Is Labor Code § 4662(b) Subject to Apportionment?
There have recently been numerous panel decisions analyzing the meaning of Labor Code § 4662(b), as applicant attorneys’ continue to argue that Labor Code § 4662(b) precludes apportionment.
Focusing on one case in particular, in Angel Valenzuela v. State of California-Department of Corrections, 2013 Cal. Wrk. Comp. P.D. LEXIS 401, the WCAB specifically addressed this very issue – whether or not Labor Code § 4662(b) precludes apportionment of a permanent disability award.
Labor Code § 4662 states:
(a) 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.
(b) In all other cases, permanent total disability shall be determined in accordance with the fact. (Emphasis added.)
In Angel Valenzuela v. State of California-Department of Corrections, supra, 2013 Cal. Wrk. Comp. P.D. LEXIS 401, the WCJ held that applicant was permanently totally disabled under Labor Code § 4662 and that apportionment as described by the Court of Appeal in Benson v. WCAB (“Benson”) (2009) 170 Cal.App.4th 1535 is not applicable. (Id. at 4.)
In response, defendants filed a Petition for Reconsideration arguing that a finding of total permanent disability “pursuant to section 4662 is subject to apportionment between industrial injuries in accordance with the holding in Benson . . . ”, and of course, applicant’s attorney argued to the contrary. (Id. at 5, 9.)
The WCAB granted reconsideration. (Id. at 6-7.) Upon review and analyzing the language of the statute, the WCAB held that a finding of permanent total disability pursuant to Labor Code §4662(b) “in accordance with the fact” does not preclude apportionment of permanent disability between industrial and non-industrial injuries as described in Benson. (Id. at 7.) Of course, the WCAB did note that “apportionment must be supported by substantial evidence in light of the entire record,” in which is a well known standard in workers’ compensation. (Ibid.)
In Valenzuela, the WCAB indicated that the medical record was incomplete as to whether apportionment was supported by substantial evidence; thus, the WCAB remanded the case to the trial level for the WCJ to address this issue of apportionment. (Id. at 15-16.)
Therefore, the bottom line is that defendants may use Valenzuela to argue that apportionment is in fact applicable to Labor Code §4662(b), with the use of substantial evidence supporting such apportionment.
Please note that the Valenzuela decision is a WCAB panel decision, which is citeable authority; however, WCAB panel decisions are not binding precedent, as are en banc decisions, on all other Appeals Board panels and workers’ compensation judges.