ADJ18866949 · June 10, 2024

The Appeals Board found that apportionment under Labor Code Section 4664(b) was precluded by the anti-attribution clause of Labor Code Section 4663(e) for the presumptively compensable lumbar spine injury, following the rationale in Bates and Santiago.

From the decision · page 5Defendant, City of Los Angeles has filed this timely and verified petition for reconsideration challenging the November 8, 2023, Arbitrator's decision wherein I found, that Applicant, a police officer was entitled to an unapportioned Award of 33% permanent disability to the lumber spine and left shoulder. Defendant contends by the decision or award this Arbitrator acted without or in excess of her powers; that the evidence does not justify the findings of fact and the findings of fact do not support the order, decision or award. Specifically, Defendant contends it was error to find that apportionment under Labor Code Section 4664(b) was precluded because it was inconsistent with the anti-attribution clause of Labor Code Section 4663(e). Applicant had a prior Award of 17% permanent disability to the low back which Defendant asserts requires apportionment under Labor Code 4664(b). An answer to the petition has been received from Applicant.

Applicant had a prior award of 17% permanent disability to the lumbar spine, a presumptively compensable injury.

Favours neutral

This prior award established the existence of a prior level of permanent disability relevant to apportionment.

From the decision · page 9The facts in this case are almost identical to those in Santiago. Here Applicant had a prior award of 17% disability to the lumbar spine, a presumptively compensable injury. The medical reporting established both Dr. Brazina, the current AME and Dr. Heskiaoff the prior AME assessed impairment of 8 % WPI to the lumbar spine based on AMA Guides, Table 15-3, p. 384 (DRE Category II). While the disability is identical and thus a complete overlap of the prior level of disability and the existence of the prior award was established by Defendant, as required under Kopping v. WCAB) (2006) 142 Cal. App. 4th 1099, 71 Cal. Comp. Cases 1229), here as in Santiago both injuries are presumptive and subject to Section 4663(e). Therefore, they are specifically excluded under the anti-attribution clause.

The medical reports of Dr. Brazina and Dr. Heskiaoff both assessed 8% WPI to the lumbar spine, showing complete overlap of prior and current disability.

Favours neutral

This overlap was relevant to the apportionment issue and supported the finding that apportionment was precluded by Labor Code 4663(e).

From the decision · page 9The facts in this case are almost identical to those in Santiago. Here Applicant had a prior award of 17% disability to the lumbar spine, a presumptively compensable injury. The medical reporting established both Dr. Brazina, the current AME and Dr. Heskiaoff the prior AME assessed impairment of 8 % WPI to the lumbar spine based on AMA Guides, Table 15-3, p. 384 (DRE Category II). While the disability is identical and thus a complete overlap of the prior level of disability and the existence of the prior award was established by Defendant, as required under Kopping v. WCAB) (2006) 142 Cal. App. 4th 1099, 71 Cal. Comp. Cases 1229), here as in Santiago both injuries are presumptive and subject to Section 4663(e). Therefore, they are specifically excluded under the anti-attribution clause.

The anti-attribution clause of Labor Code Section 4663(e) precludes apportionment for presumptively compensable injuries, overriding the general apportionment rule in Section 4664(b).

Favours Applicant prevailed

This legal principle was the basis for denying apportionment and granting an unapportioned award.

From the decision · page 8The WCAB rejected Defendant's argument that the anti-attribution clause only applied to Labor Code 4663(a)-(c) apportionment and not to Labor Code 4664(a) apportionment. In its analysis the WCAB found that while there was overlap of disability between the Applicant's current and prior disabilities, and that would ordinarily allow for subtraction of the prior award, the clear language of Labor Code Section 4663(e)prohibited application of apportionment where there are presumptive compensable injuries. In deciding the issue the WCAB first found that the apportionment to causation provision of Labor Code 4664(a) is a general statute whereas Labor Code Section 4663(e) is a specific institute precluding apportionment to causation between two (2) or more industrial injuries which are presumed compensable.

Assessed 8% WPI to the lumbar spine based on AMA Guides, Table 15-3, p. 384 (DRE Category II).

The medical reporting established impairment assessments by Dr. Brazina relevant to the apportionment issue.

From the decision · page 9The facts in this case are almost identical to those in Santiago. Here Applicant had a prior award of 17% disability to the lumbar spine, a presumptively compensable injury. The medical reporting established both Dr. Brazina, the current AME and Dr. Heskiaoff the prior AME assessed impairment of 8 % WPI to the lumbar spine based on AMA Guides, Table 15-3, p. 384 (DRE Category II). While the disability is identical and thus a complete overlap of the prior level of disability and the existence of the prior award was established by Defendant, as required under Kopping v. WCAB) (2006) 142 Cal. App. 4th 1099, 71 Cal. Comp. Cases 1229), here as in Santiago both injuries are presumptive and subject to Section 4663(e). Therefore, they are specifically excluded under the anti-attribution clause.

