Apportionment Outline
 
This document is an outline prepared for a rating seminar held
In December 2004, by The California Applicant"s Attorney"s Association. It deals
with only some of the confusion created by SB899
Robert S. Havens was one of the speakers at this seminar for attorneys
C. NEW LABOR CODE SECTION 4664
1. LANGUAGE OF STATUTE
4664. (a) The employer shall only be liable for the percentage of permanent
disability directly caused by the injury arising out of and occurring in the
course of employment.
A) WHY "PERCENTAGE " NOT "APPROXIMATE PERCENTAGE" (4663)?
I'm not sure this has any substantial affect but it is noteworthy that the
doctor under 4663 is directed to apportion the "approximate" percentage of the
PD which is the direct result of the injury and the "approximate" percentage
"caused by other factors" and then, apparently this "approximate percentage"
somehow then becomes "the percentage" of PD directly caused by the injury. This
would seem to imply that one could argue that there was a triable issue as to
what is the "actual" percentage when all the doctor has given are "approximate"
percentages. Will one side or the other want to depose the AME every time
regarding "If this is 'approximate" what is the range of error? i.e. when you
say 20% could it just as likely be 25% or 15% or 30% or 10%? This raises issues
of giving the IW the benefit of the doubt. So if the doc apportions away 20-25%,
obviously the rating has to take away only 20%, even the AMA says when there are
two methods, use the one that produces the highest impairment.
LANGUAGE WHICH IS NOW GONE (LC4750)
An employee who is suffering from a previous permanent disability or physical
impairment and sustains permanent injury thereafter shall not receive from the
employer compensation for the later injury in excess of the compensation allowed
for such injury when considered by itself and not in conjunction with or in
relation to the previous disability or impairment.
The employer shall not be liable for compensation to such an employee for the
combined disability but only for that portion due to the later injury as though
no prior disability or impairment had existed.
THIS IS THE LANGUAGE THAT FUENTES RELIED ON. SO, DID THE LEGISLATURE INTEND TO
CHANGE FUENTES,"???
I guess Elliott will be talking about this, but I really think there is a good
argument that they have to be presumed to mean to do what they did, so we should
compute the increased dollar amount of the PD (assuming there is an increase)
and subtract the earlier dollar amount (when there is an F&A) regardless of
whether it is the same employer. The fairness issue is that applicants are
legally presumed to have increased disability.
Just speaking to the "prior award" issue first, this seems like the right thing.
The UEF will have to pay IF the disability is big enough (fits the requirements
of 4751), but if it doesn't, then why shouldn't the employee be protected. If
one interpretation safeguards the rights of the Employee and another
interpretation safeguards the rights of the Employer, shouldn't the court still
interpret the statute as protecting the Employee, all else being equal?
4664 (b) If the applicant has received a prior award of permanent disability, it
shall be conclusively presumed that the prior permanent disability exists at the
time of any subsequent industrial injury. This presumption is a presumption
affecting the burden of proof.
"PRIOR AWARD OF PERMANENT DISABILITY"
The statute uses the term award of permanent disability. In this context, I
think it only means after a trial or stipulated award. In those instances there
is a definite and specific percentage of disability that can be relied on. Once
everyone with non-AMA awards are retired (out of the labor market) this would be
a fairly easy proposition and appears on its face to be reasonable. ( if you
have a "permanent" disability, shouldn't it be "permanent"?
However, there will be big problems if the new schedule fails to "promote
consistency, uniformity and objectivity" (4660 b) The more disparity between an
"old" rating and a "new" rating, the harder this will be to apply. If a prior
award for "no repetitive bending" of 15% is based on a loss of 50% of the
ability to do bending of the spine, and a subsequent finding of 15% is based on
a spinal fusion, should the applicant be precluded from any recovery? (refine
this example)
The impression from the new DRAFT rating manual is that (most or all, but
certainly) back disability will be considerably lower under the new schedule. So
IWs with relatively minor prior awards, could be faced with new injuries which
are completely apportioned away. We need examples of this to fight the DRAFT new
manual on the issue of "consistency, uniformity and objectivity." We must have
uniformity and consistency of value in order for this section to work.
