ADJ10534368 — California WCAB decision

What the panel ordered

Petition for Reconsideration granted; final decision deferred pending further review of merits and entire record.

Defendant seeks reconsideration of the Findings of Fact, Award, and Order issued by the WCJ on July 17, 2024, which found applicant sustained industrial injury causing permanent total disability of 100%. The WCJ's decision did not address third-party credit. The WCJ recommended granting defendant's petition for reconsideration. The Appeals Board granted the petition for reconsideration and deferred final decision pending further review.

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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.

ApportionmentDefendant prevailedcervical spine · elbows · wrists · left knee · ankles · hypertensive heart disease · arrhythmia · psyche · left arm

From the decision · page 1Defendant seeks reconsideration of the Findings of Fact, Award, and Order issued by the workers' compensation administrative law judge (WCJ) in this matter on July 17, 2024. In that decision, the WCJ found in pertinent part that applicant sustained industrial injury arising out of and in the course of his employment to his cervical spine, elbows, wrists, left knee, ankles hypertensive heart disease, arrhythmia, psyche, and left arm while employed by the defendant, causing permanent total disability of 100%, less reasonable attorney's fees of 18%.

The rules the panel named

Authorities as the decision cited them, with how this panel applied each one.

Associated Construction & Engineering Co. v. Workers' Comp. Appeals Bd. (Cole) (1978) 22 Cal.3d 829

When an employer seeks a credit based on a third-party settlement, the Board must determine the employer's degree of fault and the total damages to which the employee is entitled, and deny credit until the employer's contribution corresponds to its proportional share of fault.

The Board must determine employer fault and total damages to allocate credit proportionally.

From the decision · page 5When an employer seeks a credit based on a third-party settlement, the Board must determine the appropriate contribution of the employer since the employee's recovery does not represent a judicial determination of tort damages. Specifically, the Board must determine (1) the degree of fault of the employer, and (2) the total damages to which the employee is entitled. The Board must then deny the employer credit until the ratio of his contribution to the employee's damages corresponds to his proportional share of fault. (Associated Construction & Engineering Co. v. Workers' Comp. Appeals Bd. (Cole) (1978) 22 Cal.3d 829, 843 [43 Cal.Comp.Cases 1333].)

Martinez v. Associated Engineering & Construction Co. (1979) 44 Cal.Comp.Cases 1012

The employer has the burden of establishing its right to claim a credit, which may be done by introducing settlement documents, shifting the burden to the applicant to show employer negligence.

Defendant introduced settlement documents to establish right to credit; burden shifted to applicant to show negligence.

From the decision · page 5Defendant has the burden of establishing its right to claim a credit. (Martinez v. Associated Engineering & Construction Co. (1979) 44 Cal.Comp.Cases 1012, 1021 (Appeals Board en banc).) This may be done by introducing settlement documents as was done in this case. (Exh. J) This shifted the burden to applicant to show employer negligence. (Martinez, supra, at pp. 1021§ 1022.)

ADJ10534368 · October 14, 2024

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