Opinion
NOT TO BE PUBLISHED
Proceeding to review a decision of the Workers' Compensation Appeals Board Nos. GRO 023551, GRO 025948
Law Office of Margaret Stone for Petitioner.
No appearance for Respondent Workers' Compensation Appeals Board.
Guilford Steiner Sarvas & Carbonara, Richard E. Guilford; Stockwell, Harris, Widom, Woolverton & Muehl and Michael L. Terry for Respondent California Insurance Guarantee Association.
No appearance for Respondent Oceano Ice Company.
COFFEE, J.
While working as a forklift operator for Oceano Ice Company, Douglas Forzetting industrially injured his back on November 19, 1999, and again on January 27, 2000. Forzetting filed separate applications to obtain workers' compensation for these two injuries. (GRO 25948 and GRO 23551, respectively.)
Dr. Donald Schwartz, the agreed medical examiner, separately apportioned Forzetting's two injuries based on causation, as is now required by amended Labor Code section 4663, subdivision (c). Based on the stipulations of the parties, the workers' compensation judge (WCJ) found that these two separate and specific injuries caused permanent disability (PD) of 47 and 23 percent, respectively.
All statutory references are to the Labor Code unless otherwise stated.
Forzetting petitioned for reconsideration, arguing that these PD ratings should have been combined (merged) under Wilkinson v. Workers' Comp. Appeals Bd. (1977) 19 Cal.3d 491 (Wilkinson), because his injuries acted cumulatively on his back. Relying on former section 4750, Wilkinson held that "whenever a worker, while working for the same employer, sustains successive injuries to the same part of his body and these injuries become permanent at the same time, the worker is entitled to an award based on the combined disability." (Wilkerson, at p. 494.)
The combining of awards matters because PD compensation rating schedules are not linear. The schedules provide much greater awards for those who suffer more severe disabilities. In this case, Forzetting would receive $55,330 if his awards remained separate, but $98,095 if the awards were combined.
PD amounts are calculated in several steps. First, a physician evaluates the applicant and estimates PD as a percentage of relative disability. (Brodie v. Workers' Comp. Appeals Bd. (2007) 40 Cal.4th 1313, 1320 (Brodie).) That PD percentage is then converted into an award based on a rating table. (Ibid.) Before 1972, the rating table was linear. A worker who suffered 10 percent PD would receive 40 weeks of benefits; one who suffered 90 percent PD would receive nine times that amount, or 360 weeks of benefits. (Id. at pp. 1320-1321.) The actual amount of PD benefits one receives depends upon one's age, occupation and earnings before being disabled. To determine the total PD amount owed, one must multiply the number of weeks of PD benefits times the weekly disability allowance that corresponds to the above factors.
In 1971, however, the Legislature amended the rating table, and created a sliding scale of benefits to compensate more generously those with more severe disabilities. (Brodie, supra, 40 Cal.4th at pp. 1320-1321.) Under the new table, benefits for more serious disabilities increased exponentially. (Id. at p. 1321.) A worker with a 10 percent disability would receive about three weeks of benefits for each percent of disability (an award of 30.25 weeks of benefits). But, a worker with a 90 percent disability would obtain about six weeks of benefits for each percent of disability (an award of 541.25 weeks of benefits). Subsequent amendments to the disability tables created an even greater disparity in awards between those with lesser and higher levels of disability. (Id. at p. 1321, fn. 5; Benson v. Workers' Comp. Appeals Bd. (2009) 170 Cal.App.4th 1535, 1541-1542, review denied, Apr.. 29, 2009, S171408 (Benson).)
In denying reconsideration, the en banc Workers' Compensation Appeals Board (Board) concluded that the WCJ correctly applied the recent ruling of Benson in accordance with the views expressed by our Supreme Court in Brodie. Benson concluded that Wilkinson has been superseded by the Legislature in Senate Bill No. 899 (2003-2004 Reg. Sess.) (SB 899). SB 899 was an omnibus bill to restructure workers' compensation law. SB 899 requires evaluation of each injury and separate apportionment for cause. The WCJ and Board concluded that such apportionment precludes combination or merger of PD benefits for distinct injuries.