What about C& R's, are they prior awards? I say they are not, but that doesn't
mean that the defense will not be able to apportion to them. The doctors still
have to deal with those injuries and the disability resulting therefrom. But
since there is no convenient and definite amount of disability to subtract, the
doctors will have to deal with it. Judge Faust has suggested to me that if there
is a prior C&R based on a split of medicals, that, at a minimum, the lower of
the medicals (defense, usually) should be apportioned out. There is reason in
this argument, but I think based on 4663 (and "substantial medical evidence")
not on 4664.
What about Military Disability awards, Jones Act or out of state awards of
disability? I would argue the same thing, that unless the award is based on the
AMA guides, it cannot logically be subtracted from the current disability on any
reasonable (consistent, uniform or objective scientific) basis. If there is no
clear way to compare awards under this system with awards under another system,
then the judge should not apply this presumption, but should look to the medical
experts to clarify the issue by interpreting the "award" as an "other factor"
under LC 4663, rather than a "prior award" under LC 4664. This is the way it
always has been with prior civil personal injury settlements.
This same argument could apply to the "old schedule" vs "new schedule" awards.
It would make more sense to have a medical determination of what "approximate
percentage" of the current disability pre-existed the new injury, translating
the old award into the new method of evaluation. This could be done as a
"substantial medical evidence" issue. The judge would determine based on the
medical evidence in the current case ( which would have to include a review of
the medical evidence in the old case) the "nature and extent" of the old
disability under the new system. Then that amount of disability would be
"conclusively presumed" to exist.
"CONCLUSIVELY PRESUMED"
Blacks Law Dictionary defines a conclusive presumption as :
"A presumption that cannot be overcome by any additional evidence or
argument...Also termed absolute presumption; irrebuttable presumption; mandatory
presumption; presumption juris et de jure."
"EXISTS" AT THE TIME OF "ANY" SUBSEQUENT INDUSTRIAL INJURY
The old disability "exists" but it still needs to be described in current terms
or in AMA terms. Since there are no longer work restrictions to describe a
"disability," then how do we describe the disability which exists, but has only
been defined in a foreign or archaic language (work restriction). If an IW has
an old disability to his back, how can it be said that he has a "no heavy
lifting" restriction? That term has no "current" meaning. (assuming no
consistency or uniformity as the DRAFT now exists). All we know is there is some
old disability. The legislature could have said that it is conclusively presumed
that the prior PD "exists in the same percentage" but they didn't. It should be
up to medical experts, not the judge to redefine the old "existing" disability,
using the same scale of measurement. To do other wise would be to tell the judge
to subtract inches from centimeters, without first converting the inches to
centimeters. (or vice versa)
"PRESUMPTION AFFECTING THE BURDEN OF PROOF"
"A presumption affecting the burden of producing evidence is a presumption
''established to implement no public policy other than to facilitate the
determination of the particular action in which the presumption is applied.''
(Evidence Code 603.) The Law Revision Commission's comment on that section
states that [**11] such presumptions ''are not expressions of policy; they are
expressions of experience.'' They are intended solely ''to forestall argument
over the existence of the presumed fact when there is no evidence tending to
prove the nonexistence of the presumed fact.'' Typical of such presumptions is
the presumption that a mailed letter was received.
A presumption affecting the burden of proof, in contrast, is a presumption
''established to implement some public policy other than to facilitate the
determination of the particular action in which the presumption is applied.''
(Evidence Code 605.) The Law Revision Commission's comment on this section
states that presumptions affecting the burden of proof also are designed to
facilitate determination of the action in which they are applied. Superficially,
therefore, such presumptions may appear merely to be presumptions affecting the
burden of producing evidence. What makes a presumption one affecting the burden
of proof, according to the Commission, is the fact that ''there is always some
further reason of policy for the establishment of the presumption.'' An example
of such a presumption is the presumption in Labor Code 5402 that an injury
[**12] is compensable if liability is not rejected within 90 days after the
claim form is filed."
"The next question is what legal effect this presumption has. Evidence Code 601
states that a presumption is not evidence, it is a required assumption of fact.
