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A Vision of Apportionment

In a decision issued on March 5, 2020, the Workers’ Compensation Appeals Board panel determined that a conclusive presumption of permanent total disability due to blindness does not preclude apportionment. Fraire v. California Department of Corrections and Rehabilitation/SCIF  2020 Cal.Wrk.Comp. P.D. LEXIS.

The case involves a woman who lost vision in both eyes such that she is conclusively presumed to be totally disabled per Labor Code Section 4662(a)(1). She suffered three specific injuries over the course of seven years. The Workers’ Compensation Judge awarded her two separate permanent total disability awards with the understanding and interpretation that total disabilities per LC 4662(a) are not apportionable.

Labor Code Section 4662(a) does not address whether the totality of permanent disability can be apportioned. The WCAB stated that the section should be interpreted in a holistic approach with the objective of harmony with other code sections. As such, the Panel determined that the section refers to the totality of the character of the disability, not the totality of causation of or liability for that disability. As such, apportionment can and should apply.

This is in direct opposition to the ruling in Kaiser v. WCAB (Dragomir-Tremoreux) (2006) 71 Cal. Comp. Cases 538, where the WCAB panel held that if a conclusive presumption of permanent disability applies per section 4662(b), then no apportionment of any kind applies.

There were four Agreed Medical Examiners and the AME in ophthalmology deferred to the judgement of the AME in internal medicine when determining apportionment. The AME in internal medicine determined apportionment of 60% industrial and 40% nonindustrial.

The case has been remanded back to the trial level with the indication that the applicant’s loss of sight was apportionable per the AME in internal medicine, to whose judgment the AME in ophthalmology deferred.

By Leonie E. Milstein, Esq., Los Angeles Office, April 2020