Evidentiary Presumptions and the Outlier Panel Decision in Fraire
| Publication year | 2020 |
| Author | Justin Sonnicksen, Esq. |
Justin Sonnicksen, Esq.
Pleasant Hill, California
It is well settled that a three-commissioner panel decision of the Workers' Compensation Appeals Board (WCAB) is not binding authority on judges at the trial level. However, a recent 2-1 decision of the WCAB merits discussion on the grounds that it reached a conclusion inconsistent with multiple prior reported cases addressing the issue of apportionment when a disability is presumed total in character. On March 5, 2020, a split panel of the WCAB issued the decision in Fraire v. California Dept of Corrections, 2020 Cal.Wrk.Comp. P.D. LEXIS 60. The WCAB remanded the case to the trial judge to consider the issue of apportionment of permanent disability (PD) under Labor Code section 4663, despite the fact that applicant's disability was presumed total under Labor Code section 4662(a). This WCAB panel decision is inconsistent with the language of Labor Code section 4662(a), with the purpose of evidentiary presumptions, and with multiple prior panel decisions addressing the same issue. This author believes the Fraire decision is a mere aberration, for the reasons set forth in the following text.
The panel decision in Fraire was summarized at length in "New Turn in the Apportionment Road: Applying Apportionment Law to the Conclusive Presumption of Labor Code Section 4662(a)" by Lauren J.M. Zalona, in Volume 33, No. 2, of the Workers' Compensation Quarterly. Here is just a brief summary of the facts.
Applicant sustained multiple industrial injuries, including one resulting in a total loss of vision. There was no dispute that applicant was blind in both eyes. The evaluating physician opined that nonindustrial factors caused 40 percent of the patient's PD. However, the trial judge awarded 100 percent permanent total disability (PTD) to applicant, consistent with Labor Code section 4662(a)(1). Defendant filed a Petition for Reconsideration. In a 2-1 decision, the WCAB granted reconsideration and held that even for disabilities presumed to be total under Labor Code section 4662(a), apportionment under Labor Code section 4663 may be appropriate. (Labor Code section 4664 apportionment was not at issue in the case.) The panel remanded the case to the trial judge to consider whether defendant had met its burden of proof on apportionment of PD, in light of the evaluating physician's opinion that nonindustrial factors caused a portion of applicant's blindness (as well as to consider apportionment of the industrial component of the PD between two injuries consistent with Benson v. WCAB (2009) 170 Cal.App.4th 1535).
Commissioner Zalewski issued a dissenting opinion summarizing the law on evidentiary conclusive presumptions in general. Her opinion noted that conclusive presumptions reflect a public policy goal of the Legislature and that a party cannot introduce evidence to rebut them. The Commissioner also summarized prior WCAB panel decisions holding that permanent disabilities conclusively presumed to be total are not subject to apportionment under either section 4663 or section 4664 of the Labor Code (and summarized instances in which the Court of Appeal denied writ).
Applicant was first aggrieved by the panel decision; accordingly, she filed a Petition for Reconsideration. However, on August 7, 2020, the commissioners denied the petition on the grounds that its March 5, 2020, decision was not "final," so a party could not petition for its reconsideration. (The March 5, 2020, decision was a remand to the trial judge to consider the issue of apportionment under Labor Code section 4663; there was no final award of PD.) Pursuant to Hikida v. WCAB (2017) 12 Cal.App.5th 1249, applicant has no appellate remedy at this juncture and none until the WCAB renders a final award.
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Under Evidence Code section 601, a presumption is either conclusive or rebuttable. Every rebuttable presumption is either a presumption affecting the burden of producing evidence or a presumption affecting the burden of proof. Where the law establishes a conclusive presumption, no evidence can be offered to dispute it (People v. McCall (2004) 32 Cal.4th 175). A conclusive presumption is entirely different from the ordinary rebuttable presumption. It need not have a logical basis, and no evidence may be received to contradict it (1 Witkin, Cal. Evidence (4th ed. 2000)). Conclusive...
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