ADJ12319674 — California WCAB decision

What the panel ordered

WCAB affirmed the WCJ's Findings, Award and Order, awarding applicant 66% permanent disability after apportionment per Labor Code section 4664(c)(1)(G).

Petition for Reconsideration filed by applicant from the October 7, 2020 Findings, Award and Order; WCJ found industrial cumulative trauma injury with 66% permanent disability after 34% apportionment; WCJ's Report recommended denial of Petition; WCAB issued Decision After Reconsideration affirming WCJ's decision.

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What was disputed, and how it came out

Each issue the panel decided, with the reasoning it gave. An outcome is what this panel did on this record — not a rule, and not a prediction.

ApportionmentDefendant prevailedhead, face, cardiovascular system, respiratory system, and other regions not listed in subparagraphs (A) to (F)

Defendant established prior awards of permanent disability to the same body region totaling 34%, limiting applicant's lifetime permanent disability to 100% under Labor Code section 4664(c)(1)(G). Applicant's argument against apportionment based on rebuttal of scheduled rating was rejected as unsupported by controlling authority.

The facts that decided it

What the panel treated as outcome-determinative, and which side it favoured.

Defendant established prior permanent disability awards totaling 34% to the same body region as applicant's current injury.

The rules the panel named

Authorities as the decision cited them, with how this panel applied each one.

Sanchez v. County of Los Angeles (2005) 70 Cal.Comp.Cases 1440

Defendant must establish existence of prior permanent disability award for the same body region to apply apportionment under Labor Code section 4664(c)(1).

Applied to determine defendant's burden of proof for prior awards.

From the decision · page 3In the en banc decision in Sanchez v. County of Los Angeles (2005) 70 Cal.Comp.Cases 1440, the Appeals Board held that defendant must establish the existence of a prior award of permanent disability for the same region of the body. This may be established through judicial notice.

Labor Code section 4664(c)(1)(G)

The accumulation of permanent disability awards for any one body region cannot exceed 100% over the employee's lifetime unless conclusively presumed total under section 4662.

Applied to limit applicant's permanent disability award to 66% after 34% prior award.

From the decision · page 31 Labor Code section 4664(c)(1) provides:

Kopping v. Workers' Comp. Appeals Bd. (2006) 142 Cal.App.4th 1099

Employer must establish overlapping disabilities for apportionment under Labor Code section 4664(b), but here only section 4664(c) applies to limit lifetime awards.

Clarified burden of proof for overlapping disabilities and lifetime cap application.

From the decision · page 5Subsequently, in Kopping v. Workers' Comp. Appeals Bd. (2006) 142 Cal.App.4th 1099 [71 Cal.Comp.Cases 1229], the court held that when considering apportionment under Labor Code section 4664(b), the employer carries the burden to establish the existence of overlapping disabilities between the prior awards and the current injury. However, there is no issue of section 4664(b) apportionment here. Rather, the question here is whether defendant has established the existence of applicant's prior awards of permanent disability which affect the same region of the body as applicant's current injury. Upon a finding that defendant has done so, the amount of permanent disability applicant may receive in his lifetime for disabilities affecting each region of the body specified in section 4664(c)(1) is limited to 100%. Unless the new injury causes disability that is conclusively presumed to be total under section 4662, which is not applicable here, the sum of the permanent disability awards for any one body region cannot exceed 100%.

ADJ12319674 · June 10, 2021

What the panel ordered

What was disputed, and how it came out

The facts that decided it

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The rules the panel named

What proof carried it

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