Home > Apportionment, Permanent Disability Rating > Court of Appeal Stands Up for the Law

Court of Appeal Stands Up for the Law

On November 10, 2011, the sun dawned on a very different California.  The air smelled the same, the food tasted the same, but there was something different.  That difference was the sound that filled the atmosphere – the sound of the Court of Appeal standing firm for the law, as it was written, and consequentially for employers and insurers across the state.

In its November 10, 2011 unpublished decision in the case of State Compensation Insurance Fund v. Workers’ Compensation Appeals Board (James Dorsett) (which was subsequently ordered published, thanks to the efforts of the California Workers’ Compensation Institute) the Court of Appeal ruled that Labor Code sections 4663 and 4664 applied to the case at hand.

The facts are fairly straight forward – applicant glazier allegedly sustained an injury to the cervical spine in 2000 while working for employer A; and then allegedly sustained a cumulative trauma injury over the period of November, 2002 through June, 2004 while working for employer B.  Both employers were insured by State Compensation Insurance Fund.

The agreed medical evaluator opined that, although there are two injuries, the cumulative trauma was a compensable consequence of the specific injury, and the two injuries are inextricably intertwined.  However, during his deposition, the AME testified that he would apportion the level of applicant’s disability 50-50 between the two injuries.

The matter proceeded to trial and the Workers’ Compensation Judge awarded application 100% disability, reasoning that the two injuries could not be parsed out, presenting just one single injury.  Therefore, no apportionment applied.

Defendant SCIF petitioned the Workers’ Compensation Appeals Board for reconsideration, arguing that an injury could not both be a compensable consequence and a separate injury, and that the Labor Code required apportionment in this case.

The WCAB denied defendant’s petition.

Declining to give into discouragement, defendant then petitioned the Court of Appeal for a writ of review.

The Court of Appeal, in granting defendant’s petition, reasoned that if the doctor can “parcel out the causation of disability,” then separate injuries must be apportioned, even if they become permanent and stationary on the same date.

In this case, the AME testified to a 50-50 split in causation between the two injuries, satisfying defendant’s burden of proving apportionment.

Your modest blogger is an admitted cynic – but it’s mornings like these that irresistibly inject a bit of optimism into everyday life.

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