Vol. XII No. V
May 2006
COMPENSATION
NEWS
MONTHLY REPORT
Apportionment can be applied on Petition
To Reopen when no previous
apportionment was applied
The applicant filed a timely
Petition To Reopen under Labor
Code sections 5803, 5804 and
5410. The Petition To Reopen
proceeded to trial March 2,2004.
On April 19, 2004 SB 899 was
passed. On April 23, 2004 the
WCJ indicated the new law of
apportionment would apply.
The applicant filed a Petition
for Removal to the Workers'
Compensation Appeals Board
(WCAB) contending
apportionment under SB 899
could not be applied. The WCAB
invited briefs from the workers'
compensation community.
The WCAB issued an en banc
decision in this case. The WCAB
indicated that when you file a
Petition To Reopen you have
reopened the issue of permanent
disability. This may
now include disability that could
not be apportioned prior to SB
899. Therefore, on the Petition To
Reopen you can now apportion to
pathology, asymptomatic prior
conditions, retroactive
prophylactic conditions, etc. If the
new number is lower that does not
change the original award.
However, defendants should
consider whether they should do a
simultaneous Petition To Reduce.
This is an en banc
decision
The applicant filed a claim for
an injury March 22,1995. The
claim was admitted and the case
went to trial. The Workers'
Compensation Judge (WCJ)
found permanent disability to
the left ear, neck, and left upper
extremity at 67%. This rating
was determined by "baseball
arbitration" under former Labor
Code section 4065. There was
no apportionment.
Editor: Harvey Brown Firm:
Samuelsen, Gonzalez,
Valenzuela and Brown
Address: 18500 Von
ECarman #470, Irvine
Phone: 949 252-1300
In this issue..
Vargas v Atascadero State
Hospital
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