40 Cal.4th 1313, 1332 [italics added]), and, moreover, is foreclosed by the Benson court’s conclusion that apportionment is required for a prior injury regardless of whether the claimant received a prior award of permanent disability for the injury, (see Benson, supra, 170 Cal.App.4th 1335, 1549–1550, & fn. 14 [also noting the 2004 revisions reflect “the Legislature’s intent to require apportionment on an injury-by-injury basis, and no longer only for ‘previous permanent disability’ ”]).
The case was remanded for the W.C.A.B. to make an award consistent with the Court’s Opinion.
DISCUSSION AND COMMENTS:
This case was originally issued as an Unpublished decision of the court and was ordered for publication at the request of CWCI by Michael Marks and the California Workers’ Compensation Defense Attorney’s Association by Yvonne Lang (President).
While I am not privy to the briefs filed in this case, I suspect one of the issues that was also presented was the argument that is currently in vogue with many applicant attorney and apparently by some WCJs that apportionment cannot be made where there is vocational evidence that the “injury” resulted in a complete loss of earnings even where the medical evidence parcels out causation for the medical conditions. This argument has been advocated by CAAA in multiple programs over the past few years and is actively advocated by many of the experts they use.
While the court does not discuss this issue directly, the language it quotes from Brodie v W.C.A.B. and in particular its discussion in the final footnote, suggest that such an approach is not consistent with the provisions of either Labor Code § 4663 or 4664. The Court’s emphasis of the language that “physicians, WCJs and the W.C.A.B. MUST make an apportionment determination” based on the effects of the injury provides compelling authority that simply slipping into a vocational evaluation to decide the ultimate disability does not eliminate consideration of Labor Code 4663/4664.
Kudos to CWCI and the CWCDAA for actively seeking publication of this significant decision.
© Copyright 2013 Shaw, Jacobsmeyer, Crain & Claffey PC. All rights reserved. Reprinted with permission.
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