What the panel ordered
The December 28, 2022 Findings and Order was affirmed, holding that a prior award of permanent disability does not automatically establish labor disabling status if the applicant was rehabilitated and no longer labor disabled at the time of subsequent injury.p. 3
Petition for Reconsideration filed by applicant was granted for further study and clarification of legal and factual issues regarding prior permanent partial disability and labor disabling status, leading to this decision after reconsideration.
This docket was decided more than once. Shown here is the latest released decision; we also hold May 24, 2021.
What was disputed, and how it came out
Each issue the panel decided, with the reasoning it gave. An outcome is what this panel did on this record — not a rule, and not a prediction.
The Board agreed with the WCJ that a prior award of permanent disability does not automatically establish labor disabling status if the applicant was rehabilitated and no longer labor disabled at the time of the subsequent injury, supported by medical evidence and lack of objective evidence of impairment.
From the decision · page 2Based on the Report, and for the reasons discussed below, we affirm the December 28, 2022 Findings and Order. The Supreme Court in Ferguson held that the “previous disability or impairment” contemplated by section 4751 must be actually labor disabling. (Ferguson v. Industrial Acci. Com. (1958) 50 Cal.2d 469, 477; internal quotations omitted.) The court in Ferguson and Moyer v. Workmen’s Comp. Appeals (1972) 24 Cal.App.3d 650, 658 define labor disabling as impairment of earning capacity or diminished ability to compete in the open labor market. The issue here is whether a prior award of permanent disability automatically establishes that the disability is labor disabling. We agree with the WCJ that it does not.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Medical evidence demonstrated applicant was rehabilitated from his December 23, 1989 injury and was no longer labor disabled at the time of subsequent injury.
Favours Defendant prevailed
This fact supported the Board's conclusion that the prior permanent disability award did not establish labor disabling status.
From the decision · page 2The purpose of the statute is to encourage the employment of the disabled as part of a “complete system of workmen’s compensation contemplated by our Constitution.” (Patterson (1952) 39 Cal.2d 83 [17 Cal.Comp.Cases 142]; Ferguson v. Indus. Acc. Comm. (1958) 50 Cal.2d 469, 475.) The purpose is to encouraged disabled persons to be hired and employers to hire them. (Ferguson, supra, at p. 474-475.) This purpose is not served with an employee who although was awarded a prior permanent disability is no longer labor disabled at the time of the subsequent injury. The medical evidence demonstrates that applicant was rehabilitated from his December 23, 1989 injury involving a ruptured biceps tendon. (See Report, p. 10.) Applicant, however, testified at trial that after his 1989 injury, he experienced pain from the elbow to the thumb and had a range of motion problem and weakness that never went away. (Minutes of Hearing/Summary of Evidence dated May 18, 2018, p. 9:21-25.) Applicant testified that he chose to stay working at a slower fire house because he never fully recovered from the ruptured bicep injury. (Id. at p. 6:3-6.) He also testified that the residuals of this injury held up his
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Ferguson v. Industrial Acci. Com. (1958) 50 Cal.2d 469, 477
The "previous disability or impairment" contemplated by Labor Code section 4751 must be actually labor disabling, meaning impairment of earning capacity or diminished ability to compete in the open labor market.
The Board applied this standard to determine that a prior award of permanent disability does not automatically establish labor disabling status if the applicant was rehabilitated.
From the decision · page 2Based on the Report, and for the reasons discussed below, we affirm the December 28, 2022 Findings and Order. The Supreme Court in Ferguson held that the “previous disability or impairment” contemplated by section 4751 must be actually labor disabling. (Ferguson v. Industrial Acci. Com. (1958) 50 Cal.2d 469, 477; internal quotations omitted.) The court in Ferguson and Moyer v. Workmen’s Comp. Appeals (1972) 24 Cal.App.3d 650, 658 define labor disabling as impairment of earning capacity or diminished ability to compete in the open labor market. The issue here is whether a prior award of permanent disability automatically establishes that the disability is labor disabling. We agree with the WCJ that it does not.
What proof carried it
The evidence the panel weighed, by kind.
Applicant's unrebutted testimony that he stayed working at a slower fire house for over 20 years due to injury, indicating impaired earning capacity and diminished ability to compete in the labor market.
From the decision · page 2The purpose of the statute is to encourage the employment of the disabled as part of a “complete system of workmen’s compensation contemplated by our Constitution.” (Patterson (1952) 39 Cal.2d 83 [17 Cal.Comp.Cases 142]; Ferguson v. Indus. Acc. Comm. (1958) 50 Cal.2d 469, 475.) The purpose is to encouraged disabled persons to be hired and employers to hire them. (Ferguson, supra, at p. 474-475.) This purpose is not served with an employee who although was awarded a prior permanent disability is no longer labor disabled at the time of the subsequent injury. The medical evidence demonstrates that applicant was rehabilitated from his December 23, 1989 injury involving a ruptured biceps tendon. (See Report, p. 10.) Applicant, however, testified at trial that after his 1989 injury, he experienced pain from the elbow to the thumb and had a range of motion problem and weakness that never went away. (Minutes of Hearing/Summary of Evidence dated May 18, 2018, p. 9:21-25.) Applicant testified that he chose to stay working at a slower fire house because he never fully recovered from the ruptured bicep injury. (Id. at p. 6:3-6.) He also testified that the residuals of this injury held up his
Medical evidence indicating applicant made an excellent recovery from the 1989 injury and was no longer labor disabled at the time of subsequent injury.
From the decision · page 2The purpose of the statute is to encourage the employment of the disabled as part of a “complete system of workmen’s compensation contemplated by our Constitution.” (Patterson (1952) 39 Cal.2d 83 [17 Cal.Comp.Cases 142]; Ferguson v. Indus. Acc. Comm. (1958) 50 Cal.2d 469, 475.) The purpose is to encouraged disabled persons to be hired and employers to hire them. (Ferguson, supra, at p. 474-475.) This purpose is not served with an employee who although was awarded a prior permanent disability is no longer labor disabled at the time of the subsequent injury. The medical evidence demonstrates that applicant was rehabilitated from his December 23, 1989 injury involving a ruptured biceps tendon. (See Report, p. 10.) Applicant, however, testified at trial that after his 1989 injury, he experienced pain from the elbow to the thumb and had a range of motion problem and weakness that never went away. (Minutes of Hearing/Summary of Evidence dated May 18, 2018, p. 9:21-25.) Applicant testified that he chose to stay working at a slower fire house because he never fully recovered from the ruptured bicep injury. (Id. at p. 6:3-6.) He also testified that the residuals of this injury held up his
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About this page
- A published decision of the California Workers' Compensation Appeals Board, taken apart by what it turned on. The Board publishes the decision itself; this page adds the extraction and quotes the passage behind every claim.
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