ADJ1556152 · February 18, 2025

The Appeals Board granted reconsideration to further review whether apportionment was properly applied and deferred final decision.

From the decision · page 1Applicant and defendant California Insurance Guarantee Association by its servicing facility Intercare for Casualty Reciprocal Exchange, in liquidation (CIGA) both seek reconsideration of the November 14, 2024 Findings and Award (F&A), wherein the workers' compensation administrative law judge (WCJ) found that in ADJ1556152, in relevant part, applicant is entitled to 90 percent permanent disability after the application of apportionment pursuant to Labor Code1 sections 4663 and 4664.

Applicant has a totally diminished future earning capacity and cannot work in the open labor market.

Favours Applicant prevailed

This fact supports applicant's claim for 100 percent permanent total disability.

From the decision · page 4in interest, as administered by Enstar (Clarendon) which was resolved by way of a Stipulated Award of 52%; that applicant is in need of further medical treatment with liability to both Clarendon and CIGA for the body parts of back and right leg, and liability to CIGA for future medical treatment for all other industrially injured body parts; that applicant has a totally diminished future earning capacity and cannot work in the open labor market, entitling the applicant to permanent total disability of 100 percent in ADJ1556152; and that CIGA will have a credit through the "subtraction method" for the prior award of 52 percent, including for the attorney's fees. In the Findings and Order issued in

The apportionment identified by the orthopedic AME in a prior cumulative trauma claim was found not legally sustainable for reducing applicant's award.

Favours Applicant prevailed

Supports denial of defendant's contention to reduce the award by prior apportionment.

From the decision · page 6The WCJ's Report recommends we deny applicant's Petition because the lost wage analysis advanced in applicant's Petition is incompatible with the analysis required under section 4664. The WCJ also observes that the disability identified in the reporting of internal medicine physician Dr. Gillis standing alone does not yield 100 percent disability, and that applicant's vocational expert relies on a combination of the disability identified in the orthopedic and internal medicine reporting. The WCJ's Report further recommends we deny defendant's Petition because the apportionment identified by the medical-legal evaluator in a claim that was previously dismissed without a finding of injury is not a legally sustainable basis for reducing applicant's award.

Provided disability ratings combined with orthopedic AME to determine residual permanent disability.

The WCJ relied on Dr. Gillis's combined disability ratings with the orthopedic AME to calculate the 90 percent permanent disability rating.

From the decision · page 5On November 14, 2024, the WCJ issued the F&A, determining that in ADJ1556152, applicant was entitled to 90 percent permanent disability. (F&A, Finding of Fact No. 1.) The WCJ also calculated and awarded corresponding attorney's fees. The WCJ's Opinion on Decision discussed the caselaw relevant to the issue of apportionment under sections 4663 and 4664 and determined that the residual permanent disability attributable to the cumulative injury in ADJ1556152 was 90 percent, after combining the scheduled permanent disability percentages identified by internist Dr. Gillis with the residual disability identified by orthopedic AME Dr.

Labor Code sections 4663 and 4664

Labor Code sections 4663 and 4664 govern apportionment of permanent disability.

The Board reviewed whether the defendant met its burden to establish apportionment under these sections.

From the decision · page 7Section 4664(a) states that, "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." Section 4664(b) states that, "If the applicant has received a prior award of permanent disability, it shall be conclusively presumed that the prior permanent disability exists at the time of any subsequent industrial injury." However, in Kopping v. Workers' Comp. Appeals Bd. (2006) 142 Cal.App.4th 1099 [71 Cal.Comp.Cases 1229], the Court of Appeal held that in order to apportion permanent disability pursuant to Labor Code section 4664, a defendant must show that (1) there was a prior award of permanent disability, and that (2) there is overlap between the prior disability and the subsequent disability. In the instant matter, we must determine whether defendant has met its burden of establishing apportionment pursuant to sections 4663 and 4664, and pursuant to the analysis described in Kopping, supra.

The apportionment identified by the orthopedic AME in a prior cumulative trauma claim was disputed and found not legally sustainable for reducing the award.

From the decision · page 6The WCJ's Report recommends we deny applicant's Petition because the lost wage analysis advanced in applicant's Petition is incompatible with the analysis required under section 4664. The WCJ also observes that the disability identified in the reporting of internal medicine physician Dr. Gillis standing alone does not yield 100 percent disability, and that applicant's vocational expert relies on a combination of the disability identified in the orthopedic and internal medicine reporting. The WCJ's Report further recommends we deny defendant's Petition because the apportionment identified by the medical-legal evaluator in a claim that was previously dismissed without a finding of injury is not a legally sustainable basis for reducing applicant's award.