In Spencer v. Oakland Unified School District, ADJ13057141, May 16, 2024, Order Denying Reconsideration, the applicant, a school principal, suffered a psychiatric injury when a former custodian attacked and pistol-whipped her in her office. For the 2008 date of injury, Dr. Lieberman, the AME for that case, diagnosed the applicant with Post-Traumatic Stress Disorder (“PTSD.”) The Judge awarded the applicant 27 percent permanent disability. The applicant continued working for the employer.
Thereafter, in 2019, a mother of both current and former students confronted the applicant regarding her treatment of her children. The applicant called the police who escorted the angry mother from the school. Right after this incident, the applicant left the school, sought treatment, and was taken off work. For this incident, a QME diagnosed the applicant again with PTSD, assigning a GAF score of 65. The QME opined that the 2019 incident aggravated her previous PTSD condition.
In October 2020, the trial court issued a Findings & Award holding that the applicant sustained an industrial injury, and the apportionment subsumed the entirety of the permanent disability. Labor Code Section 4664(b) states that if an 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. For the presumption to apply, the employer must prove the existence of the prior permanent disability award, then prove the extent of the overlap between the prior disability and the current disability.
The applicant argued that her 2019 injury had caused permanent disability that was independent from her prior injury in 2008. To show this, the applicant argued that she had completely recovered from her PTSD, citing a report from a 2016 reexamination where Dr. Lieberman states that the applicant no longer showed signs of PTSD. Ultimately, the trial court found that the defendant had met the Section 4664 burden of proof, and that the applicant was not entitled to further permanent disability indemnity related to the 2019 incident.
The applicant filed a petition for reconsideration, again arguing that the defendant had failed to prove apportionment and emphasizing the different facts of the two injuries. The WCJ rejected this argument in its entirety. The WCJ pointed to both med-legal reports from the 2008 injury and 2019 injury and highlighted her disability was rated the same way in both cases, using the GAF, and that the diminished future earning capacity modifier was the same for both cases. The WCJ also pointed out that the injury was to the same body part with the same diagnosis. The nail in the coffin for this decision was the fact that the 2019 QME report repeatedly mentioned the 2008 injury and specifically stated that the 2019 injury reactivated the 2008 injury, rebutting the applicant’s argument that she had recovered from her PTSD in 2008.
This decision confirms the effect of Labor Code Section 4664(b) and the power of apportionment in multiple injury claims. The decision details the need for documentation of prior injuries with permanent disability awards. The award AND the supporting med legal reports are necessary to prove the prior level of PD and overlap with the new injury. For older injuries, the award is often available, but the related med- legal reports are often difficult to retrieve.
Apportionment victories for the defense are few and far between but this case confirms a successful outcome when defendants meet their burden of proof.
By Austen M. Gabbard, Esq., Associate Attorney, Van Nuys Office July 2024
