Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDINGS; petition for writ of review from a decision of the Workers’ Compensation Appeals Board, No. STK207712, Rick Dietrich, James C. Cuneo, and Ronnie G. Caplane, Commissioners. Scott E. Crawford, Workers’ Compensation Administrative Law Judge.
Harbinson Tune Kasselik, Thomas J. Harbinson and Joanna Lynn Drozd, for Petitioner.
No appearance by Respondent Workers’ Compensation Appeals Board.
Frailing Rockwell, Kelly & Duarte, and Jeffrey R. Duarte, for Respondent Joseph Rubio.
OPINION
Before Vartabedian, Acting P.J., Gomes, J., and Hill, J.
E. & J. Gallo Winery (Gallo) petitions for a writ of review from a decision of the Workers’ Compensation Appeals Board (WCAB). (Lab. Code, §§ 5950, 5952; Cal. Rules of Court, rule 8.494.) Gallo contends the WCAB erred in concluding Gallo did not meet its burden of proving that a permanent disability award should have been apportioned to a prior injury. We will deny the petition.
Further statutory references are to the Labor Code unless otherwise stated.
BACKGROUND
Joseph Rubio was employed as a general winery worker for Gallo in Modesto on April 22, 2004, when he sustained an admitted industrial injury to his left shoulder. The parties submitted the issues of permanent disability, apportionment, and the need for further medical treatment to a workers’ compensation law judge (WCJ) based on three 2007 medical reports from agreed medical examiner Donald Pang, M.D., and a prior May 10, 2000, qualified medical examination report by John L. Branscum, M.D. No testimony was admitted to the record.
On January 15, 2008, the WCJ concluded Rubio was 15 percent permanently disabled, amounting to $13,050 over 65.25 weeks less attorney fees, plus further medical treatment to his left shoulder. The WCJ found no basis to apportion the award to any prior injury.
Gallo petitioned the WCAB for reconsideration, arguing the WCJ’s denial of apportionment lacked any basis in law or fact. Gallo contended the WCJ failed to consider a prior 11 percent permanent disability award for an upper back injury which Rubio did not reveal despite Gallo’s demand for disclosure.
In a report and recommendation to the WCAB, the WCJ explained there was no evidence in the record that Rubio actually received a prior 11 percent permanent disability award. The WCJ added that even assuming a prior award existed, Gallo did not demonstrate the prior disability overlapped with his current disability warranting apportioning the award. The WCAB subsequently adopted the WCJ’s reasoning in denying reconsideration.
DISCUSSION
In reviewing a workers’ compensation decision, we follow the legislative mandate that the WCAB’s findings “on questions of fact are conclusive and final and are not subject toreview.” (§ 5953.) We thus “may not reweigh the evidence or decide disputed questions of fact.” (Western Growers Ins. Co. v. Workers' Comp. Appeals Bd. (1993) 16 Cal.App.4th 227, 233.)
Gallo contends the WCAB should have reduced Rubio’s permanent disability award because it met its burden of proving a prior industrial injury. “Employers must compensate injured workers only for that portion of their permanent disability attributable to a current industrial injury, not for that portion attributable to previous injuries or to nonindustrial factors. ‘Apportionment is the process employed by the Board 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.’” (Brodie v. Workers’ Comp. Appeals Bd. (2007) 40 Cal.4th 1313, 1321.)
As part of Senate Bill No. 899’s comprehensive reforms effective April 19, 2004, apportionment is now based on causation rather than disability. (§ 4663, subd. (a); Stats. 2004, ch. 34, § 34.) Thus, an employer is only “liable for the percentage of permanent disability directly caused by the injury arising out of and occurring in the course of employment.” (§ 4664, subd. (a).) Moreover, the WCAB must now conclusively presume that if an injured employee received a prior permanent disability award, that level of disability existed at the time of any subsequent injury. (§ 4664, subd. (b).) An examining physician’s report addressing permanent disability is only complete if it addresses apportionment and the physician makes “an apportionment determination by finding what approximate percentage of the permanent disability was caused by the direct result of injury arising out of and occurring in the course of employment and what approximate percentage of the permanent disability was caused by other factors both before and subsequent to the industrial injury, including prior industrial injuries.” (§ 4663, subd. (c); see also Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604.) In other words, an employer’s permanent disability liability is appropriately reduced by the existence of either a prior workers’ compensation award (§ 4664, subd. (b)) or nonindustrial factors sufficiently described in the medical evidence (§ 4663, subd. (c)). In adopting the WCJ’s report and recommendation, the WCAB here found both grounds for apportioning Rubio’s permanent disability award lacking.