Evidence Code 606 goes on to say that the effect of a presumption affecting the
burden of proof ''is to impose upon the party against whom it operates the
burden of proof as to the nonexistence of the presumed fact.'' (Emphasis added.)
The Law Revision Commission comment on that section notes that ''[i]n the
ordinary case, the party against whom it is invoked will have the burden of
proving the nonexistence of the presumed fact by a preponderance of the
evidence.''
(61 Cal. Comp. Cas 1055,) Rex A. Minniear, Applicant v. Mt. San Antonio
Community College District
This paragraph of Section 4664 shows just how ambiguous this law is. I would
interpret the "conclusive presumption" to be that disability "exists" and the
"burden of proof" to be on the applicant to show that it exists in some
"percentage" other than the amount of the "award." When the old and the new
disability are both determined under the same system or by the same standards of
measurement, then I think the presumption will be irrefutable. When the two
awards are to be calculated by different systems of measurement (work
restrictions vs AMA), then I think that the applicant has the burden of showing
that the prior disability "exists" in some lesser percentage (by AMA standards)
than the percentage of the prior award.
4664 (c)(1) The accumulation of all permanent disability awards issued with
respect to any one region of the body in favor of one individual employee shall
not exceed 100 percent over the employee's lifetime unless the employee's injury
or illness is conclusively presumed to be total in character pursuant to Section
4662. As used in this section, the regions of the body are the following:
(A) Hearing.
(B) Vision.
(C) Mental and behavioral disorders.
(D) The spine.
(E) The upper extremities, including the shoulders.
(F) The lower extremities, including the hip joints.
(G) The head, face, cardiovascular system, respiratory system, and all other
systems or regions of the body not listed in subparagraphs (A) to (F),
inclusive.
[LC 4662 Any of the following permanent disabilities shall be conclusively
presumed to be total in character:
(a) Loss of both eyes or the sight thereof.
(b) Loss of both hands or the use thereof.
(c) An injury resulting in a practically total paralysis
(d) An injury to the brain resulting in incurable imbecility or insanity.
In all other cases, permanent total disability shall be determined in accordance
with the fact].
"ACCUMULATION" (ADD OR COMBINE?)OF ALL PD AWARDS WITH RESPECT TO ANY ONE REGION
OF THE BODY OF ONE INDIVIDUAL
Now we have three words of art, "add" and "combine" are defined in the AMA. How
does "Accumulate" fit in? Does it mean add or combine, or something else. I
think it depends on the method of calculating the current disability. Since the
old disability "exists" only as a portion of the current disability, the part of
the current disability, which "existed"at the time of the current injury may be
something which is "combined" as part of the current injury or is "added" as
part of the current injury, depending on how the AMA handles that body part.
Assuming that old and new are both measured by the AMA standard, then I think
the doctor defines disability (within a region) as it exists and that disability
can not exceed 100% of that region.
WHAT ABOUT MDT (COMBINING)
The AMA "combination table" is similar to but not the same as the MDT. It is
worse. The AMA does not give the 10% of balance add on.
i.e. AMA (100-60 =40 x .2=8, so AMA 60+20=68 BUT under MDT (100-60=40 x.2 + 4,
MDT 60 +20 =72)
HOWEVER, there is no MDT in the DRAFT new schedule.
OVERLAP (AMA)
I don't think "overlap" is a concept that applies in AMA or, at least, not in
the same way, because AMA impairments are specific to parts of body. The AMA
system accounts for overlap by defining everything in terms specific to the body
part, so you don't have a "no heavy work" pulmonary, overlapping with a "no
heavy lifting"back. (or is this duplication??)(check how they do compare
pulmonary function and back function)
DOES THIS MEAN ANYTHING IN LIGHT OF AMA 100% OF WHOLE PERSON OR OF REGION (ARE
THESE THE SAME REGIONS AS AMA??)
