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Bookout applied by panel to determine overall combined disabilities of prior and subsequent injuries through addition rather than use of the combined values chart.
The intent of Labor Code section 4751 is clear: to provide employees with preexisting disabilities the opportunity to become employed without the employer becoming responsible should the employee incur a subsequent industrial injury that results in additional permanent disability. (Ferguson v. Industrial Acc. Comm. (1958) 50 Cal. 2d 469 [23 Cal. Comp. Cases 108].) But even with its undeniable intent, the provisions of the section can be quite confusing in their application. One aspect of the statute over which there has been disagreement concerns the proper method of determining the employee’s overall disability. Must the Combined Values Chart (CVC) or its predecessor, the Multiple Disabilities Table (MDT) be applied? That conundrum was recently answered by a unanimous panel in Christopher Kudelka v. City of Costa Mesa (Kudelka) 2019 Cal. Wrk. Comp. P.D. LEXIS 436. The panel found Bookout v. Workers’ Comp. Appeals Bd. (1976) 62 Cal. App. 3d 214 [41 Cal. Comp. Cases 595] to be applicable and held that the WCJ properly determined Kudelka’s overall combined permanent disability under section 4751 by adding his prior and subsequent disabilities.
Kudelka, a firefighter, sustained a cumulative industrial injury to his heart in the form of aortic valve replacement and received an award of 36% permanent disability. Several years later he sustained a second cumulative industrial injury to multiple body parts, including hypertensive heart disease, that was ultimately found to have caused permanent disability of 76%, after apportionment, but with no apportionment to the earlier aortic valve replacement award, which was found to be a separate and distinct industrial injury.
Kudelka then filed an application for benefits from the Subsequent Injury Benefit Trust Fund (SIBTF). He claimed that his prior award of 36% permanent disability for the aortic valve replacement should be added to his subsequent non-overlapping award of 76% to produce permanent and total disability. SIBTF, on the other hand, argued that Kudelka’s prior and subsequent disabilities should be combined by use of the CVC to produce permanent disability of 85%. Following a trial, the WCJ reaffirmed the finding of 76% permanent disability caused by the subsequent industrial injury. She also found that Kudelka had a 36% preexisting labor disabling impairment (aortic valve replacement). After finding that Kudelka satisfied the requirements of section 4751, the WCJ added the prior and subsequent disabilities and issued an award of 100% permanent disability with SIBTF liability.
SIBTF sought reconsideration contending that Kudelka’s prior disability was not labor disabling as required by section 4751, and that the finding of 100% permanent disability is in error because the WCJ did not use the CVC to calculate overall disability.
The panel decision is instructive as a primer on SIBTF liability, and practitioners will find it provides clarity on a topic that to so many seems unduly complex. The decision examines each component of section 4751. Briefly, it concludes that Kudelka’s prior heart injury is a labor-disabling impairment based on time lost from work, the need for ongoing treatment, the fact that Kudelka was symptomatic at the time of his subsequent injury, and the lack of evidence of rehabilitation. Additionally, Kudelka received an award of permanent partial disability for the valve replacement. In reaching this conclusion, the panel applied Ferguson, supra.; Escobedo v. Marshall (2005) 70 Cal. Comp. Cases 604 (Appeals Bd. en banc); Ruiz v. Workers’ Comp. Appeals Bd. (2013) 78 Cal. Comp. Cases 1182 (writ den.); and Dittler v. Workers’ Comp. Appeals Bd. (1982) 131 Cal. App. 3d 803 [47 Cal. Comp. Cases 492]. The decision reminds us that the prior labor disablement need not be reflected by a loss of earnings. (Smith v. Indus. Acc. Comm. (1955) 44 Cal. 2d 364.) What is most significant about the decision, however, and, thus, the focus of this discussion, is the conclusion that overall combined disability is determined by adding the prior non-overlapping disability to the subsequent disability.
