Davis v. Workers' Comp. Appeals Bd.

• Decision Date: 30 November 2006
• Docket Number: No. H029834.,No. H029544.,H029544.,H029834.
• Citation: 145 Cal.App.4th 324,51 Cal.Rptr.3d 605
• Court: California Court of Appeals Court of Appeals
• Parties: Fortunata Mary DAVIS, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD and Allied Security et al., Respondents. Moises Torres, Petitioner, v. Workers' Compensation Appeals Board and Williams Tank Lines et al., Respondents.

51 Cal.Rptr.3d 605

145 Cal.App.4th 324

Fortunata Mary DAVIS, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD and Allied Security et al., Respondents.

Moises Torres, Petitioner, v. Workers' Compensation Appeals Board and Williams Tank Lines et al., Respondents.

No. H029544.

No. H029834.

Court of Appeal, Sixth District.

November 30, 2006.

Russell D. Jacobson, San Jose, Butts & Johnson, for Petitioner, Fortunata Mary Davis.

Michael P. Holmes, San Diego, Laughlin, Falbo, Levy & Moresi, for Respondent, Allied Security.

David J. Froba, for Amicus Curiae for Petitioner, California Applicants' Attorney Association.

Leah D. Davis, Office of the County Counsel, for Amicus Curiae for Respondent, County of Los Angeles.

Jim Gonzalez, The Law Offices of Jim Gonzalez, for Petitioner, Moises Torres.

Marshall G. Candee, San Jose, Law Offices of Marshall Candee, for Respondent, Williams Tank Lines.

PREMO, Acting P.J.

I. Introduction

The question in these workers' compensation cases is whether the Legislature's 2004 overhaul of the workers' compensation statutes (Stats. 2004 (2003-2004 Reg. Sess.) ch. 34, p. 142 et seq.) was intended to alter the formula used to calculate a permanent disability award when the employee's overall disability is subject to apportionment. We conclude that, notwithstanding the recent changes to the law, the calculation adopted by Fuentes v. Workers' Comp. Appeals Bd. (1976) 16 Cal.3d 1, 128 Cal.Rptr. 673, 547 P.2d 449 (Fuentes) continues to be appropriate. In so concluding we disagree with E & J Gallo Winery v. Workers' Comp. Appeals Bd. (Dykes) (2005) 134 Cal.App.4th 1536, 37 Cal. Rptr.3d 208 (Dykes) (Fifth Dist.) and Nabors v. Workers' Comp. Appeals Bd. (2006) 140 Cal.App.4th 217, 44 Cal.Rptr.3d 312 (Nabors) (First Dist., Div. Two).¹

II. Factual and Procedural Background

The facts may be briefly stated. In the first case (case No. H029544), petitioner Fortunata Mary Davis suffered a work-related back injury that left her 100 percent permanently disabled. Davis had suffered a prior work-related injury for which she received an award for permanent partial disability of 35 percent. Using the formula prescribed by the Supreme Court in Fuentes, the Workers' Compensation Administrative Law Judge (WCJ) deducted the 35 percent disability from the overall disability of 100 percent and awarded Davis compensation for permanent partial disability of 65 percent, which was $65,662.50. Davis petitioned the Workers' Compensation Appeals Board (WCAB) for reconsideration arguing that the WCJ should have used the formula later approved by the appellate court in Dykes, supra, 134 Cal.App.4th 1536, 37 Cal. Rptr.3d 208. The Dykes formula would have given her the full benefit allowed for 100 percent disability less credit to her employer for the dollar value of the prior award. This calculation would have resulted in payments of approximately $420,649.21 over Davis's remaining life expectancy.

In the second case (case No. H029834), petitioner Moises Torres injured his back and his knees while working for respondent Williams Tank Lines, leaving him with an overall disability rating of 52 percent. He had previously received an award for permanent partial disability of 24 percent as the result of a spinal injury. The WCJ applied the Fuentes calculation, which gave Torres a permanent partial disability-award of $16,277.50.² Torres also petitioned the WCAB for reconsideration, urging it to use the alternative calculation, which would have resulted in an award of $31,360.

In denying the petitions the WCAB followed the en banc decision in Nabors v. Piedmont Lumber & Mill Co. (2005) 70 Cal.Comp.Cases 856, which held that the Fuentes formula had not been affected by the 2004 changes to the apportionment statutes. Dykes, supra, 134 Cal.App.4th 1536, 37 Cal.Rptr.3d 208 later overruled Nabors v. Piedmont and shortly thereafter Nabors v. Piedmont was reversed by Nabors, supra, 140 Cal.App.4th 217, 44 Cal. Rptr.3d 312. We issued writs of review in the present cases and ordered the two cases considered together for purposes of oral argument and decision.

