The Case Brief this month deals with the poetry of apportionment faced with a presumption. Only an Oxfordian court could torture the promulgation of a statute to limit the causation of permanent disability. Your conscientious servants are here to help.
– Kenneth W. Scott, Esq., Associate Partner, Bakersfield Office
“Without poetry, we lose our way.” – Joy Harjo
THE WCAB CONTINUES TO “LOSE OUR WAY” ON APPORTIONMENT
Santiago v. CHP, 2022 Cal. Wrk. Comp. P.D. LEXIS 155 (March 17, 2022)
Applicant CHP Officer Santiago alleged 2 CTs: first 6/7/10 – 6/7/11 and subsequently 9/17/97 – 9/24/18. Applicant first brought the 6/7/10 – 6/7/11 CT case, which settled by Stipulations with Request for Award in 2012 at 43%, 18% attributed to heart trouble. Applicant subsequently alleged the second CT period, 9/17/97 – 9/24/18. This second CT rated at 55%, again due to heart trouble. Parties stipulated to overlap between the two CT injuries, both regarding heart trouble.
In light of this overlap, Defendant sought to subtract the prior 18% awarded from the latter 55%, thus decreasing the 55% to 37% pursuant to 4664(b) apportionment. Applicant alleged that they were entitled to the full 55% for the second CT, because LC 4663(e) – which covers public safety officers, including CHP Officers – contains an anti-attribution provision that precludes application of 4664(b).
The LC 4663(e) anti-attribution language precludes application of 4664(b) apportionment. Even when subsequent CT injuries overlap, as here, the 4663(e) anti-attribution provision prevents the defense from subtracting (apportioning) prior awards under 4664(b). The court views the prior award as one cause of the latter injury and concluded that this cause is non-apportionable.
The court leans heavily on the legislative intent behind 4663(e) (anti-attribution for public safety workers) to reach its conclusion. “Applying [the Legislature’s] rationale, the applicant’s current heart trouble would be precluded from being attributed to other potential causes, which in this case includes a prior [award].” As Sullivan on Comps describes it “[WCAB] noted that the legislative history of AB 1368 established a concern that apportionment would result in decreased PD for specified public employees.” (August Case Update)
The court also cited prior case-law, where it identified a “single unified approach” viz. dominance of specific statutes over general ones. In Bates v. County of San Mateo, 2019 Cal. Wrk. Comp P.D. LEXIS 72, a panel also found that the 4663(e) anti-attribution clause precluded apportionment. It applied this principle that where specific and general statutes conflict, the specific statute trumps (4663(e) being specific and 4664(b) being general).
In dicta in Santiago, the WCAB acknowledged that the applicant Officer’s two CT injuries happened while with the same employer (CHP). Query whether the case might have turned out differently if applicant’s first injury was not with the CHP, especially if CHP was left “holding the bag” for a prior non-CHP (or non-public safety officer) industrial injury that was the subject of a prior award (Stips or C&R). Principles disallowing “double recovery” might also apply, because in some sense the applicant received the 18% prior award twice. The solution in this case was to deduct the dollar amount paid as a credit against the current permanent disability level; however, would not such a position still be attribution? Why does SCIF always seem to make bad law for everyone else.
NOT THE LAST WORD?
Defendant filed a petition for writ of review July 1, 2022, which is pending before the 2nd District Court of Appeal.
Collin Dyer, Esq., Associate Attorney, Chico Office, September 2022.