Opinion
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LINDA BECERRA, Applicant v. CONIFER HEALTH SOLUTIONS, PERMISSIBLY SELF-INSURED, ADMINISTERED BY SEDGWICK CLAIMS MANAGEMENT SERVICES, Defendants Adjudication No. ADJ8185944 Workers’ Compensation Appeals Board State of CaliforniaNovember 8, 2023OPINION AND ORDER GRANTING PETITION FOR RECONSIDERATION AND DECISION AFTER RECONSIDERATION
KATHERINE A. ZALEWSKI, CHAIR
Defendant Conifer Health Solutions seeks reconsideration of our September 18, 2023 Opinion and Order Granting Petition for Reconsideration and Decision After Reconsideration, wherein we determined, in relevant part, that applicant had sustained 92 percent permanent partial disability, and that the State Average Weekly Wage (SAWW) adjustments required by Labor Code section 4659(c) were to commence January 1, 2014.
Commissioner Dodd, who was previously a member of this panel, is currently unavailable. Another panelist has been substituted in her place.
All further statutory references are to the Labor Code unless otherwise stated.
Defendant contends that pursuant to Baker v. Worker's Comp. Appeals Bd. (2011) 52 Cal.4th 434 [76 Cal.Comp.Cases 701] (Baker), SAWW adjustments are to begin on the January 1 following "the date on which partial permanent disability benefits become exhausted in the case of life pension payments." (Id. at p. 439.) Defendant avers that permanent disability benefits in this matter commence November 23, 2013, and will extend for 785 weeks, ending on approximately December 10, 2028. (Petition for Reconsideration, p. 2:25.) Accordingly, applicant's life pension benefits will not commence until 2028. Defendant therefore avers error in
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our determination that the SAWW adjustment of section 4659(c) "shall commence January 1, 2014." (Finding of Fact No. 9.)
We agree. Section 4659(c) provides for SAWW adjustments to the award of both life pension benefits (section 4659(a)) and permanent total disability benefits (section 4659(b)). Here, the award of 92 percent disability will be followed by a life pension, and the applicable SAWW adjustment will commence on the January 1 following the date on which partial permanent disability benefits are exhausted. Accordingly, we will grant defendant's Petition, and affirm our September 18, 2023 Decision After Reconsideration, except that we will amend Finding of Fact No. 10 to reflect that SAWW adjustment pursuant to Labor Code section 4659(c) shall commence on the January 1 following the date on which partial permanent disability benefits are exhausted.
For the foregoing reasons,
IT IS ORDERED that reconsideration of the Opinion and Order Granting Petition for Reconsideration and Decision After Reconsideration, issued on September 18, 2023, is GRANTED.
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IT IS FURTHER ORDERED as the Decision After Reconsideration of the Workers' Compensation Appeals Board that the Opinion and Order Granting Petition for Reconsideration and Decision After Reconsideration issued on September 18, 2023 is AFFIRMED, except that it is AMENDED as follows:
FINDINGS OF FACT
10. SAWW adjustments pursuant to Labor Code section 4659(c) shall commence on the January 1 following the date on which partial permanent disability benefits are exhausted.
I CONCUR, JOSEPH V. CAPURRO, COMMISSIONER, LISA A. SUSSMAN, DEPUTY COMMISSIONER
SERVICE MADE ON THE ABOVE DATE ON THE PERSONS LISTED BELOW AT THEIR ADDRESSES SHOWN ON THE CURRENT OFFICIAL ADDRESS RECORD.
LINDA BECERRA BERKOWITZ & COHEN THOMAS KINSEY
SAR/abs