This petition for review ensued. We denied the petition, but our Supreme Court directed us to vacate our denial, and issue a writ of review to be heard on calendar. The high court provided no other direction. After hearing argument, we conclude that the Board did not err. Current law precludes the merger of PD ratings petitioner seeks. (SB 899; Brodie, supra, 40 Cal.4th 1313; Benson, supra, 170 Cal.App.4th 1535.) Accordingly, we reaffirm the Board's decision. (See Gray v. Superior Court (2002) 95 Cal.App.4th 322, 325, fn. 7.)
DISCUSSION
The issue presented here is whether the Board erred by issuing two, separate PD awards rather than merging them into one, combined award. Forzetting contends that the decisions in Brodie and Benson are unconstitutional because SB 899 did not explicitly repudiate Wilkinson. Forzetting also contends he is being denied equal protection because he is being treated differently than a worker who has the same level of disability, but has only been injured once. We independently interpret statutes according to the usual rules of construction. (See Benson, supra, 170 Cal.App.4th at pp. 1542-1543.)
Although the Legislature did not expressly overturn Wilkinson in SB 899, the passage of this omnibus legislation completely undermined the bases for combining such awards. Wilkinson relied on former sections 4750 and 4663. SB 899 repealed section 4750, amended section 4663 and added section 4664. Former section 4750 read, "An employee who is suffering from a previous permanent disability or physical impairment and sustains permanent injury thereafter shall not receive from the employer compensation for the later injury in excess of the compensation allowed for such injury when considered by itself and not in conjunction with or in relation to the previous disability or impairment." Under former section 4750, Board could not consider some previous injuries and disabilities, or apportion the current injury for cause.
Section 4663 now provides, in pertinent part, "(a) Apportionment of permanent disability shall be based on causation. [¶] (b) Any physician who prepares a report addressing the issue of permanent disability due to a claimed industrial injury shall, in that report, address the issue of causation of the permanent disability. [¶] (c) [T]he report must include an apportionment determination. A physician shall make an apportionment determination by finding what approximate percentage of the permanent disability was caused by the direct result of injury arising out of and occurring during the course of employment and what approximate percentage of the permanent disability was caused by other factors both before and subsequent to the industrial injury, including prior industrial injuries.... [¶] (d) An employee who claims an industrial injury shall, upon request, disclose all previous permanent disabilities or physical impairments."
Section 4664 provides, in pertinent part, "(a) The employer shall only be liable for the percentage of permanent disability directly caused by the injury arising out of and occurring in the course of employment. [¶] (b) If the applicant has received a prior award of permanent disability, it shall be conclusively presumed that the prior permanent disability exists at the time of any subsequent industrial injury...."
Prior law permitted additional compensation if a current injury aggravated (or "lit up") an older injury. Also, no apportionment was required when two injuries to the same body part became permanent and stationary (P&S) at the same time. (See former §§ 4663, 4750; Wilkinson, supra, 19 Cal.3d at pp. 497, 502; Benson, supra, 170 Cal.App.4th at p. 1545 [discussing former law].) Previously, greater compensation could be awarded if the worker could show that before suffering the current injury, he or she had rehabilitated a prior disability. (See Brodie, supra, 40 Cal.4th at pp. 1326-1327 [reversing this rule as inconsistent with the enactment of SB 899, esp. §§ 4663 and 4664, and the repeal of § 4750]; accord, Benson, at pp. 1545, 1557.) Now, a prior disability is conclusively deemed to still exist. (§ 4664.)
Before SB 899, the general rule was that apportionment was concerned with the severity of the total disability, however caused, and not with its etiology. (Benson, supra, 170 Cal.App.4th at pp. 1545, 1557.) Former section 4750 did not require apportionment for every injury in every case. It required apportionment only when the employee was "suffering from a previous permanent disability or physical impairment." In some cases, awards could be combined.
