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California Workers’ Comp.; Preexisting Industrial Injury Apportionment

Anaheim, CA |

In; “The New Apportionment Law”
By Hon. Mark Kahn; January 2006; it states:
Section 5500.5 was not changed by SB 899. In another footnote to Escobedo the WCAB wrote that the last paragraph of section 5500.5(a) also precludes the apportionment of permanent disability to any prior, uncompensated cumulative industrial trauma in a cumulative injury case.
I have a (Preexisting uncompensated cumulative industrial trauma); that the QME used to apportion my current Industrial Specific Industrial Injury; in his LC 4663 report. I found this in note in Escobedo; and this Mark Khan statement online. I read some of the citing. My question is can I prevent my (Preexisting uncompensated cumulative industrial trauma); from being Apportioned by the WCJ and WCAB using this WCAB note in Escobedo?

The CT was from 1999 to 2003; the Specific Industrial Injury DOI is in 2003. I did not file a claim between 1999 thru 2003. After the 2003 Specific Industrial Injury; I filed a separate claim; with a separate Claim # for the (Preexisting uncompensated cumulative industrial trauma). In 2004 the WCJ ruled that there was No cumulative trauma from 1999 to 2003; and denied any further benefits. Please note that the WCJ did not just rule that there was no industrial CT; the WCJ ruled that there was no CT period. The WCJ has now apparently reversed herself, because she used the CT in the QME LC 4663 report to apportion the Specific Industrial Injury.

Attorney Answers 2


  1. first of all QME's make mistakes all the time - if in fact it is not an accurate depiction of the apportionment then the court will not follow it - you will need to just make an appropriate argument

    we will not take any action on this case until we have a signed retainer agreement


  2. I suggest you check this page for up to date information on apportionment: http://www.wcwebzine.com/a-z/apportionment.htm. Also note that under LC 4663 and Escobedo, there can be apportionment to other factors. LC 5500.5 is a statute covering who pays for a cumulative trauma. See http://www.wcwebzine.com/a-z/cumulativetrauma.htm. To answer your question in a word, "no." The judge will rely on admissible and substantial evidence of apportionment. If the QME report meets that standard, it will be the basis for apportionment. See my articles and checklists on evidence (look at http://www.wcwebzine.com/a-zindex.htm).

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