Walking on Eggshells: Properly Apportioning to Causation of Permanent Disability and Not Causation of Injury

• Jurisdiction: California,United States
• Author: The Hon. Eric Ledger
• Publication year: 2021
• Citation: Vol. 34 No. 1

Walking on Eggshells: Properly Apportioning to Causation of Permanent Disability and Not Causation of Injury

The Hon. Eric Ledger¹

Sacramento, California

Disclaimer: The opinions expressed in this article are solely those of the author. Judge Ledger does not speak for or espouse any opinion of the Workers' Compensation Appeals Board, Department of Industrial Relations, The State of California, or any other entity.

To paraphrase the classic nursery rhyme:

Humpty Dumpty sat on a wall.
Humpty Dumpty had a great fall.
All the king's lawyers and doctors agree,
Not applicable is Labor Code section 4663.

Labor Code section 4663 states, in pertinent part: "(a) Apportionment of permanent disability shall be based on causation." There remains significant confusion within the workers' compensation community as to the issue of apportionment of permanent disability under Labor Code section 4663. Perhaps most confusing is that apportionment is to causation of disability and not to causation of injury (Escobedo v. Marshalls (2005) 70 Cal. Comp.Cases 604, 611 (en banc)).

To appreciate the difference between causation of injury and causation of disability, we must first turn to the Supreme Court decision in Brodie v. Workers' Comp. Appeals Bd. (Brodie) (2007) 40 Cal.4th 1313. A significant paragraph in Brodie is the historical definition of permanent disability, as follows:

Permanent disability is understood as the 'irreversible residual of an injury' (Citation.). A permanent disability is one '...which causes impairment of earning capacity, impairment of the normal use of a member, or a competitive handicap in the open labor market.' (Citation.) Thus, permanent disability payments are intended to compensate workers for both physical loss and the loss of some or all of their future earning capacity.

(Brodie, supra, at p. 1320.)²

The next concept to understand in order to determine apportionment is that we do not care whether applicant was more susceptible to sustaining permanent disability. As the California Supreme Court has said:

A corollary of the no-fault principles of workers' compensation is that "an employer takes the employee as he finds him at the time of the employment." [Citations.] Thus, an employee may not be denied compensation merely because his physical condition was such that he sustained a disability which a person of stronger constitution or in better health would not have suffered.

(South Coast Framing v. Workers' Comp. Appeals Bd. (Clark) (2015) 61 Cal.4th 291, 300.)

[Page 17]

While this author recognizes that Clark dealt with the issue of injury AOE/COE and not apportionment, the Supreme Court used the word disability and not injury in the preceding quote. The Supreme Court's words here correctly state the law. The question of whether an applicant is more susceptible to sustaining a disability is not germane to the question of apportionment of disability. To understand why, comprehending the purpose of the amendments made to the Labor Code under SB 899 is essential.

Until

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