This section seemed to me, at first, to imply that you could be 100% (totally
permanently disabled) with respect to any one "region of the body" and then be
50% with respect to another region. Thinking in old rating language, this is
better than before. But what if the legislature intended this statute to mean,
you can't get more than 100% "of any region" in your lifetime? (unless you loss
the sight of both eyes, use of both arms and legs, etc)
SHALL NOT EXCEED 100% LIFETIME
This section implies to me that you can get "more than 100%" in "accumulated"
awards, at least, if you have a pre-existing disability and then become
statutorily 100%. i.e., you have a 50% lung disability, then you lose the use of
both legs, and you get a new 100% disability from the new (leg injury) with a
new employer, not 100% minus 50% from that employer? Could this be right?
UNLESS "INJURY OR ILLNESS" CONCLUSIVELY PRESUMED TOTAL PER LC 4662
This paragraph uses "100%" and "total in character" do they mean the same thing?
See sub-section (c)(2) (below) about "same industrial injury"
REGIONS
A. HEARING ( Included in Chapter 11, AMA, with Face, etc Region G)
B. VISION (Chapter 12 AMA)
C. MENTAL AND BEHAVIORAL DISORDERS (Chapter 14 AMA,)
D. THE SPINE (Chapter 15 AMA)
E. THE UPPER EXTREMITIES INCLUDING THE SHOULDERS (Chapter 16 AMA)
F. THE LOWER EXTREMITIES INCLUDING THE HIP JOINTS (Chapter 17 AMA)
G. HEAD, FACE ,HEART, LUNGS ,OTHER
The head, face (Chapter 11 Ear, nose and throat, AMA), cardiovascular
system,(Chapters 3&4 AMA) respiratory system,(Chapter 5 AMA) and all other
systems or regions of the body not listed in subparagraphs (A) to (F),
inclusive. (Digestive 6, Urinary and Reproductive 7, Skin 8, Hematopoetic 9,
Endocrine 10, Central and Peripheral Nervous System, 10, Pain, 18)
4664 (c)(2) Nothing in this section shall be construed to permit the permanent
disability rating for each individual injury sustained by an employee arising
from the same industrial accident, when added together, from exceeding 100
percent.
Again it looks like you can get more than 100% so long as its not from one
injury. It does not say that you can't get more than 100% (or "total in
character") disability in your lifetime. Depending on whether it's possible
within the AMA, this section seems to say that you can get greater than 100% of
a whole person impairment, if "when added together" (not combined) your 30% back
and 40% psyche and 50% pulmonary "permanent disability awards" from different
injuries, leave you with an "accumulation" of 120%.
ISN'T THIS ALL NONSENSE BECAUSE PER AMA NO 100%?
SO CAN'T HAVE >100% FOR ONE INJURY
BUT THEN MULTIPLIERS ETC MIGHT INCREASE A 60 TO AN 80?
D. SHEFTNER VS RIO LINDO
"AN ORDER CLOSING DISCOVERY"
"For reasons discussed below, we hold that submission orders and orders closing
discovery, that issued prior to the enactment of SB 899 on April 19, 2004, are
"existing" orders that cannot be reopened due to the prohibition set forth in
Section 47. We also hold that absent existing orders as so defined the
amendments, additions, or repeals of SB 899 apply prospectively on or after
April 19, 2004, to all cases, regardless of the date of injury, unless otherwise
specified in SB 899.".........
Section 47 of SB 899 states:
"The amendment, addition, or repeal of, any provision of law made by this act
shall apply prospectively from the date of enactment of this act, regardless of
the date of injury, unless otherwise specified, but shall not constitute good
cause to reopen or rescind, alter, or amend any existing order, decision, or
award of the Workers' Compensation Appeals Board."
While this interpretation of "existing order" will result in the apportionment
statutes of SB 899 applying to fewer cases than would result from a more
restrictive interpretation, it is consistent with the requirement of our
Constitution that workers' compensation legislation "accomplish substantial
justice in all cases expeditiously, inexpensively, and without encumbrance of
any character." (Cal. Const. Article XIV, section 4.)
