Opinion
NOT TO BE PUBLISHED
Proceeding to review a decision of the Workers' Compensation Appeals Board. Nos. GOL 88399, 88400, 89294
Stockwell, Harris, Widom, Woolverton & Muehl and James C. Shipley for Petitioner.
Hourigan, Holzman & Sprague and David T. Holzman for Respondent Salter.
No appearance for Respondent Workers' Compensation Appeals Board.
GILBERT, P.J.
Over a period of 16 years, Jobe Salter sustained numerous industrial injuries to his shoulders, elbows, knees and back while working for petitioner, Browning-Ferris Industries (BFI). He filed workers' compensation claims for those injuries. In 1994, the parties stipulated that he had sustained 60 percent permanent disability (PD) from industrial injuries to his back, left shoulder and left knee. BFI paid for 96 percent of this award.
Salter continued to do similar work for BFI for about eight more years. He presented two new claims for industrial injuries to his shoulders, elbows, knees and back, but did not seek to reopen the prior cases.
After trial in February 2005, the workers' compensation judge (WCJ) found that Salter had become permanent and stationary and 100 percent disabled, as stipulated by the parties. Based on these stipulations, and the opinions of both doctors, the WCJ found that Salter had sustained one cumulative trauma to his back while working for BFI, and found no basis for apportionment. The WCJ gave monetary credit to BFI for its prior PD payment instead of subtracting the 60 percent level of PD found in 1994 from the 100 percent level found in 2004.
On reconsideration, the Workers' Compensation Appeals Board (Board) rescinded the WCJ's February 2005 findings and award and remanded the matter for further proceedings and a new decision.
Relying on E & J Gallo Winery v. Workers' Compensation Appeals Bd. (2005) 134 Cal.App.4th 1536, the WCJ reissued its original decision. The WCJ ruled it was appropriate to deduct the monetary value of the prior award of 60 percent PD from the more recent award of 100 percent PD. The WCJ reasoned that Salter's back injuries occurred as the result of continuous trauma he suffered throughout his career with the company. Board denied BFI's petition for reconsideration.
BFI filed a petition for review with this court. We denied the petition, and BFI petitioned our Supreme Court for review. The Supreme Court transferred the matter back to us with directions to vacate our decision and to reconsider the cause in light of Brodie v. Workers' Comp. Appeals Bd. (2007) 40 Cal.4th 1313 (Brodie). (Cal. Rules of Court, rule 8.528(d).)
We have done so and conclude that the percentage of a previous award of PD must be subtracted from a newer award of PD. Subtracting the monetary value of prior awards does not comport with Labor Code section 4664 as construed by our Supreme Court in Brodie. Accordingly, we conclude that the 60 percent PD award of 1994 to Salter must be subtracted from the 100 percent PD award provided in May 2006.
All statutory references are to the Labor Code unless otherwise stated.
DISCUSSION
Brodie considered the question presented here. In what manner should compensation for a current level of PD be reduced when payments have been made for a previous industrial injury? (Brodie, supra, 40 Cal.4th at pp. 1317, 1320; Sen. Bill No. 899 (2003-2004 Reg. Sess.).) Before Brodie, there was a split of authority among the Courts of Appeal. (Brodie, supra, at pp. 1318-1319.) The Brodie court concluded that the formula used in Fuentes v. Workers' Comp. Appeals Bd. (1976) 16 Cal.3d 1, still applies to apportioning compensation of PD. (Brodie, supra, at p. 1317.) The Fuentes formula ensures that employers are liable only for that portion of the worker's PD attributable to the current industrial injury. (Brodie, supra, at p. 1321.)
As the Brodie court explained, PD payments are calculated by expressing their degree as a percentage and then converting that percentage to an award based on a disability payment table. (See Brodie, supra, 40 Cal.4th at p. 1320.) Until April 1972, the table was straightforward and linear. A worker would receive four weeks disability for every percentage point of disability. (Id., at pp. 1320-1321.) Thus, if a worker sustained 10 points of disability, he or she would receive 40 weeks of disability payments. If a worker sustained 90 points of disability, he or she would get 360 weeks of such payments.
