Court Finds WCAB Failed to Apportion Disability

Publish Date:Sep 09, 2013
Summary:
In an opinion filed on August 23, 2013, the California Court of Appeal (Second Appellate District) held in Southern California Edison v. WCAB that the Workers’ Compensation Appeals Board (WCAB) should not have adopted the decision of a workers’ compensation judge (WCJ) because the judge’s decision failed to apportion the disability among causes of the disability.

In an opinion filed on August 23, 2013, the California Court of Appeal (Second Appellate District) held in Southern California Edison v. WCAB that the Workers’ Compensation Appeals Board (WCAB) should not have adopted the decision of a workers’ compensation judge (WCJ) because the judge’s decision failed to apportion the disability among causes of the disability.  The court’s opinion has not been certified for publication.  As a result, the opinion may not be cited as precedent.

Elsie Martinez was employed by Southern California Edison.  In 2001, Martinez filed a workers’ compensation claim based on a specific injury to her neck.  Three years later, she filed a second claim, contending she suffered cumulative trauma (CT) during her employment with Edison.

There was a dispute whether Martinez suffered from fibromyalgia, a disorder causing widespread pain throughout the body.  The WCJ appointed Dr. Seymour Levine, a rheumatologist, as an independent medical evaluator.  Martinez did not inform Dr. Levine of her 2001 injury.  Dr. Levine’s report concluded that Martinez was 100 percent permanently and totally disabled.  The report stated the opinion that Martinez’s fibromyalgia was due to CT she incurred during her employment with Edison.  Dr. Levine’s report did not include any apportionment.

The WCJ decided that Martinez was 100 percent disabled and that apportionment was not necessary, relying on Dr. Levine’s opinion that Martinez’s fibromyalgia was completely attributable to her CT claim. The WCAB adopted the judge’s decision without issuing its own opinion.

The Court of Appeal annulled the WCAB’s decision and award.

Quoting from an earlier appellate court decision, the Court of Appeal emphasized that the 2004 workers’ compensation reform legislation represented “a diametrical change in the law with respect to apportionment.” The court pointed out that the plain language of the 2004 legislation requires apportionment to each cause of permanent disability.  In this case, the WCAB failed to follow the mandate to apply apportionment.

The court held that the WCAB’s adoption of the WCJ’s decision was not justified.  The WCJ ignored evidence in order to support the finding that apportionment was not required. The court explained, “In sum, the WCJ’s decision to allow Martinez an unapportioned award for the CT claim rests on a misinterpretation of Dr. Levine’s opinion about the causes of Martinez’s 100 percent disability and a failure to acknowledge that Dr. Levine’s view that there was no specific injury was wrong, a circumstance that removed overlap and apportionment from his medical reporting.  Accordingly, the findings of fact and award on the CT claim must be annulled and the matter remanded for further proceedings.”

A copy of the court’s unpublished opinion is available at www.courts.ca.gov                    

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