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WCAB ISSUES EN BANC DECISION ON THE ISSUE OF APPORTIONMENT
By Thomas L. Bolinger, Esq.
By Brian S. Grosenbach, Esq.
Eric Pasquotto v. Hayward Lumber, Connecticut Indemnity
Insurance Company; and Athens Administrators 8 WCAB Rptr. 10,086 (GRO
0028153 and GRO 0028394)
The Workers’ Compensation Appeals Board recently issued an en banc
decision on February 27, 2006 in which it found that an Order
Approving Compromise and Release was not a Permanent Disability
Award within the meaning of Labor Code 4664 (b).
In particular, the Appeals Board concluded in its well-written
decision that:
(1) An order approving a compromise and release agreement, without
more, is not a “prior award of permanent disability” within the
meaning of Labor Code 4664 (b).
(2) Where there is no “prior award of permanent disability” within
the meaning of Labor Code 4664 (b), the medical reports and other
evidence relating to a prior industrial injury that was settled by a
compromise and release still may be relevant in determining whether
any of the permanent disability found after a subsequent industrial
injury was caused by “other factors” under Labor Code 4663.
(3) The concept of medical rehabilitation from a prior industrial
disability remains viable under Labor Code 4663; however, even if an
injured employee has medically rehabilitated from a prior industrial
disability, this does not necessarily preclude a prior industrial
injury from being an “other factor” causing the employee’s present
disability.
When considering the facts of this case the trial judge issued a
decision apportioning all of a truck driver’s permanent disability
to a prior injury, the claim for which had been settled for
$35,000.00. The trial judge had concluded that under Labor Code
4664(b) defendant had established the existence of a “prior award of
permanent disability,” i.e., the order approving compromise and
release, as to which a “prior award is conclusively presumed to
exist.
However, the WCAB en banc decision rescinded the trial judge’s
findings as it was found the WCJ had not considered Labor Code 4663.
The cases involved three industrial injuries sustained by the
applicant. The first injury was resolved by way of Compromise and
Release. The two subsequent injuries, involving a different
employer, came before the Appeals Board with the parties disputing
the issue of apportionment.
The applicant sustained the first injury to his low back on May 9,
1998. The case was resolved by way of a Compromise and Release on
October 15, 1999. The settlement amount was $35,000.00, less credit
for permanent disability advances. The Agreement included a
provision indicating that permanent disability was an issue that was
being settled. No where in the Agreement was there any Stipulation
Representation by the parties as to the percentage of permanent
disability or the factors of disability caused by the injury
sustained on May 9, 1998.
While working for a different employer, applicant sustained two
additional injuries to his back. One injury occurred in December
2001 and the other occurred on August 2, 2002.
Both parties obtained QME reports in orthopedics. The defense report
was dated September 15, 2003, approximately seven months before the
passage of SB 899. In that report, the defense QME concluded that
the applicant would have had 50% of his current level of lumbar
spine disability in the absence of the two industrial injuries.
Applicant obtained an orthopedic QME report on May 17, 2004,
approximately one month after the passage of SB 899. The applicant’s
QME opined that apportionment is not indicated. There were no
grounds for apportionment to pre-existing industrial or
non-industrial factors.
On September 28, 2004, the applicant’s two cases proceeded to trial.
At the hearing regarding the two subsequent injuries with Hayward
Lumber defendant raised the issue of apportionment. In particular,
after taking all the evidence into consideration, the WCJ issued a
Joint Findings and Award on December 15, 2004 finding that defendant
had established the existence of a “prior award of permanent
disability”, i.e., the October 15, 1999 order approving compromise
and release.
Applicant sought reconsideration contending that (1) Labor Code 4664
(b) was inapplicable because the injuries occurred before its
effective date, (2) there was no “prior award of permanent
disability” within the meaning of Labor Code 4664 (b) because the
October 15, 1999 order approving compromise and release neither
awarded PD nor made any determination regarding the extent of PD,
and (3) Labor Code 4664 (b) created a rebuttable presumption that
had been rebutted by evidence that the applicant had recovered from
his May 9, 1998 injury.
Reconsideration was granted, which the WCAB found, as referenced
above, that, without more, an order approving compromise and release
is not “an award of permanent disability” within the meaning of
Labor Code 4664 (b).
Therefore, if a claimant has a previous case that was resolved by
way of a Compromise and Release, it is imperative that his medical
file be subpoenaed and reviewed by the examining physician for the
purpose of appropriately addressing the issue of apportionment.
Merely providing the examining physician with a copy of the
Compromise and Release and the Order Approving form the previous
case will not be sufficient.
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