The panel’s conclusion that overall combined disability under section 4751 is determined by adding together the prior and subsequent disabilities relies, in part, on Bookout v. Workers’ Comp. Appeals Bd., bolstered by language in both the CVC and the MDT. In Bookout an oil worker (Bookout) sustained an industrial injury to his back that caused a limitation to semi sedentary work (60% standard). He had a prior non-industrial heart disability that caused a preclusion from heavy work (30% standard) as well as a preclusion from excessive emotional stress (12% standard). The WCJ awarded Bookout 30.5% permanent disability for the industrial back injury, based on a rating of 65%, less apportionment of 34.5%, attributable to the non-industrial heart disability. The WCJ denied Bookout SIBTF benefits by attributing to the subsequent back injury the same 30.5%, which is less than the minimum of 35% for a subsequent injury under section 4751. Bookout sought reconsideration and the Appeals Board affirmed the WCJ’s award.
On review, the Court of Appeal affirmed the finding of 30.5% permanent disability attributable to the industrial back injury, but determined that Bookout was erroneously denied SIBTF benefits under section 4751 because the rater apportioned the 34.5% nonindustrial heart disability from the subsequent industrial back disability of 65%, instead of using the total disability for the subsequent injury, standing alone and without regard to or adjustment for the age and occupation of the employee, as required by section 4751. Thus, for purposes of SIBTF liability, the permanent disability attributable to the subsequent industrial back injury was 60%, which is greater than the minimum requirement of 35% in section 4751.
The Court of Appeal then observed that the WCJ had instructed the rater to treat the preexisting and subsequent disabilities as arising from a single injury for purposes of calculating overall disability. The rating specialist combined the disabilities by use of the MDT. The preclusion from heavy work attributable to the preexisting nonindustrial heart disability was found to be subsumed by and overlapped the permanent disability attributable to the subsequent industrial back disability that was based on a limitation to semi-sedentary work. The preclusion from excess emotional stress caused by the preexisting heart disability was found to have caused 12% permanent disability. Based on the WCJ’s instructions, the rater combined the 12% non-overlapping heart disability with the 65% permanent disability attributable to the subsequent back injury by use of the MDT, resulting in 70.5% permanent disability. The Court of Appeal rejected use of the MDT and held that the 12% non-overlapping heart disability should have been added to the 65% instead, resulting in 77% overall disability.
The Kudelka panel endorses the holding in Bookout that non-overlapping successive disabilities are to be added together. It points out that the Court of Appeal rejected the rating instructions to treat both the preexisting and subsequent disabilities as a single injury, requiring use of the MDT. Of significance, while acknowledging that section 4751 uses the words “combination” and “combined” in reference to the prior and subsequent disabilities, the panel observes that those two words do not denote a specific method of how to combine disabilities. Simple addition, the panel states, is one method of combining, and use of the CVC/MDT is another method of combining. But as to use of the CVC/MDT to rate prior and subsequent disabilities, the panel finds language within the 2005 and 1997 PDRS to be indicative of the inference that the CVC/MDT are intended to rate disabilities arising from a single injury. Additionally, the panel finds further support in Mihesuah v. Workers’ Comp. Appeals Bd. (1976) 55 Cal. App. 3d 720 [41 Cal. Comp. Cases 81], wherein the Court acknowledged that the purpose of the MDT is to avoid overlap between any disabilities and impairments, or pyramiding when rating a single injury.
The Kudelka decision may not be the final word on the proper method to determine overall disability under section 4751 of an injured worker with prior and subsequent disabilities. After all, the SIBTF routinely and vigorously defends against assertions of Fund liability. Nonetheless, practitioners should not be surprised if WCJs and future Appeals Board panels pay close attention to the persuasive rationale underlying the panel’s erudite decision. The most likely forecast is that addition will reign preeminent as the proper method to combine non-overlapping prior and subsequent disabilities under section 4751. Bookout remains persuasive authority on that important issue.
Practitioners should check the subsequent history of any cases before citing to them.
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