Pattiz v. State Compensation Insurance Fund (2015) 43 CWCR 201
Jan 01, 2015OUTCOME: The WCAB overturned the WCJ’s finding of 100% without apportionment and remanded the matter to the trial level.
The applicant sustained two industrial injuries. The first was a cumulative trauma injury to his left shoulder, cervical spine and lumbar spine. The second injury was a slip and fall which resulted in ... a loss of consciousness in a claim of injury to his head, lumbar spine, cervical spine, neurological system and left shoulder. The parties obtained to Agree Medical Evaluators. The first AME, in orthopedics, indicated the applicant had a prior left shoulder injury. The physician indicated the applicant never recovered from those injuries. The physician apportioned 90% of the left shoulder permanent disability to nonindustrial pre-existing factors and 10% to the continuous trauma. For the lumbar spine the applicant had a prior lumbar surgery. The physician apportioned 50% of the permanent disability to the specific injury 40% to nonindustrial factors and 10% to the continuous trauma. For the cervical spine he apportioned 80% to the fall and 20% to the continuous trauma. As to permanent disability the physician for the lumbar spine gave a 20% WPI, for the cervical spine he gave a 5% WPI and for the left shoulder an 11% WPI. The orthopedic AME later a changed his opinion on apportionment to the left shoulder and apportioned 80% of the disability to pre-existing and 20% to the cumulative trauma. The AME in neuropsychology apportioned all the disability to the specific injury. He found 28% WPI related to the traumatic brain injury. Applicant and defendant both obtained vocational experts. The applicant’s vocational expert concluded that applicant could not perform competitive work and that was thus permanently totally disabled. The expert did not address apportionment. The defense vocational expert identifying multiple positions applicant could perform and thus opined the applicant had 49% diminished future earning capacity. The matter proceeded to trial on the issues of permanent disability, apportionment and future medical treatment in both cases. The WCJ issued a joint findings of fact and award in which he found that the specific injury caused permanent total disability and that the continuous trauma injury caused periods of temporary disability. He did not apportion between the two dates of injury or to nonindustrial causes. Defendants filed a petition for reconsideration. The WCAB granted reconsideration and remanded the case to the trial level for a new decision on permanent disability and apportionment. The panel concluded that the trial judge’s decision not to apportion between the industrial and nonindustrial causes in light of Labor Code § 4662, which applies when the totality of circumstances support a finding of 100% permanent total disability was incorrect. The Board stated the WCJ did not address evidence of apportionment because he concluded there is no legal basis for apportionment when total permanent disability is determined in accordance with fax pursuant to section 4662 (b). The WCAB observed there are four situations, under Labor Code § 4662 (a) in which permanent disability is conclusively presumed total. Labor Code § 4662 (b) provides that in all other cases, permanent total disability shall be determined in accordance with the fact. Where the four presumed total permanent disability situations are not at play, the permanent disability is not conclusively presumed to be total. Permanent disability is subject to apportionment based on its causation, including in cases where the injured worker’s overall permanent disability is 100%.
