What the panel ordered
Findings and Order of October 29, 2018 rescinded and replaced; defendant's petition for third-party credit deferred pending WCJ determination under Associated Construction method.
Decision after Reconsideration correcting prior December 21, 2020 decision and rescinding WCJ Findings and Order of October 29, 2018, replacing it with new Findings and Order.
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.
The board corrected the prior decision to accurately reflect the comparative negligence percentages of the parties involved, including the applicant, third-party truck driver, and defendant employer, and clarified the method for calculating third-party credit based on total damages rather than settlement amount, leading to a mixed outcome with deferred credit determination.
From the decision · page 1We issued an Opinion and Order Granting Petition for Reconsideration on Board Motion in this matter on February 18, 2021 (February Order) to study further the legal and factual issues raised by the Petition for Reconsideration. (Lab. Code, § 5900(b).) This is our Opinion and Decision after Reconsideration.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Applicant's injury occurred on February 4, 2014, involving lumbar spine, right hip, and right knee.
Favours neutral
Establishes the basis for the workers' compensation claim and comparative negligence analysis.
From the decision · page 4FINDINGS OF FACT 1. the applicant, born [], while employed on 2/4/2014, as a
Comparative negligence apportioned as 90% to defendant employer, 5% to third-party truck driver Jeremy Bell, and 5% to applicant.
Favours neutral
Determines the fault distribution affecting third-party credit calculation and liability.
From the decision · page 4maintenance crew supervisor at Costa Mesa, California, by COUNTY OF ORANGE administered by YORK RISK SERVICES GROUP, INC, sustained injury arising out of and occurring in the course of employment to his employment to his lumbar spine, right hip, and right knee. 2. The comparative fault for the February 4, 2014 accident resulting in applicant's industrial injury is as follows: 90% due to the negligence of defendant County of Orange employees other than applicant; 5% due to the negligence of third-party truck driver Jeremy Bell; and, 5% due to applicant's negligence.
Defendant's petition for third-party credit against future benefits deferred pending WCJ determination using Associated Construction method based on total damages, not just settlement amount.
Favours neutral
Defers final credit determination to ensure proper calculation and fairness in credit application.
From the decision · page 5IT IS ORDERED that defendant's petition for an award of a third-party credit against future benefits is deferred pending determination by the workers' compensation administration law judge of defendant's entitlement to such a credit pursuant to the method enunciated in Associated Construction & Engineering Co. v. Workers' Comp. Appeals Bd. (1978) 22 Cal.3d 829, 843 and fn. 10 [43 Cal.Comp.Cases 1333].
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Associated Construction & Engineering Co. v. Workers' Comp. Appeals Bd. (1978) 22 Cal.3d 829
The board must determine the degree of fault of the employer and the total damages to which the employee is entitled, denying employer credit until the ratio of contribution corresponds to proportional share of fault, granting credit only when employer's contribution reaches this level to prevent employer profiting from own wrong.
Applied to correct calculation of third-party credit and comparative negligence in this case.
From the decision · page 1We now correct the Opinion and Decision after Reconsideration issued on December 21, 2020 (December Decision), to reflect the comparative negligence of third-party employee truck driver, Jeremy Bell, and to reflect the method of calculation of credit pursuant to Associated Construction & Engineering Co. v. Workers' Comp. Appeals Bd. (1978) 22 Cal.3d 829 [43 Cal.Comp.Cases 1333]. These two corrections require that we rescind the Findings and Order issued by a workers' compensation administrative law judge (WCJ) on October 29, 2018 and replace it with a new Findings and Order.
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About this page
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