Opinion
NOT TO BE PUBLISHED
Proceeding to review a decision of the Workers' Compensation Appeals Board Nos. GRO 27680, GRO 28600.
James P. Harvey for Petitioner.
William A. Herreras for California Applicants' Attorneys Association as Amicus Curiae on behalf of Petitioner.
No appearance for Respondent Workers' Compensation Appeals Board.
Hanna, Brophy, MacLean, McAleer & Jensen and Donald L. Powelson for Respondent California Polytechnic University.
COFFEE, J.
Dr. James Vilkitis sustained cumulative trauma (CT) to his lower back and right knee between 1980 and March 28, 2000, and a specific injury to his right knee on March 28, 2000, while working as a professor for respondent, California Polytechnic University San Luis Obispo (Cal Poly). He filed separate applications to obtain workers' compensation for each of these injuries. (GRO 27680 and GRO 28600.) After apportionment, the workers' compensation judge (WCJ) determined that his specific injury caused 62 percent permanent disability (PD), and his CT caused 14 percent PD. The WCJ issued two separate awards for these distinct injuries.
In his petition for reconsideration, Dr. Vilkitis contended that the Workers' Compensation Appeals Board (Board) should have combined the separate PD ratings and issued a single, combined award of 71 percent pursuant to Wilkinson v. Workers' Comp. Appeals Bd. (1977) 19 Cal.3d 491, 497 (Wilkinson). Dr. Vilkitis would receive $68,057.50 if the awards are rated separately, but $100,165 plus a life pension if they are rated together. The Board adopted the WCJ's recommendation and denied his petition to combine the awards.
This petition ensued. After we denied his petition, Dr. Vilkitis petitioned our Supreme Court for review. Our high court granted the petition and directed us to vacate our denial, issue a writ of review and hear the matter. We have done so. After hearing the case, we again affirm the Board's decision. (Gray v. Superior Court (2002) 95 Cal.App.4th 322, 325, fn. 7.)
FACTS and PROCEDURAL HISTORY
From 1980 through March 28, 2000, Dr. Vilkitis sustained CT to his lower back and right knee while doing field work as a professor for respondent, Cal Poly. On March 28, 2000, he sustained a specific industrial injury to his right knee while doing the same work for the school. Dr. Vilkitis filed separate applications for workers' compensation benefits for each of these injuries. (GRO 28600 and GRO 27680, respectively.)
Dr. Timothy J. Perrin, the qualified medical examiner (QME) for petitioner, separately evaluated and apportioned these injuries for cause. Dr. Perrin concluded that all of his knee disability, and at least 75 percent of his lower back disability, were caused by the specific injury he suffered on March 28, 2000. Dr. Perrin apportioned 25 percent of his lower back disability to the CT he sustained between 1980 and March 28, 2000. Respondent's QME, Dr. Schwartz, concluded that petitioner's lower back problems predated his employment with Cal Poly.
The WCJ found Dr. Perrin's opinions more persuasive than those of Dr. Schwartz. After adjustments for Dr. Vilkitis's age and occupation, the WCJ determined that his specific injury resulted in a 62 percent PD rating. The court found that his CT resulted in a separate, 14 percent PD rating.
Dr. Vilkitis sought reconsideration. He contended that a single, combined PD rating should have been issued for these injuries pursuant to Wilkinson. The WCJ recommended that his petition for reconsideration be denied because the bases for the decision in Wilkinson had been superseded by the repeal of Labor Code section 4750 and the enactment of Senate Bill No. 899 (2003-2004 Reg. Sess.) (SB 899). The Board adopted the court's recommendation, and denied his petition for reconsideration. This petition for review ensued.
A prior petition for reconsideration had been granted regarding the initial findings and awards in order to clarify the record. The parties resubmitted the case twice for decision, and supplemental medical reports were proffered. The final apportioned ratings for the two injuries were made pursuant to Dr. Perrin's opinions.
All statutory references are to the Labor Code unless otherwise stated.
After hearing the matter on calendar, we conclude that current law precludes the merger of PD ratings petitioner seeks. Accordingly, we affirm the Board's decision.
DISCUSSION
The issue presented here is whether the Board erred by issuing two separate PD awards for Dr. Vilkitis's injuries rather than combining them into one award. Petitioner argues that his awards should have been combined or "merged" pursuant to Wilkinson. We disagree. The passage of omnibus legislation in 2004 supplanted former workers' compensation law, and completely undermined the bases for merging awards that were discussed in Wilkinson. (SB 899.) Although we give great weight to the views of the Board on legal issues within its purview, we must independently interpret workers' compensation statutes. (Benson v. Workers' Comp. Appeals Bd. (2009) 170 Cal.App.4th 1535, 1542-1543 (Benson).) We do so according to the usual rules of statutory construction.
