In this issue...
Marsh v WCAB (Bostitch)
1
Vol. XI No.8
AUGUST 2005
COMPENSATION
NEWS
MONTHLY REPORT
The Appellate Court issues apportionment
decision that is published
This is a fifth
appellate district
published opinion
T
he applicant sustained
an industrial injury to
his back. The parties
stipulated to a 46 % permanent
disability. This was based on an
agreed medical examiner opinion.
The stipulation was approved in
March 2001, before the new
apportionment law went into
effect.
In November 2001, the
applicant filed a petition to
reopen for new and further
disability.
The case was presented to a
Workers' Compensation Judge
(WCJ) in February 2004. The
WCJ found the applicant was
entitled to 70 % permanent
disability without apportionment.
Apportionment was
considered under the old
apportionment law prior to April
19,2004. The defendant
petitioned the Workers'
Compensation Appeals Board
(WCAB) for review because the
new apportionment law was
passed 10 days after the WCJ's
decision. The WCAB remanded
for the WCJ to determine
whether SB 899 applied. The
applicant preempted the WCJ by
immediately filing a WRIT.
The appellate court discussed
the conclusive presumption of
Labor Code section 4664 (b).
They further discussed the
WCAB's continuing jurisdiction
under Labor Code sections 5410,
5803, and 5804.
They concluded that
reopening discovery and further
developing the record may be
required to consider
apportionment .
They indicated it was not
relevant that many cases in the
pipeline may have been blind
sided by the new legislation.
The important concept with
this case is that even if there was
no apportionment in the first
stipulation you may get
apportionment on reopening.

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Editor: Harvey Brown
Firm: Samuelsen, Gonzalez,
Valenzuela and Brown
Address: 18500 Von
Karman #470, Irvine
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