Employment Law Client Alert: Employer Wins Apportionment Battle

On August 9, 2013, the California Court of Appeal published its opinion in Acme Steel v. Workers’ Compensation Appeals Board and Michael Borman (originally decided in July 2013). This opinion provides employers and workers’ compensation insurance carriers with an additional weapon in the ongoing battle to maintain the cost saving from the 2004 legislation, SB 899.

The Applicant, Michael Borman, claimed injury to his hearing as a result of a single cumulative trauma over the period of his employment as a steel worker. In the litigation the parties utilized an Agreed Medical Evaluator (“AME”) who was of the opinion that even though the injured worker exhibited a total loss of hearing, 60% of this loss was due to noise induced trauma, while 40% was due to “non-occupational factors, particularly cochlear degeneration.” When the AME received information that the Applicant was the recipient of an earlier award for hearing loss from exposure to a 1993 plant explosion, he concluded that his apportionment to “noise induced trauma” included the component of loss due to the explosion.

The Workers’ Compensation Judge (“WCJ”), in a decision affirmed by the WCAB, determined that there should be no apportionment of the hearing loss permanent disability, because there was no evidence of earnings lost due to that prior injury. The WCJ further found that without evidence of earning loss, there was no basis for apportionment of the permanent disability under the current method of calculating it.

The Court of Appeal reversed the Board and WCJ. In doing so the court noted that Labor Code sections 4663 and 4664, “changed the formal process of apportionment pursuant to which apportionment based on causation was prohibited, . . . and employees were granted wide latitude to disprove apportionment based on prior permanent disability awards by demonstrating that they had substantially rehabilitated the injury.” Thus, the Award ignored the evidence that Borman’s 100% loss of hearing could not be attributed solely to the current cumulative trauma, and “ignored” the clear mandate of Labor Code sections 4663 and 4664.

The Court also addressed the argument that in the absence of earnings loss there can be no apportionment to a prior injury. In its footnote 5, the Court explains, “[T]his contention confuses the fact of an injury and a finding of disability, ignores the 2004 Legislative mandate that an employer is only liable for that percentage of permanent disability directly caused by the current industrial injury . . . and, moreover, is foreclosed by the Benson court’s conclusion that apportionment is required for a prior injury regardless of whether the claimant received a prior award of permanent disability for the injury.”

The issue of apportionment in workers’ compensation remains one of the most common reasons for dispute and litigation. This decision provides the California community of employers with additional support for maintaining the benefits of SB 899.

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August 13, 2013