“In Nabors WCAB
Confirms Calculations of PD After Apportionment”
by Scott M. Tilley, Esq.
On June 9, 2005, the Workers’ Compensation Appeals Board (WCAB) in
Nabors v. Piedmont Lumber & Mill Co., an en banc decision, confirmed
the holding in Fuentes v. WCAB (1976) 41 CCC 42, and provided some
clarification on how to determine an applicant’s current permanent
disability when there is apportionment to prior disability per Labor
Code § 4663/4664.
Mr. Nabors suffered injury to his back and lower extremities as a
result of a cumulative trauma ending in August 2002 while employed
with Piedmont Lumber & Mill Company. In the case-in-chief, Mr.
Nabors was found by the WCJ to have 31% permanent disability after
consideration of apportionment. The apportionment was based on a
1996 Stipulated Award with the same employer wherein there was a
stipulation of 49% permanent disability for the low back and lower
extremities.
The Applicant filed a Petition for Reconsideration objecting to the
method of calculation used in determining the remaining permanent
disability after apportionment. The WCJ and the DEU, following
Fuentes, had simply subtracted the prior Award percentage (49%) from
the present percentage (80%) and arrived at 31% permanent disability
after apportionment. The 31% rating was equivalent to $22,610.00.
The Applicant contended that it should be the dollar amount that is
subtracted. The permanent disability from the cumulative trauma
equaled 80% for an equivalent of $118,795.00. The permanent
disability from the prior Award of 49% was equivalent to $42,476.00.
The applicant argued that he was entitled to the monetary difference
which was $72, 319.00.
The WCAB, confirming that Fuentes is still controlling in a post
SB-899 world, indicated that the WCJ had calculated the permanent
disability correctly. When determining permanent disability after
apportionment per L.C. § 4663/4664, we are to subtract the
percentage of disability being apportioned from the current
percentage of permanent disability.
As we can see, the difference in the two approaches is dramatic,
especially when dealing with high percentages of permanent
disability. In a time when apportionment seems to be at issue with
almost every case, practitioners need to confirm that the proper
calculations are being performed.
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