Opinion
NOT TO BE PUBLISHED
WCAB Case Nos. OAK 321114 WCK 65956
Kline, P.J.
City of Oakland (City) firefighter Steven Baptista sustained industrial back injuries in 1982 and 1986, for which he received, in 1988, a stipulated workers’ compensation award based on a permanent disability rating of 17.75 percent. In 1997, he received a stipulated award for back injury cumulative to October 1993, based on a 17.25 percent permanent disability rating. On March 28, 2000 and June 24, 2001, Baptista sustained the back and upper right extremity injuries at issue here.
After a hearing (matter submitted on stipulations and exhibits), the Workers’ Compensation Judge (WCJ) found the case to be on all fours with E & J Gallo Winery v. Workers’ Comp. Appeals Bd. (2005) 134 Cal.App.4th 1536 (Dykes), and accordingly awarded Baptista benefits based on an overall rating of 81 percent permanent disability, minus the amounts paid for the previous injuries. The Workers’ Compensation Appeals Board (Board) denied City’s petition for reconsideration for the reasons stated in the WCJ’s report and recommendation, which it adopted and incorporated.
In the “stipulations” portion of his minutes of hearing, the WCJ noted that a life pension is payable for a permanent disability rating of 81 percent (Lab. Code, § 4659, subd. (a)), but his actual award does not include a life pension.
City filed a timely petition for writ of review contending that the WCJ’s award impermissibly applied Dykes retroactively to apportionment between Baptista’s 1988 and 1997 awards in violation of Labor Code section 5804 (no rescission, alteration or amendment of award after five years from date of injury), and also that Dykes was wrongly decided because the apportionment formula adopted in Fuentes v. Workers’ Comp. Appeals Bd. (1976) 16 Cal.3d 1 had not been superseded by the comprehensive reform of workers’ compensation law in 2004.
We deferred consideration of City’s petition pending a decision from the California Supreme Court, which had granted review in two consolidated cases raising the same apportionment issue. After the court issued its opinion in Brodie v. Workers’ Comp. Appeals Bd. (2007) 40 Cal.4th 1313 (Brodie), disapproving Dykes (id. at p. 1332) and holding that “the Fuentes formula remains the correct one to apply in apportioning compensation between causes of disability” (id. at p. 1317), we granted City’s petition, issued a writ of review, and requested supplemental briefing on the effect of Brodie on this case. In light of the parties’ agreement that Brodie controls this case, we notified them that a formal return would not be required and that, absent opposition, the matter would be submitted without oral argument.
We now annul the Board’s order denying reconsideration and remand the matter to the Board with directions to grant reconsideration, reverse the WCJ’s order, and recalculate the amount of Baptista’s permanent disability benefits in accordance with Brodie.
We concur: Haerle, J., Richman, J.