III. Issue

Thirty years ago, Fuentes set forth the formula to use when calculating permanent disability compensation in cases where the current disability is subject to apportionment for a preexisting disability. (Fuentes, supra, 16 Cal.3d 1, 128 Cal.Rptr. 673, 547 P.2d 449.) Under Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937, we are bound to follow the decisions of the Supreme Court unless they are overruled, altered by statute, or can be validly distinguished. We cannot rely upon cases decided under prior law to interpret a quite different code section. (People v. Valentine (1946) 28 Cal.2d 121, 144,169 P.2d 1.) On the other hand, when the Legislature enacts a statute, we presume that the Legislature did not intend to overthrow long-established principles of law unless such an intention is clearly expressed or necessarily implied. (People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 199, 96 Cal.Rptr.2d 463, 999 P.2d 686; see also Fuentes, supra, 16 Cal.3d at p. 7, 128 Cal.Rptr. 673, 547 P.2d 449; Theodor v. Superior Court (1972) 8 Cal.3d 77, 92, 104 Cal.Rptr. 226, 501 P.2d 234.) Unless the Legislature plainly intends to change a judicial result based upon an earlier version of a statute we are bound by the prior judicial result. (People v. Eastman (1993) 13 Cal.App.4th 668, 676, 16 Cal.Rptr.2d 608.)

The statutory basis for the Fuentes holding was former Labor Code section 4750.³ Although the Legislature repealed former section 4750 in 2004, it also repealed two related sections pertaining to apportionment and "recast" the substance of all three provisions in new sections 4663 and 4664. (Stats.2004, ch. 34, supra, at p. 146.) The question before us, therefore, is whether these changes demonstrate that the Legislature clearly intended to alter the Fuentes rule. We begin by comparing the former law with the new sections pertaining to apportionment.⁴

IV. Prior Law

A Apportionment

In workers' compensation jargon, when permanent disability benefits are reduced based upon permissible factors, the employee's overall disability is said to be "apportioned to" those factors. (See, e.g., Callahan v. Workers' Comp. Appeals Bd. (1978) 85 Cal.App.3d 621, 631, 149 Cal. Rptr. 6470 "`Apportionment is the process employed by the [WCAB] to segregate the residuals of an industrial injury from those attributable to other industrial injuries, or to nonindustrial factors, in order to fairly allocate the legal responsibility.' " (Fresno Unified School Dist. v. Workers' Comp. Appeals Bd. (2000) 84 Cal. App.4th 1295, 1304, 101 Cal.Rptr.2d 569, (Fresno) brackets in original, quoting Ashley v. Workers' Comp. Appeals Bd. (1995) 37 Cal.App.4th 320, 326, 43 Cal. Rptr.2d 589.) Whether or not apportionment is appropriate in a given case is a question of fact. It is the employer's burden to establish the right to apportionment. (Fresno, supra, 84 Cal.App.4th at p. 1304,101 Cal.Rptr.2d 569.)

Under former law apportionment focused upon the disability. "It is disability resulting from, rather than the cause of, a disease which is the proper subject of apportionment; `pathology' may not be apportioned." (Pullman Kellogg v. Workers' Comp. Appeals Bd. (1980) 26 Cal.3d 450, 454, 161 Cal.Rptr. 783, 605 P.2d 422.) Former sections 4663, 4750, and 4750.5 set forth the rules for apportionment. The general rule was "`that an employer takes the employee as he finds him at the time of employment and when subsequent injury lightens up or aggravates a previously existing condition rendering it disabling, liability for `the full disability without proration is imposed upon the employer.' (Colonial Ins. Co. v. Industrial Acc. Com. (1946) 29 Cal.2d 79, 83-84, 172 P.2d 884.)" (Zemke v. Workmen's Comp.App. Bd. (1968) 68 Cal.2d 794, 796, 69 Cal.Rptr. 88, 441 P.2d 928.) An employer was entitled to apportionment only if the "`normal progress'" of the preexisting condition would have resulted in the disability in the absence of the industrial injury. (Ibid.; and see former § 4663.) Apportionment was required, however, if the permanent disability was "caused solely by [a] subsequent noncompensable injury." (Former § 4750.5.)

Apportionment was also required where an actual disability preexisted the industrial injury. (Edson v. Industrial Acc. Com. (1928) 206 Cal. 134, 139, 273 P. 572.) Former section 4750 provided that an injured employee suffering from an existing disability or physical impairment could not be compensated based upon the "combined disability, but only for that portion due to the later injury as though no prior disability or impairment had existed." Apportionment depended upon the actual existence of the prior disability at the time of the second injury. A previous award for partial permanent disability did not necessarily require apportionment. An employee could become completely rehabilitated before suffering a new disabling injury and in such a case the employer would not be entitled to apportionment for the prior disability. (Robinson v. Workers' Comp. Appeals Bd. (1981) 114 Cal.App.3d 593, 602, 171 Cal.Rptr. 48.)

B. Fuentes

Where a permanent disability is apportioned to a preexisting disability one may calculate the dollar amount due for the compensable portion in different ways. Prior to 1972 it did not matter which way one calculated it, the result would be the same because the compensation schedule progressed arithmetically; a permanently disabled employee was entitled to four weeks of benefits for every percentage point of permanent disability that was of industrial origin. (Fuentes, supra, 16 Cal.3d at p. 4, 128 Cal.Rptr. 673, 547 P.2d 449 citing former § 4658.)

In 1971, the Legislature changed the compensation schedules for permanent disability to make compensation increase exponentially with the severity of the disability. (Fuent...