Assessed 8% WPI to the lumbar spine based on AMA Guides, Table 15-3, p. 384 (DRE Category II) in prior award.

The medical reporting established impairment assessments by Dr. Heskiaoff relevant to the apportionment issue.

From the decision · page 9The facts in this case are almost identical to those in Santiago. Here Applicant had a prior award of 17% disability to the lumbar spine, a presumptively compensable injury. The medical reporting established both Dr. Brazina, the current AME and Dr. Heskiaoff the prior AME assessed impairment of 8 % WPI to the lumbar spine based on AMA Guides, Table 15-3, p. 384 (DRE Category II). While the disability is identical and thus a complete overlap of the prior level of disability and the existence of the prior award was established by Defendant, as required under Kopping v. WCAB) (2006) 142 Cal. App. 4th 1099, 71 Cal. Comp. Cases 1229), here as in Santiago both injuries are presumptive and subject to Section 4663(e). Therefore, they are specifically excluded under the anti-attribution clause.

Labor Code section 5909

Labor Code section 5909 provides that a petition for reconsideration is deemed denied unless the Appeals Board acts on the petition within 60 days of filing.

The Appeals Board's failure to act on the petition within 60 days was tolled due to no fault of petitioner, preserving due process rights.

From the decision · page 1Labor Code1 section 5909 provides that a petition for reconsideration is deemed denied unless the Appeals Board acts on the petition within 60 days of filing. (Lab. Code, § 5909.) However, "it is a fundamental principle of due process that a party may not be deprived of a substantial right without notice...." (Shipley v. Workers' Comp. Appeals Bd. (1992) 7 Cal.App.4th 1104, 1108 [57 Cal.Comp.Cases 493]; see Rea v. Workers' Comp. Appeals Bd. (2005) 127 Cal.App.4th 625, 635 fn. 22 [70 Cal.Comp.Cases 312] ["irregularity which deprives reconsideration under the statutory scheme denies due process"].) In Shipley, applicant sought a writ of review of a decision of the Appeals Board denying his petition for reconsideration by operation of law (Lab. Code, § 5909). The Court there granted a writ of review, stating that while the "language [section 5909] appears mandatory and jurisdictional, the time periods must be based on a presumption that a claimant's file will be available to the board; any other result deprives a

Labor Code Section 4664(b)

Labor Code Section 4664(b) mandates apportionment to prior permanent disability awards unless precluded by specific provisions.

The Board found apportionment under 4664(b) was precluded by the anti-attribution clause of 4663(e) for presumptive injuries.

From the decision · page 7Defendant is correct that under Labor Code Section 4664(b) apportionment to a prior Award is conclusively presumed to exist and establish a prior level of permanent disability. The Section specifically states,

Labor Code Section 4663(e)

Labor Code Section 4663(e) precludes apportionment for presumptively compensable injuries under Labor Code 3212 et seq.

The anti-attribution clause of 4663(e) precludes apportionment in cases involving presumptive injuries, overriding 4664(b).

From the decision · page 8The WCAB rejected Defendant's argument that the anti-attribution clause only applied to Labor Code 4663(a)-(c) apportionment and not to Labor Code 4664(a) apportionment. In its analysis the WCAB found that while there was overlap of disability between the Applicant's current and prior disabilities, and that would ordinarily allow for subtraction of the prior award, the clear language of Labor Code Section 4663(e)prohibited application of apportionment where there are presumptive compensable injuries. In deciding the issue the WCAB first found that the apportionment to causation provision of Labor Code 4664(a) is a general statute whereas Labor Code Section 4663(e) is a specific institute precluding apportionment to causation between two (2) or more industrial injuries which are presumed compensable.

Defendant violated 8 Cal. Code Reg. 10945 by attaching documents not part of the adjudication file to the petition for reconsideration.

From the decision · page 6Here Defendant violated both subsection (b) and (c) of Regulation 10945. Attached to the petition are copies of the AME reports of Dr. Brazina and Dr Heskiaoff, both of which were received in evidence and are part of the record. They are designated as Joint Exhibits X and Y and Defense Exhibit B, respectively. Additionally, Defendant, without explanation or a showing of good cause, included new documents in the form of the interrogatory sent to Dr. Brazina dated December 22, 2022 (designated as Exhibit A in the petition) and a legislative history report of Labor Code 4663(e) from LRI History LLC. These two (2) documents were not received into evidence and are not part of the Arbitration file. As the petition was filed electronically the option of discarding or detaching them as allowed under Reg. 10945(c)(1) was not possible. Accordingly, it is requested that the petition be dismissed on procedural grounds.