Apportionment Issues in regard to Multiple Injuries

Slodi V. San Diego Unified School District (BPD) (2014 Cal. Wrk Comp. P.D. LEXIS 180:

The WCJ found the applicant sustained a lower back injury resulting in 3% permanent disability after apportionment to prior injury.

The WCAB granted reconsideration and returned the matter to the WCJ for further development of the record with regard to apportionment pursuant to LC § 4663 and LC §4664.

The WCAB found that the apportionment opinion of applicant’s primary treating physician did not constitute substantial evidence on the issue of apportionment as the physician opined that applicant’s permanent disability should not be apportioned to his prior industrial injury. This is because the injuries involved different spinal segments.

The WCAB stated that pursuant to LC § 4664 (c) (1) (D) the spine is considered a single region of the body for purposes of determining whether accumulation of all awards exceeds 100% permanent disability.

The Board further found that an injury of one part of the body may overlap a factor of disability from a different part of the body resulting in a basis for apportionment.

The board also indicated that after there is a finding of no apportionment pursuant to LC § 4664 the treating physician failed to consider apportionment pursuant to LC § 4663.

The WCJ incorrectly apportioned applicants permanent disability prior to injury, absent substantial evidence, by rating treating physician’s report at 49% and subtracting 46% for prior stipulated award, without consideration of methods used to rate prior and current disabilities.

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