Appeal Dismissed In Ilic As Case Settles, Leaving Unanswered Apportionment Issues For Linked Old and New Injuries
March 15, 2011
The Third District Court of Appeal announced on March 14, 2011, dismissal of the appeal filed by defendant employer in Sedgwick Claims Management Services for Stanford Hospital and Clinics v. WCAB (Ilic), No. C065610 because the parties had settled the case. The court had granted review on October 4, 2010 and in late February set the matter for oral argument in Sacramento on March 21, 2011.
The case involved several of the front line issues now confronting the comp system, including apportionment between old and new schedule injuries when an applicant had received an award for a 1992 work injury and subsequently suffered a further industrial injury in October 2004, as well as what constituted legitimate rebuttal to the Diminished Future Earnings Capacity (DFEC) portion of the 2005 Schedule for Rating Permanent Disabilities (PDRS). The trial judge had refused to apportion any disability to the prior 1992 award, holding that the defendant had not met its burden of showing overlap of disability as required by Kopping v. WCAB (2006) 142 CA4th 1099, 34 CWCR 251, 71 CCC 1229. A Board panel affirmed the trial court decision other than to defer calculation of applicant's life pension, awaiting clarification of that issue in Duncan v. WCAB (XYZZX SJO2) (2009) 179 CA4th 1009, 37 CWCR 269, 74 CCC 1427, currently before the Supreme Court.
The issue of how (or whether) the defendants can prove overlap of an old schedule award against a new schedule injury particularly has not been addressed by any court. On October 13, 2010, the California Supreme Court denied a defense petition for review in Contra Costa County Fire Protection District v. WCAB (Minvielle), No. S185175, following the First District Court Appeal, Division 3 (No. A 127536), having denied defendant's petition for a writ of review, in a case which squarely dealt with the old schedule/new schedule apportionment problem.
There is no doubt that this issue will not go away of its own accord. As the California Workers' Compensation Reporter noted when the Supreme Court denied review in Minvielle, having to follow the Board panel's decision to disallow any apportionment under section 4664 for a PD award under the 1997 PDRS, appears to: "(1) make it virtually impossible to prove overlap between injuries to the same body part rated under different schedules when an award had issued in the earlier case, and (2) eviscerate section 4664 in a very substantial number of cases (see 38 CWCR 263)."
By: Barry Lesch, Oakland
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