But, section 4750 was repealed and SB 899 completely changed the law. (Benson, supra, 170 Cal.App.4th at pp. 1552-1553, 1556.) Now, under section 4663, apportionment is required for each injury, based on causation. (See Benson, at pp. 1542, 1544, 1549, 1550, 1552-1554, 1558, 1560.) Section 4663 requires physicians to discount all other causes of disability. Section 4663, subdivision (a) states that apportionment of PD "shall be based on causation" for each injury, and provides that the employer is only responsible for disability directly caused by the current injury. Prior disabilities are presumed to still exist, and all other factors of causation must be discounted, regardless of when they occur. (Brodie, supra, 40 Cal.4th at pp. 1327-1328; Benson, at pp. 1552-1553.) Thus, the timing of injuries and the P&S date have become irrelevant. (See Benson, at pp. 1553, 1559.)
Now each injury must be apportioned separately for cause, and awards generally may not be combined, even if the injuries happen to become P&S at the same time. (Brodie, supra, 40 Cal.4th at pp. 1326-1328, 1332-1333; Benson, supra, 170 Cal.App.4th at pp. 1541, fn. 3, 1560; and see §§ 4663, 4664 & 5303.) Combining PD percentages is permitted only when the physician cannot parcel out causation of disability between the injuries. (See Benson, at pp. 1541, fn. 3, 1560.) That situation is not present here. Segregating injuries and apportioning PD by causation of disability, as required by SB 899, is antithetical to combining PD awards as allowed in Wilkinson.
The required segregation of each injury by apportionment for cause comports with the stated reason SB 899 was enacted - to decrease the cost of workers' compensation to employers by ensuring that they pay only for the disability caused by the particular, current injury sustained during the employment. Section 49 of SB 899 states that it was passed as an urgency measure "'... to provide relief to the state from the effects of the current workers' compensation crisis at the earliest possible time....'" (Benson, supra, 170 Cal.App.4th at p. 1554.)
Although the Board may not rule on the constitutionality of statutes, its opinion on legal issues within its domain is entitled to great weight and we should defer to it in the absence of clear error. (See Brodie, supra, 40 Cal.4th at p. 1331; Honeywell v. Workers' Comp. Appeals Bd. (2005) 35 Cal.4th 24, 34; Benson, supra, 170 Cal.App.4th at p. 1558.) Legislative classifications are presumed valid and will be sustained unless they are palpably arbitrary, irrational, and manifestly without support. (See generally Mathews v. Workers' Comp. Appeals. Bd. (1972) 6 Cal.3d 719, 739.) As Brodie and Benson have stated, SB 899 is valid and generally abrogates the rule in Wilkinson, except in circumstances where the physician cannot apportion disability for cause. SB 899 is rationally related to the legitimate governmental interest of reducing workers' compensation costs, and a worker injured twice is often situated differently than a worker injured just once. (See generally Marsh v. Workers' Comp. Appeals Bd. (2005) 130 Cal.App.4th 906, 917.)
As section 5303 states, in pertinent part, "there is but one cause of action for each injury.... [N]o injury, whether specific or cumulative, shall, for any purpose whatsoever, merge into or form a part of another injury...."
New sections 4663 and 4664 are consistent with the rule stated in section 5303. As Brodie and Benson have pointed out, the bases for permitting merger have been repealed and replaced. Now, each injury must be separately apportioned for cause under sections 4663 and 4664, and PD awards may not be combined. (§ 5303; Benson, supra, 170 Cal.App.4th at pp. 1541, fn. 3, 1560.) Thus, the new workers' compensation scheme alters the law of apportionment, except when apportionment is impossible. (Brodie, supra, 40 Cal.4th at pp. 1326-1328, 1332; Benson, supra, 170 Cal.App.4th 1535.)
Accordingly, we reaffirm the decision of the Board.
We concur: YEGAN, Acting P.J., PERREN, J.