From Casetext: Smarter Legal Research

Mendosa v. Workers Compensation Appeals Board

Court of Appeals of California, Fifth District.
Nov 14, 2003
No. F043477 (Cal. Ct. App. Nov. 14, 2003)

Opinion

F043477.

11-14-2003

RAYMOND MENDOSA, Petitioner, v. WORKERS COMPENSATION APPEALS BOARD, TURLOCK SCAVENGER COMPANY et al., Respondents.

William S. Morris, for Petitioner. Hanna, Brophy, MacLean, McAleer & Jensen and Sherry Newton, for Respondents Turlock Scavenger Company and TIG Insurance Company.


OPINION

THE COURT

Before Dibiaso, Acting P.J., Buckley, J., and Cornell, J.

Raymond Mendosa (Mendosa) petitions for a writ of review to determine the lawfulness of the decision of the Workers Compensation Appeals Board (WCAB) apportioning his disability award from a prior injury. (Lab. Code,[] § 5950; Cal. Rules of Court, rule 57.) We will deny the petition.

Further statutory references are to the Labor Code.

BACKGROUND

Mendosa worked as a mechanic for Turlock Scavenger Company (Scavenger) when he heard a pop in his back on May 23, 1996. He began experiencing low back pain radiating down his right leg and eventually became temporarily disabled for approximately seven weeks. After returning to work following surgery, he reduced his daily activities and permanently limited himself by not lifting more than 25 pounds. Between 1996 and 1999, Mendosa no longer worked on automobile brakes, tires, transmissions, and rear-ends because they required lifting heavy weight. He did not suffer any low back pain so long as he limited his activities. In April 2001, the parties settled Mendosas disability claim for $12,000.

Mendosa sustained a second work-related injury on January 25, 1999, when he fell onto a three-by-five foot piece of steel while trying to repair a conveyer belt. Several weeks later, he began experiencing pain from his hip down to his right foot. As the pain increased, Mendosa decreased his lifting capacity to 15 pounds and performed less bending and twisting.

The 1999 injury proceeded to hearing in June and September 2001. Following the recommendation from the Department of Industrial Relations disability rating specialist, the WCJ found Mendosa 15 percent permanently partially disabled. The rating specialist testified at hearing that he calculated Mendosas disability by subtracting the difference in work restrictions between the two injuries.

Mendosa petitioned for reconsideration contending the WCJ should not have apportioned his disability award. The WCAB disagreed and denied the petition.

DISCUSSION

Mendosa contends the WCAB improperly apportioned the award by subtracting a retroactive prophylactic work restriction related to the 1996 injury from his current level of disability. "Apportionment, in workers compensation terminology, means the separating out of the part or parts of a disability or condition that are the result of an industrial injury from the part or parts of the disability or condition that are the result of other industrial or nonindustrial injuries, conditions, or diseases." (OBrien, California Workers Compensation Claims and Benefits (10th rev. ed. 1999) § 31.13, p. 783-1; see Ashley v. Workers Comp. Appeals Bd.(1995) 37 Cal.App.4th 320, 326.) "The question of apportionment is one of fact, and in making its determination, the board must rely on substantial evidence." (Pullman Kellogg v. Workers Comp. Appeals Bd.(1980) 26 Cal.3d 450, 454.) Thus, if the WCABs findings "`"are supported by inferences which may fairly be drawn from evidence even though the evidence is susceptible of opposing inferences, the reviewing court will not disturb the award."" (Judson Steel Corp. v. Workers Comp. Appeals Bd.(1978) 22 Cal.3d 658, 664; §§ 5952, 5953.)

Section 4750[] relieves an employer from the burden of compensating an injured worker for a preexisting permanent disability or physical impairment.[] An employer is liable only for that portion of a subsequent injury that the employee would have sustained absent the prior injury. "For example, an employee who enters the work force with impaired vision in one eye, and who later becomes blind in the other eye due to an industrial injury, is entitled to a permanent disability award reflecting only the loss of sight due to the industrial injury as if there were no prior impairment of vision." (1 Hanna, California Law of Employee Injuries and Workers Compensation (rev. 2d ed. 2001) § 8.05[1].) To support apportionment under section 4750, a preexisting disability must have actually been labor disabling as evidenced by prior complaints to coworkers or physicians, treatment to the same part of the body, or measurable preexisting loss of functioning. (King v. Workers Comp. Appeals Bd. (1991) 231 Cal.App.3d 1640, 1646.) In such cases, the WCAB subtracts the preexisting level of permanent disability from the injured workers current total disability before calculating the employers financial liability. (Fuentes v. Workers Comp. Appeals Bd. (1976) 16 Cal.3d 1, 5-6.)