Therefore, we hold that the apportionment sections of SB 899 do not apply in
this case, because the case was submitted for decision prior to April 19, 2004
LC 4663 APPORTIONMENT, EFFECTIVE DATE
According to this case, if there was an order closing discovery before April 19,
2004, then the new 4663 does not apply. So what if there was and your judge sent
you back for another opinion on apportionment and you already have it? If you
don't like it can you throw it out? It seems like you can. The judge has to
follow the old law of apportionment in those cases. The same would apply to
cases in the midst of trial by April 19, 2004. Since there is no real
determination of what the new law about apportionment means, I would think that
the board would play it safe and allow the cases with orders before 4-19-04 to
be tried under the old, established, law of apportionment. The cases that
delineate what the new law means, ought to be cases where that law clearly
applies.
F. PETITIONS TO REOPEN
1. WILL APPORTIONMENT BE REOPENED?
DOES SHEFTNER ANSWER THIS ?
I'm not so sure about that, because, although the amendment or repeal of any
provision of law "shall not constitute good cause to reopen or rescind, alter or
amend any existing order, decision or award.." it does still "apply
prospectively from [April 19, 2004] regardless of the date of injury." So, if
you reopen for the "cause" that the applicant has suffered new and further
disability, doesn't the new law apply "regardless of the date of injury" or is
there some kind of "law of the case" argument, that exempts old injury cases
from trying to figure out the new law of apportionment. I would be very careful
about what cases I voluntarily reopened, until this law is clarified.
G. SUBSEQUENT INJURIES FUND
LC 4751 If an employee who is permanently partially disabled receives a
subsequent compensable injury resulting in additional permanent partial
disability so that the degree of disability caused by the combination of both
disabilities is greater than that which would have resulted from the subsequent
injury alone, and the combined effect of the last injury and the previous
disability or impairment is a permanent disability equal to 70 percent or more
of total, he shall be paid in addition to the compensation due under this code
for the permanent partial disability caused by the last injury compensation for
the remainder of the combined permanent disability existing after the last
injury as provided in this article; provided, that either (a) the previous
disability or impairment affected a hand, an arm, a foot, a leg, or an eye, and
the permanent disability resulting from the subsequent injury affects the
opposite and corresponding member, and such latter permanent disability, when
considered alone and without regard to, or adjustment for, the occupation or age
of the employee, is equal to 5 percent or more of total, or (b) the permanent
disability resulting from the subsequent injury, when considered alone and
without regard to or adjustment for the occupation or the age of the employee,
is equal to 35 percent or more of total.
Added Stats 1945 ch 1161 2. Amended Stats 1949 ch 1525 1; Stats 1955 ch 1092 1;
Stats 1959 ch 1034 1.
"IS PERMANENTLY PARTIALLY DISABLED"
I think there is a difference between having a "factor" and having a
"disability." If the court finds that apportionment can be to a "retroactive
prophylactic work restriction" (at least until disability is all AMA, with no
"work restrictions") then it would seem that the SIF might be responsible for
that "retroactive " disability. That is another reason that the law could be
interpreted to continue to prohibit such retroactivity. I think that the main
reason to prohibit the use of retroactive restrictions is that it allows a
doctor, in almost every case, to say "Well, see, this worker should not have
been doing this type of task because it injured him." It invites comparison to
other workers who might not have been injured and abandons the "underlying
principal" discussed in my article about policy considerations.
G. W ILL THERE BE PAYMENT BY THE S.I.F. FOR "FACTORS" OR "CONDITIONS" WHICH DO
NOT CONSTITUTE DISABILITY?
I don't think so. I don't think the policy of the subsequent injury fund is to
protect anyone other than "people with disabilities." People with "conditions"
or "factors" of disability that are non-disabling, are not intended to be
protected by this fund.. Who then is responsible? This goes back to the question
of whether the legislature intended to change the basic policy of "taking the
worker as you find him" and of whether Fuentes is no longer good law and that
the employer at the time of the second injury becomes liable for the actual
increased disability considered as it is and without being able to use the
now-deleted phrase "that portion due to the later injury as though no prior
disability or impairment had existed."(old 4750)
© Robert S. Havens, 2005
This article is for general information, and not meant as
specific legal advice. You should always see an attorney for specific legal
questions.
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