New Turn on the Apportionment Road: Applying Apportionment Law to the Conclusive Presumption of Labor Code Section 4662(a)
| Publication year | 2020 |
| Author | Lauren J.M. Zalona, Esq. |
Lauren J.M. Zalona, Esq.
San Jose, California
The employer is liable only for the percentage of permanent disability directly caused by the injury arising out of and in the course of employment. Consequently, defense attorneys operate on high alert when posed with an injured worker's medical history or past medical complaints. The apportionment of permanent disability related to preexisting and or nonindustrial causes is at the forefront of every defense attorney's mind when handling a claim. It is, after all, one of the few legal theories in the workers' compensation system, other than affirmative legal defenses, for which the defense holds the burden to prove. Therefore, it is essential for a defense attorney to be aware of developments in apportionment law when they unfold. This is especially true in extremely high exposure cases that involve the Labor Code section 4662(a) presumption that an injured worker is permanently and totally disabled. New developments regarding whether there can be apportionment in those cases have been playing out in several WCAB panel decisions. This article explores this development in the law so the practitioner can be well versed when they are in the discovery and litigation phases of a case with these apportionment issues.
The issue involved is the application of the principles of apportionment law to a Labor Code section that provides for a conclusive presumption of permanent total disability. To begin with, we should address the language of the relevant statutes.
Labor Code section 4662(a) provides:
Any of the following permanent disabilities shall be conclusively presumed to be total in character:
(1) Loss of both eyes or the sight thereof.
(2) Loss of both hands or the use thereof.
(3) An injury resulting in a practically total paralysis.
(4) An injury to the brain resulting in permanent mental incapacity.
Right after Labor Code section 4662(a) comes the apportionment statute of Labor Code section 4663(a), which states: "Apportionment of permanent disability shall be based on causation."
In addition, Labor Code section 4664(a) provides:
The employer shall only be liable for the percentage of permanent disability directly caused by the injury arising out of and occurring in the course of employment.
The question of whether the Labor Code's mandate to apportion causation of...
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