09 Oct 2018

California: Establishing Apportionment Under Labor Code Section 4664(b)

Labor Code Sections 4663 and 4664 were both passed as part of the massive workers’ compensation reforms that occurred under then Governor Schwarzenegger in 2004. Since these laws were passed, the vast majority of apportionment issues in California workers’ compensation focused on Labor Code Section 4663’s apportionment based on “causation” and less so on Labor Code Section 4664(b)’s conclusively presumed previously awarded permanent disability (PD).

The reason that we don’t see more Labor Code Section 4664(b) apportionment issues is that there may be fewer cases that involve previously awarded PD, but also because it is not always easy to “prove-up” Labor Code Section 4664(b) apportionment. The seminal case on Labor Code Section 4664(b) apportionment is Kopping v. California Highway Patrol (2006) 142 Cal.App.4th 1099, 71 Cal. Comp. Cases 1229. In Kopping, the Third District Court of Appeal found that the inherently contradictory language found in Labor Code Section 4664(b) meant that while there may be a conclusive presumption, before that presumption can take effect, the defendant has the burden of proving that the previously awarded PD and current PD overlap.

Since Kopping, there has been a great deal of confusion as to what disabilities overlap with what disabilities. The recent WCAB panel decision in Hom v. City and County of San Francisco ADJ10658104 is an excellent illustration of what both parties should consider when approaching a case that may involve Labor Code Section 4664(b) apportionment. Most notable is the decision of the Workers’ Compensation Administrative Law Judge (WCALJ) who did an excellent job laying out the post-Kopping cases and addressing the specific question posed to her. The question was: Can there be overlap where the prior PD award was based on the AMA Guides DRE rating method and the current PD is being rated on the ROM method for rating the Whole Person Impairment (WPI)?

As many of the cases before Hom had concluded, the WCALJ in Hom concluded that the prior PD and the current PD have to be rated using the same rating “metrics”. In other words, if defendant is attempting to compare apples to oranges, defendant is not likely going to prevail in establishing overlap between the prior PD and the present PD. As the DRE and ROM are different and distinct rating metrics, there could be no Labor Code Section 4664(b) apportionment in Hom.

In addition to the thorough and thoughtful discussion by the WCALJ in Hom, the commissioners, in adopting the WCALJ’s decision, made an additional important point that should be kept in mind by defendants trying to establish apportionment: Just because there may be Section 4664(b) apportionment, do not forget to ask the medical-legal evaluator about Labor Code Section 4663 apportionment as well. In Hom, the Agreed Medical Evaluator (AME) did not address Labor Code Section 4663 apportionment; therefore, once the Labor Code Section 4664(b) apportionment was rejected, defendant was not able to sustain its burden of proof of proving any type of apportionment.

NOTE: THE PDF FOR THE HOM DECISION IS BELOW.

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