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Worker's Compensation Appeals Board Defers All Decisions Regarding Apportionment Under Old and New Rating Schedules

By: Scott M. Tilley, Esq.

Joseph Miller, Chairman of the Appeals Board, has issued a memorandum stating that the Board will defer to the California Supreme Court all further decisions regarding the calculation of permanent disability due under the new rating schedule when there is apportionment to an old injury under the prior rating schedule.

This position arises out of concern regarding a series of conflicting opinions in several Appellate Courts on the issue of apportionment. As most are aware, the Fifth Appellate District issued an opinion in E & J Gallo Winery v. WCAB (Dykes) which states that when calculating permanent disability after apportionment one is to subtract the dollar amount for the permanent disability resulting from the prior injury (using the PD rate in effect at the time) from the dollar amount of the total permanent disability (using the present PD rates). This is commonly known as “formula C”, as so noted by the Court in Fuentes v. WCAB.

The Fifth Appellate Court’s decision in Dykes was upheld in Nabors v. WCAB, a case issuing from the First Appellate District, Division Two. The Court in Nabors ruled that old dollars should be deducted from new dollars but limited its holding to a situation where the old injury and new injury occurred with the same self-insured employer.

To further complicate the issue, the First Appellate District, Division Three (not Division Two as in Nabors) issued an opinion in Brodie V. WCAB which agrees in principle with the holdings in both Dykes and Nabors but adds its own twist. The Brodie court held that when calculating permanent disability with apportionment between injuries falling under the old rating schedule and the new rating schedule, the current dollar value of the prior award is subtracted from the current dollar value of the current permanent disability (this is in contrast to the Dykes court which used old money value subtracted from new money value).

In direct conflict with the opinions in Nabors, Dykes and Brodie is the decision issued by the Third Appellate District court in Welcher v. WCAB. The Welcher Court held that the permanent disability percentage for the prior award should be deducted from the current permanent disability percentage (commonly known as “formula A” as noted in the Court in Fuentes).

These conflicting and inconsistent opinions issuing from the various Appeals Courts has caused the Board to put a halt on further decisions issuing from them until the Supreme Court or Legislature addresses the issue. Many in the community feel that this will do nothing but cause further problems by further clogging an already clogged system, encouraging Judges to issue opinions even more diverse than the ones already issued or cause cases to continue in an active status long after their natural life.

One glimmer of hope on this issue is the fact that cases are already being submitted to the California Supreme Court. Perhaps clarity is closer than it appears.
 

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