PD payment amounts are calculated in several steps. First, a physician evaluates the applicant and estimates PD as a percentage of relative disability. (Brodie v. Workers' Comp. Appeals Bd. (2007) 40 Cal.4th 1313, 1320 (Brodie).) That PD percentage is then converted into an award based on a rating table. (Ibid.) Before April 1972, the rating table was linear. For example, a worker who suffered 10 percent PD would receive 40 weeks of benefits; one who suffered 90 percent PD would receive nine times that amount, or 360 weeks of benefits. (See id. at pp. 1320-1321.) The actual amount of benefits one receives depends upon one's age, occupation and earnings before being disabled. To determine the total amount owed, one must multiply the number of weeks of disability times the weekly disability allowance that corresponds to the above factors.
As of April 1972, the Legislature amended the rating table, creating a sliding scale of benefits to compensate more generously those with more severe disabilities. (Brodie, supra, 40 Cal.4th at pp. 1320-1321.) Under the new table, benefits for more serious disabilities increased exponentially. A worker with a 10 percent disability would receive about three weeks of benefits for each percent of disability (i.e., an award of 30.25 weeks of benefits). But, a worker with a 90 percent disability would obtain about six weeks of benefits for each percent of disability (i.e., an award of 541.25 weeks of benefits). Subsequent amendments to the disability tables created an even greater disparity in awards for severe disability ratings. (Id. at p. 1321 & fn. 5; Benson, supra, 170 Cal.App.4th at pp. 1541-1542.)
Consequently, combining or merging PD awards could increase benefit payments dramatically. (Brodie, supra, 40 Cal.4th at pp. 1321-1322.) For example, two single awards of 31 percent would not be as valuable as one award of 70 percent. (Benson, supra, 170 Cal.App.4th at pp. 1540, 1542 [two awards of 31 percent each would be worth $49,210 to Benson; combining those awards would be worth $67,016.25 to her].)
It also matters how one calculates PD awards. Brodie held that SB 899 did not suggest, much less require, a change in the formula that had initially been devised for this purpose in Fuentes v. Workers' Comp. Appeals Bd. (1976) 16 Cal.3d 1. (Brodie, supra, 40 Cal.4th at pp. 1322, 1324-1325.) But, the issue of how to calculate such awards is not before us today. (See Benson, supra, 170 Cal.App.4th at p. 1553, review denied Apr. 29, 2009, S171408.) The issue before us is whether the Board may combine separate awards.
Wilkinson stated, "whenever a worker, while working for the same employer, sustains successive injuries to the same part of his body and these injuries become permanent at the same time, the worker is entitled to an award based on the combined disability." (Wilkinson, supra, 19 Cal.3d at p. 494 [re: two successive injuries to his knees becoming permanent and stationary (P&S) at same time].) Under Wilkinson, and former sections 4663, 4750 and 4750.5, additional compensation was permitted if a prior injury aggravated (or "lit up") a current injury. (See Brodie, supra, 40 Cal.4th at p. 1326; Benson, supra, 170 Cal.App.4th at p. 1545 [discussing former law].) Before SB 899, greater compensation could also be awarded if the worker could show that before suffering the current injury, he or she had rehabilitated a prior disability. (See Brodie, supra, at pp. 1326-1327 [reversing this rule as inconsistent with enactment of SB 899; esp. §§ 4663 & 4664, and the repeal of § 4750]; accord, Benson, supra, at pp. 1545, 1557.) Under SB 899, unlike Wilkinson, prior disabilities are presumed to still exist, and must be discounted for the purpose of apportionment. (Benson, supra, at p. 1550.) Accordingly, awards for previous injuries may not be combined with the current one.
Before SB 899, the rule was that apportionment was concerned with the severity of the disability itself, however caused, and not its etiology. (Benson, supra, 170 Cal.App.4th at pp. 1545, 1557 citing cases.) Wilkinson permitted merger of PD benefits for separate injuries, relying on former sections 4750 and 4663. By passing SB 899, the Legislature repealed section 4750, replaced section 4663, and added section 4664, effective April 19, 2004. So, even though SB 899 did not expressly abrogate Wilkinson, its provisions are completely antithetical to it. (Brodie, supra, 40 Cal.4th at pp. 1326-1328, 1332; Benson, supra, at p. 1560.)
Former section 4750 read, "[a]n 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.
Section 4663 provides, in pertinent part, that "(a) Apportionment of permanent disability shall be based on causation. [¶] (b) Any physician who prepares a report addressing the issue of permanent disability due to a claimed industrial injury shall in that report address the issue of causation of the permanent disability. [¶] (c)... the report must include an apportionment determination. A physician shall make 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.... [¶] (d) An employee who claims an industrial injury shall, upon request, disclose all previous permanent disabilities or physical impairments."