If a worker previously suffered 10 points of disability, and later sustains another injury which results in a total PD rating of 90 percent (i.e., the new injury contributes another 80 percent to the PD), the employer would only be responsible to pay for the difference between the new 90 percent rating and the old 10 percent rating, or 80 percent. Under the old table, it would not matter whether one calculated the amount based on the difference in percentages or the difference in the dollar amount it represented.
But, in 1971, the Legislature amended the law to create a sliding scale of benefits that more generously compensated workers who sustained more severe disabilities. (Brodie, supra, 40 Cal.4th at p. 1321.) Under the new table, one would arrive at different amounts an employer owed for successive injuries depending on whether one used the percentage difference between the disabilities caused by each or the dollar amount they represented. That is because the table was no longer linear, but deviated upwards depending on the severity of PD. (Id., at pp. 1321-1322.) The amount of money a worker would receive depended on whether one subtracted the percentage difference between the two PD awards and consulted the table, or subtracted the dollar amount of the old rating from the dollar amount of the new rating. (Ibid.)
In Fuentes, our Supreme Court concluded that the proper way to calculate the employer's liability for a new injury causing increased PD is to subtract the percentage of PD suffered as a result of the old injury from that suffered by the sum of both injuries, before consulting the table for the dollar amount of the award. (Brodie, supra, 40 Cal.4th at p. 1322.) This formula, dubbed formula A, had the salutary benefit of treating workers the same regardless of whether previous disabilities were industrial or non-industrial. (See discussion in Brodie, supra, at pp. 1322-1323.) Formula A also encouraged employers to "'. . . hire the handicapped.'" (Ibid.) To develop this formula, Fuentes relied on former sections 4663 and 4750.
In 2004 the Legislature repealed sections 4663 and 4750 and enacted Senate Bill No. 899. (Sen. Bill No. 899; Brodie, supra, 40 Cal.4th at p. 1323.) Senate Bill No. 899 revised section 4663 and created section 4664, both of which concern apportionment. (Ibid.) Section 4663 requires physicians to consider apportionment of PD by determining the cause of disability. (Brodie, supra, at pp. 1324-1325)
Former section 4663 forbid apportionment by causation. It allowed apportionment if the industrial disease lit up or was aggravated by a nonindustrial injury and permitted increased awards based on the employee's evidence of rehabilitation of an industrial injury for which an award had already been made. (Brodie, supra, 40 Cal.4th at pp. 1326-1327.) The new approach requires consideration of past injuries, not disregard of them. (Id., at p. 1328.)
Section 4664 confines the employer's liability to the percentage of disability which is directly caused by the current industrial injury. (Brodie, supra, 40 Cal.4th at p. 1325.) Neither of these provisions specified how disability percentages should be converted into an actual award under section 4658. (Id., at pp. 1325, 1329.) Various Courts of Appeal have reached different conclusions on how apportionment should be calculated. Brodie concluded that formula A, the one approved in Fuentes and discussed above, remains the law.
The Brodie court came to this conclusion in large part because there is nothing in Senate Bill No. 899 that expressly or impliedly suggests otherwise. Moreover, the legislative history shows an intent to charge employers only with that percentage of PD directly caused by the current industrial injury. (Brodie, supra, 40 Cal.4th at pp. 1331-1332.)
The Brodie rationale we apply here. Salter had been compensated for 60 percent PD in 1994. He is now 100 percent disabled because of new industrial injuries. We conclude the employer must pay the percentage difference, 40 percent. The table provides the dollar amount for that rating.
The decision of the Board is annulled and the matter remanded with
directions to enter a new and different award consistent with this opinion.
We concur: YEGAN, J. PERREN, J.