for both injuries was 36-1/2 percent. The
judge recalculated the first injury based on
the applicant's age and occupation
immediately preceding me 1992 injury at
12 %. The judge men subtracted 12 from
36-1/2.
industrial injuries result in disabilities
which become P & S at different times and
overlap you determine die combined
disability and then subtract the percentage
of disability due to die prior injury. In this
case that would be 10-3/4. Here there was
no claim of rehabilitation between injuries
as in the Robinson case. Here die neck
condition had not unproved at die time of
the subsequent back injury. So the court
determined that apportionment was valid
under Labor Code section 4750 because
the applicant's preexisting neck disability
raised the existence of overlap.
1996 CCC's discuss the issue of
apportionment and some related issues
and provide a good review and some
clarification. Both cases are non-
published in the official reports but still
make for good argument.
also dealt with a psychiatric issue.
Defendant's are liable for an industrial
injury mat is accelerated, aggravated or "lit
up" a preexisting condition. Here there was
preexisting non industrial Bell's Palsy. The
psychiatric doctor did not explicitly state
that the applicant's apportioned disability
was caused by me natural progression of a
preexisting, nonindustrial condition.
However, the doctor did prepare two forms
indicating the applicant's projected level of
disability if she had not suffered die
industrial injury and the other form
indicating the impairment in the presence
of the industrial injury. The court indicated
this was sufficient under 4663 because the
report contained many references to the
factors the doctor was considering in
apportioning disability.
rehabilitation could "light up" the previous
injury. Defendants would be liable for all
expenses treating that injury and treatment
could not be apportioned.
back injury in which they stipulated to 10-
3/4%. In 1992 the applicant had neck injury
in which the
WCAB AND
KEMPE V.
WCAB
reporting for applicant gave a specific
work restriction. In an additional letter to
the attorney he gave an additional
prophylactic restriction but indicated that
this should not increase the overall
disability. The additional restriction was
not rated. The court indicated it was
wrong not to rate this even if the doctor
did not mean for it to be rated.
Firm: SAMUELSEN, GONZALEZ,
VALENZUELA, AND SORKOW
Phone: (310) 831-0872
Address: 350 WEST FIFTH ST.
SAN PEDRO CA 90731
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