Section 4664 provides, in pertinent part, "(a) The employer shall only be liable for the percentage of permanent disability directly caused by the injury arising out of and occurring in the course of employment. [¶] (b) If the applicant has received a prior award of permanent disability, it shall be conclusively presumed that the prior permanent disability exists at the time of any subsequent industrial injury.... [¶] (c)(1) The accumulation of all permanent disability awards issued with respect to any one region of the body in favor of one individual employee shall not exceed 100 percent over the employee's lifetime unless the employee's injury or illness is conclusively presumed to be total.... [¶] (2) Nothing in this section shall be construed to permit the permanent disability rating for each individual injury sustained by an employee arising from the same industrial accident, when added together, from exceeding 100 percent."
Thus, current sections 4663 and 4664 require physicians to consider each industrial injury sustained, and apportion the injured worker's disability for cause. (See esp., § 4663, subd. (c); Benson, supra, 170 Cal.App.4th at pp. 1542, 1544, 1549, 1550, 1552, 1553-1554, 1558, 1560.) Physicians must parcel out the direct cause of disability, discount past injuries and any other causes, and apportion PD for cause. (See Brodie, supra, 40 Cal.4th at p. 1328; Benson, supra, at pp. 1548-1550, 1552-1553.) Each PD apportionment thus segregates and discounts all other factors, whether industrial or otherwise, including all other injuries, diseases, and disabilities. (Brodie, supra, at pp. 1327-1328; Benson, supra, at p. 1548.) Combining PD percentages for different injuries, even if they happen to become P&S at the same time, is no longer permitted except when physicians cannot parcel out the causation of disability. (Benson, supra, at pp. 1541, fn. 3, 1552-1553, 1559-1560; SB 899, § 49; §§ 4663, 4664, 5303.) Thus, SB 899 directly conflicts with the merger doctrine discussed in Wilkinson. (Brodie, supra, at pp. 1326-1328, esp. p. 1327; Benson, supra, at pp. 1550, 1552, 1560.)
Note that this case does not present the precise issue raised in Brodie, which was the method of calculating apportioned awards. This case concerns whether to apportion awards for distinct injuries under SB 899, not the appropriate formula for calculating those awards. (See Benson, supra, 170 Cal.App.4th at p. 1553.) In Brodie, our high court took, as a given, that some but not all of the current level of PD sustained by the individuals involved was properly apportioned to the most recent industrial injury. The question presented in Brodie was how should compensation for the properly apportioned PD be calculated? (See Brodie, supra, 40 Cal.4th at p. 1320.)
The required segregation of each disability by apportionment for cause comports with the reason SB 899 was enacted - to decrease the cost of workers' compensation to employers by ensuring that they pay only for the particular disability caused by the particular, current injury sustained during the employment. Indeed, SB 899 states that it was passed as an urgency measure "'... to provide relief to the state from the effects of the current workers' compensation crisis at the earliest possible time ....'" (See Benson, supra, 170 Cal.App.4th at pp. 1544, 1554, quoting Stats. 2004, ch. 34, § 49, italics added; Brodie, supra, 40 Cal.4th at p. 1329.)
The Board may not rule on the constitutionality of statutes, but its opinion on legal issues within its domain is entitled to great weight and we should defer to it in the absence of clear error. (See Brodie, supra, 40 Cal.4th at p. 1331; Honeywell v. Workers' Comp. Appeals Bd. (2005) 35 Cal.4th 24, 34; Benson, supra, 170 Cal.App.4th at p. 1558.) In rejecting the use of Wilkinson here, the Board concluded that the WCJ correctly applied the en banc opinion in Benson, supra, 170 Cal.App.4th 1535, review denied. This conclusion is consistent with SB 899 and our Supreme Court's opinion in Brodie, supra, at pages 1326-1328. In our view, the Board did not err by rejecting the argument of Dr. Vilkitis. As in Benson, Dr. Vilkitis sustained both a specific industrial injury and an industrial CT. (See Benson, supra, at p. 1540.) As in Benson, we conclude that awards for the separate injuries may not be combined into a single, merged award. (Benson, supra, at p. 1560.)
Section 5303 states, in pertinent part, "[t]here is but one cause of action for each injury... no injury, whether specific or cumulative, shall, for any purpose whatsoever, merge into or form a part of another injury; nor shall any award based on a cumulative injury include disability caused by any specific injury... causing or contributing to the existing disability...." The passage of SB 899 is consistent with the antimerger doctrine expressed in section 5303, and inconsistent with Wilkinson. (Benson, supra, 170 Cal.App.4th at pp. 1556, 1559-1560.)
Accordingly, the Board's decision is affirmed.
We concur: YEGAN, Acting P.J., PERREN, J.
"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."