Although Gallo contends Rubio received a prior permanent disability award due to a 1999 lower back injury that must be apportioned out of his current 15 percent level of permanent disability, Gallo never offered any definitive evidence into the WCAB record that a prior award existed. Instead, Gallo only produced Dr. Branscum’s medical reporting from 2000. As the WCJ explained, however, “[t]here is no Compromise & Release agreement, there is no Stipulation with Request for Award nor is there a Finding & Award indicating a prior permanent disability of 11%” Although Gallo attempts to blame Rubio for not producing the prior award, the burden of proof was on Gallo as the one standing to benefit from such evidence. (§§ 3202.5, 5705; Pullman Kellogg v. Workers’ Comp. Appeals Bd. (1980) 26 Cal.3d 450, 456; Escobedo v. Marshalls, supra, 70 Cal.Comp.Cases at pp. 612-213.) That burden is particularly applicable here because, according to Dr. Branscum, Rubio reportedly sustained a June 17, 1999, injury “while working for Gallo Winery.” Thus, if a prior permanent disability award existed, Gallo should not have needed to search beyond its own employment files. Although Dr. Pang in his supplemental reporting, after reviewing Dr. Branscum’s medical report, also acknowledged that Rubio “[a]pparently” received an 11 percent prior permanent disability award, Dr. Pang noted that Rubio denied receiving a prior award. Given the dispute, the WCAB was free to reject the possibility of a prior disability award as a basis to apportion Rubio’s level of current permanent disability.
The WCJ went on to conclude that even assuming the prior award existed, Gallo failed to demonstrate apportionment was warranted. The parties, the WCJ, and WCAB all agree that in apportioning permanent disability, the employer carries the burden of proving that some or all of an injured worker’s current level of permanent disability overlaps with a prior permanent disability. As the Third Appellate District summarized:
Citing Kopping v. Workers’ Compensation Appeals Bd. (2006) 142 Cal.App.4th 1099, 1115 (Kopping), Gallo states in its petition for writ of review: “An award of permanent disability must be apportioned to the extent that the employer carries its burden of proving that some or all of the applicant’s current permanent disability overlaps with the prior permanent disability, and is therefore attributable to the prior injury.”
“Under our construction of the statute, what section 4664(b) does is simply prevent a claimant from defeating an employer’s showing of apportionment by proving medical rehabilitation from a prior permanent disability for which he or she received permanent disability benefits. In such a case, the employer otherwise continues to bear the burden of proof on the issue of apportionment. First, the employer must prove the existence of the prior permanent disability award. Then, having established by this proof that the permanent disability on which that award was based still exists, the employer must prove the extent of the overlap, if any, between the prior disability and the current disability. Under these circumstances, the employer is entitled to avoid liability for the claimant’s current permanent disability only to the extent the employer carries its burden of proving that some or all of that disability overlaps with the prior disability and is therefore attributable to the prior industrial injury, for which the employer is not liable.” (Kopping v. Workers’ Comp. Appeals Bd., supra, 142 Cal.App.4th at p. 1115.)
Addressing apportionment, Dr. Pang states in his second supplemental report:
“[Dr. Branscum] assigned the patient a prophylactic work restriction precluding him from heavy lifting with the left upper extremity above shoulder height pertaining to the thoracic spine. Apparently, Mr. Rubio received an 11% permanent disability award.
“Mr. Rubio related a prior upper back injury five years ago, but he commented he had not received any permanent disability. Clearly, this is in error and Mr. Rubio sustained prior trauma to the cervical spine which led to discomfort in the left upper extremity as noted by his complaints of pain when he would reach shoulder height, above or lift objects.
“Thereby, I would apportionment [sic] by direct subtraction taking into consideration Labor Code 4664.”
In addition to finding Dr. Pang’s medical reporting incomplete under section 4663, subdivision (c), by not setting forth the approximate percentages of permanent disability caused by the direct result of the current injury and other factors, the WCJ did not view Dr. Pang’s medical reporting as evidence of any overlap between the injuries. The WCJ explained:
“Factors in the present disability case are the loss of range of motion [of] the shoulder, arthroplasty and a 1% whole person impairment for pain. At the time Dr. Branscum evaluated the applicant there was no loss of range of motion and the applicant certainly had not had shoulder surgery. Thus the factors of disability contained in Dr. Branscums [sic] report and Dr. Pangs [sic] report do not overlap.
“There is no discussion in Dr. Pangs [sic] report as to how the disabilities would overlap. Dr. Pang has merely stated his conclusions and has given no support for his conclusion. There is no discussion for the reason behind his conclusion or why medically it is appropriate to find overlap of the factors of permanent disability.
“The factors of disability/impairment in the present case are based upon objective factors of loss of range of motion and athroplasty. These are new factors of disability not present at the time of Dr. Branscum’s evaluation.”
Although Gallo contends that Rubio “failed to meet his burden of proving by substantial evidence that he is entitled to an unapportioned award of permanent disability indemnity,” Rubio carried no such burden of proof. As the WCAB concluded, it was Gallo that failed to meet its burden of proving apportionment due to overlapping injuries.
DISPOSITION
The petition for writ of review is denied. Rubio’s request for attorney fees is denied. This opinion is final forthwith as to this court.