Fraire v. California Department of Corrections and Rehabilitation/SCIF (2020)
(2020 Cal.Wrk.Comp. P.D. LEXIS­­)

Summary. The WCAB issued a split decision on the issue of apportionment under Labor Code § 4662(a) in the case of Fraire v. California Department of Corrections and Rehabilitation/SCIF (2020 Cal.Wrk.Comp. P.D. LEXIS­­), offering hope to defendants across California in the battle for apportionment.

In the decision, the split panel opined “….section 4662(a)’s conclusive presumption that certain specified disabilities are ‘total in character’ does not establish that such conclusively presumed 100% permanent disabilities entirely resulted from industrial causation.”

Facts. Applicant sustained three industrial injuries while employed as a Program Tech for the California Department of Corrections and Rehabilitation (CDCR). Applicant underwent an AME with Ophthalmologist, Dr. Keyes, who diagnosed applicant with legal blindness in both eyes. Per Dr. Keyes, the causation of the legal blindness was proportional to the underlying diabetes and hypertension conditions.

Internal Medicine AME Weissman found applicant’s cardiomyopathy was related entirely to her pre-existing diabetes mellitus, also noting the diabetes mellitus was significantly aggravated and accelerated by applicant’s inability to exercise and the psychological aftermath of the industrial injury. The internal conditions were apportioned 60% to industrial causation (split equally between two of the industrial injuries), with the remaining 40% to non-industrial causation. At deposition, the AME maintained the blindness was a derivative of applicant’s diabetes and cardiac condition.

WCJ Decision.

• 4662 (a) states that any of the following permanent disabilities shall be conclusively presumed to be total in character:

1. Loss of both eyes or the sight thereof.
2. Loss of both hands or the use thereof.
3. An injury resulting in a practically total paralysis.
4. An injury to the brain resulting in permanent mental incapacity.

Despite acknowledging that the medical evidence established only a portion of applicant’s permanent total disability for two of the injuries was industrially related, the WCJ applied the conclusive presumption under § 4662(a)(1) and issued two separate Awards of 100% permanent total disability.

The WCJ declined to apply apportionment between the dates of injury or to the non-industrial conditions.

WCAB Decision on Reconsideration. On Reconsideration, the WCAB acknowledged “the clear and unambiguous language of § 4662(a) establishes that the disability in question – loss of sight in both eyes – must be conclusively presumed to be ‘total in character’. That is, the ‘character’ of the overall permanent disability must be conclusively deemed to be ‘total’, i.e., 100%”, (emphasis in original). In a rare feat for defendants, the split panel opined § 4662(a)’s presumption enumerating specific disabilities as “total in character” “fails to establish that such conclusively presumed 100% permanent disabilities entirely resulted from industrial causation”. (emphasis added).

In enacting § 4662(a), the legislature was silent as to whether the conclusively presumed 100% overall PD is subject to apportionment.

The WCAB next looked to the black letter law and legislative intents in enacting sections 4663 and 4664.

• 4663 provides, in relevant part:

1. Apportionment of permanent disability shall be based on causation.
2. A physician who prepares a report addressing the issue of permanent disability due to a claimed industrial injury shall address in that report the issue of causation of the permanent disability.

• 4664 provides, in relevant part:

1. The employer shall only be liable for the percentage of permanent disability directly caused by the injury arising out of and occurring in the course of employment.

The WCAB considered that the plain language of § § 4663 and 4664 do not exempt permanent disability conclusively presumed to be total under § 4662(a). This is unlike Labor Code § 4664(c)(1), which expressly precludes conditions enumerated under § 4662(a).

It is well established courts cannot infer legislative intent. The WCAB is therefore required to construe the code sections in the context of the entire statutory scheme in order to promote the intended legislative objective. In its analysis, the panel looked to Escobedo (legislature intended to expand the permissible scope of apportionment in its enactment of § § 4663 and 4664) and Brodie (indicating the new approach to apportionment considers the current disability and parcels out its causative sources – non-industrial, prior industrial, current industrial – to determine the amount directly caused by the current industrial source).

When considering the applicability of § § 4663 and 4664, the WCAB acknowledged “there is no reasonable rationale for distinguishing between permanent disabilities that are conclusively presumed to be total in character under § 4662(a) and those that are factually determined to have caused 100% overall PD under § 4662(b)”.

The WCAB concluded that, “section 4662(a)’s language that certain specified permanent disabilities, shall be conclusively presumed to be total in character (emphasis in original) simply signifies that ‘one of the attributes,’ but not the sole attribute, of permanent disabilities under § 4662(a) are that they are total, i.e., 100%. However, the fact that these specified permanent disabilities ‘shall’ be conclusively presumed to be total in character (emphasis in original) does not mean that these disabilities cannot also have other characteristics such as being caused in part by non-industrial factors.”

The WCAB ordered the case remanded to the WCJ to reconsider the issues of permanent disability and apportionment “in light of the correct legal principal that permanent disabilities that are conclusively presumed to be total under § 4662(a) are subject to apportionment to causation under § § 4663 and 4664.”

The dissenting opinion held the position that § 4662(a)’s “declaration that the permanent disabilities it enumerates ‘shall be conclusively presumed to be total in character’ reflects a substantive policy decision by the legislature that these disabilities cannot be apportioned.”

This case is not controlling, and it is contrary to the finding in Hirschberger v. Stockwell Harris Woolverton and Muehl (2018 Ca;.Wrk.Comp. P.D. LEXIS 482), finding disabilities that satisfy the criteria of § 4662(a) are not subject to non-industrial apportionment. However, it may be indicative of potentially favorable precedent in the future.