case.
industrial injury in
1993. The applicant
1996. After the second injury, the
applicant settled the first injury
by Stipulation With Request For
Award for 42 3/4 percent
permanent disability. This may
have been a tactical error by
applicant's attorney.
Judge (WCJ) ruled the applicant
was 100 percent disabled.
However, the WCJ apportioned.
The WCJ used the subtraction
percent prior award leaving the
applicant with a 57 1/4 percent
award for the second injury.
Applicant wanted a finding of
100 per cent.
Workers' Compensation Appeals
Board (WCAB) agreed with the
WCJ and denied the petition. The
applicant then filed a Writ and
this court reviewed the facts.
reviewed the applicable case law
regarding section 4750. They
determined that in this case there
was an Agreed Medical Examiner
(AME) who apportioned to the
prior disability. Moreover, at the
time of the second injury, the
applicant was receiving
treatment, taking medication,
wearing a leg brace, and taking
time off work.
new bill that was a conclusive
presumption on apportionment.
(SB 899). This was regardless of
the date of injury. They indicated
that the law states that the prior
injury is conclusively presumed
to exist at the time of the
subsequent injury. They
indicated that even if there was
not substantial evidence to
support apportionment the
WCAB would be bound to
apportion based on the
conclusive presumption. Even
though this is a non published
case this case is very significant
as to how the court will rule.
Firm: Samuelsen, Gonzalez,
Valenzuela and Brown
Address: 18500 Von
Karman #470, Irvine
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