Section 4750 provides: "An employee who is suffering from a previous permanent disability or physical impairment and sustains permanent injury thereafter shall not receive from the employer compensation for the later injury in excess of the compensation allowed for such injury when considered by itself and not in conjunction with or in relation to the previous disability or impairment. [¶] The employer shall not be liable for compensation to such an employee for the combined disability, but only for that portion due to the later injury as though no prior disability or impairment had existed."

As we explained in Fresno Unified School District v. Workers Comp. Appeals Bd. (2000) 84 Cal.App.4th 1295, 1305, "Apportionment is addressed primarily in three separate sections of the Labor Code. Two sections, 4750 and 4663, apply to antecedent injuries. Section 4750 relieves an employer from the burden of compensating an injured worker for disability attributable to a preexisting permanent disability or physical impairment. Section 4663 does the same when an injured workers disability is partially attributable to a preexisting disease or condition. The third, section 4750.5, deals with subsequent injuries."

"A preexisting disability cannot be established by a `retroactive prophylactic work restriction on the preexisting condition placed on the injured after the subsequent industrial injury in absence of evidence to show that the worker was actually restricted in his work activity prior to the industrial injury. [Citations.] Where the injured was actually under a prophylactic restriction for a preexisting condition at the time of the industrial injury, apportionment to a preexisting disability is proper. It is only the retroactive application of a prophylactic restriction to an otherwise nonexistent previous disability that is prohibited." (Franklin v. Workers Comp. Appeals Bd. (1978) 79 Cal.App.3d 224, 238.)

Mendosa argues the record lacks substantial medical evidence to support the WCABs finding he restricted his work activities before suffering the 1999 injury. However, the WCAB expressly relied upon the October 9, 2000, agreed medical examination report of Dr. Michael A. Kasman, who described Mendosas prior injury and concluded that "Mendosa was precluded, to a [sic] some degree prophylactically, from lifting any greater than 25% of his preinjury lifting capacity, repetitive bending and twisting, prolonged sitting in a soft chair, and repetitive heavy/forceful pushing and pulling."

Mendosa notes there is no evidence that his former work restrictions were medically prescribed and suggests they were instead voluntary self-imposed limitations. Mendosa also argues this court should not reopen the record to permit the WCAB to make such a determination. We need not do so. Regardless of whether Mendosas former work restrictions were medically prescribed, they presented a genuine labor disabling disability. "[I]t is the actual disability at the time of the subsequent injury which governs." (Amico v. Workers Compensation Appeals Bd. (1974) 43 Cal.App.3d 592, 609.) Mendosa reported to Dr. Kasman that following the 1996 injury, "he limited himself permanently to no lifting more than 25 lbs." Between 1996 and 1999, Mendosa was unable to repair automobile brakes, tires, transmissions, and rear-ends because of his lack of strength. Mendosa also recalled that "he lost approximately half of his capacity for repetitive bending and twisting."

Mendosas own admissions, as reported by Dr. Kasman, constitute substantial evidence that he suffered from preexisting disability at the time of the 1999 injury. Despite Mendosas assertion to the contrary, the WCAB did not apply a prophylactic work restriction retroactively. Accordingly, the WCAB properly apportioned his disability award by subtracting Mendosas preexisting level of permanent disability from his level of disability following the 1999 injury.

DISPOSITION

The petition for writ of review is denied. This opinion is final forthwith as to this court.


Summaries of

Mendosa v. Workers Compensation Appeals Board

Court of Appeals of California, Fifth District.
Nov 14, 2003
No. F043477 (Cal. Ct. App. Nov. 14, 2003)
Case details for

Mendosa v. Workers Compensation Appeals Board

Case Details

Full title:RAYMOND MENDOSA, Petitioner, v. WORKERS COMPENSATION APPEALS BOARD…

Court:Court of Appeals of California, Fifth District.

Date published: Nov 14, 2003

Citations

No. F043477 (Cal. Ct. App. Nov. 14, 2003)