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Defer Calculation of PD After Apportionment - Significant Panel Decision  

January 04, 2007

W.C.A.B. Issues Significant Panel Opinion* On Handling Apportionment


The W.C.A.B. has published a Significant Panel Decision addressing the handling of pending cases where the calculation of Permanent Disability after Apportionment is an issue and also addressing the issue of attorney fees in such claims.


The decision of the W.C.A.B. is consistent with the Memorandum by Chairman Miller that issued several months ago recommending that WCJ defer the issue of calculation of the amount of PD to be awarded pending clarification of the Supreme Court in Welcher v W.C.A.B. (and other cases).  The decision review the current state of the law noting that there exists conflicting law on how to handle such claims because of the published decisions in Dykes/Nabors and the recent 6th District decision in Davis v W.C.A.B. .  The Panel notes that there is a high probability that Davis will also be appealed, with an equally high probability that the appeal will be granted.  In the even of such a grant, there conflict in the decisional authority would not longer exist but the clarity in the law would still be far from certain.  The decision therefore determines that to avoid continual litigation over the issue, with lengthy appeals to preserve jurisdiction over the issue, the policy of deferring the issue is appropriate.


"First, given the Supreme Court's grants in Brodie and Welcher, and given the very wide discrepancies in the potential outcomes in individual cases depending on which "formula" the Supreme Court ultimately adopts, we expect relatively few settlements; therefore, an unusually high number of cases will be litigated.

Second, if we were to consistently decide these litigated cases in accordance with Dykes/Nabors, in accordance with Davis/Torres, or in accordance with both lines of authority (i.e., applying Dykes/Nabors where there have been successive industrial injuries with the same employer and applying Davis/Torres where there have been successive industrial injuries with different employers), then the WCAB and the appellate courts likely would be flooded, respectively, with petitions for reconsideration and petitions for writ of review - if for no other reason than to enable the parties to preserve their rights pending the Supreme Court's decision(s) in Brodie and Welcher.

Third, even if some cases became final because the parties did not seek reconsideration or appellate review, the Supreme Court's decision(s) in Brodie and Welcher might be inconsistent with Dykes/Nabors or Davis/Torres or both.  If the Supreme Court's decision(s) are not applied prospectively only - then, with respect to cases that are still within five years of the applicant's date of injury (Lab. Code, § 5804), many parties might file petitions alleging "good cause" to reopen based on a change in the law. (Lab. Code, § 5803.)  This could create "a landslide of reopenings of previously adjudicated cases" (Atlantic Richfield Co. v. Workers' Comp. Appeals Bd. (Arvizu) (1982) 31 Cal.3d 715, 728 [47 Cal.Comp.Cases 500]) that could strain the workers' compensation adjudication system and cause additional delays in the final resolution of these cases.

Finally, if the Supreme Court's decision(s) in Brodie and Welcher reach a result inconsistent with Dykes/Nabors, then in any cases in which Dykes/Nabors had been applied - but the defendants either timely sought appellate review or successfully petitioned to reopen - there could be issues of restitution or credit that, again, could cause delays in the final resolution of these cases and - if allowed - could significantly disrupt the applicants' benefits or have other serious adverse consequences for them.

Accordingly, deferring any finding regarding the calculation of the permanent disability indemnity appears to be both fair and in the best interests of applicants, defendants, and the workers' compensation adjudication system.  Indeed, it appears that the Supreme Court has adopted a policy of deferring the issue of the calculation of permanent disability after apportionment pending its decision in Welcher/Brodie. (See Browning-Ferris Industries v. Workers' Comp. Appeals Bd. (Salter), review granted December 20, 2006, S147883 [Supreme Court defers further action and "holds" case pending its decision in Welcher/Brodie].)"


Similarly to the memorandum By Commission Miller the Panel makes it clear that the ONLY issue that is to be deferred is the calculation of the value of PD after apportionment, not the actual finding on PD and/or apportionment:


"We emphasize, however, that we are deferring a finding solely on the issue of the calculation of the permanent disability indemnity (and the related issue of attorney's fees).  Any findings regarding the overall level of permanent disability or the percentage of permanent disability to be apportioned under section 4664 (or, for any section 4663 apportionment, the approximate percentages of industrial and non-industrial causation) are not being deferred.  The parties should treat these findings as "final" for purposes of reconsideration, appellate review, and reopening."


Defendants are still obligated to continue payment of those PD benefits that are undisputed in the case based on the minimum liability that is determined by the W.C.A.B. On the issue of attorney fees the Panel also holds that deferral of the issue is appropriate but that an "interim fee" may be awarded at the request of the applicant attorney as long as due process is granted the parties to object or comment on the fees:


"Upon request by applicant's counsel, an interim attorney's fee may be allowed by the WCJ - either from accrued sums, from sums withheld for fee purposes, or by way of commutation if deemed appropriate - after allowing a reasonable time for, and considering, any objections thereto."


This decision provides decisional authority for WCJ's to act in accordance with the memorandum issues by the W.C.A.B. chairman that is consistent with the Panel opinion.  Undoubtedly the hope is to avoid a flood of appeals on the calculation issue by simply deferring cases for final decision on that issue alone.  The Panel decision notes that the Supreme Court has even taken this step in one of its own grants for hearing in Salter v W.C.A.B. where the court granted the applicant's Petition for Hearing and issued an order putting the case on hold pending ­Welcher et al. In doing so the Court does not continue to extend the time for submission of the issue in Welcher by allowing yet another set of briefs from the parties to that case.  


* The W.C.A.B. website identifies Significant Panel Decision as:

"Cases that are identified for dissemination by the WCAB in order to address new or recurring issues of importance to the workers' compensation community. Significant Panel Decisions have been reviewed by each of the commissioners, who agree that the decision merits general dissemination."

Richard M. Jacobsmeyer

Certified Specialist, Workers' Compensation Law

The State Bar of California Board of Legal Specialization



475 – 14th Street, Suite 850

Oakland, CA 94612

Tel: (510) 645-7172

Fax: (866) 563-0092

Certified Specialist, Workers' Compensation Law The State Bar of California Board of Legal Specialization

Shaw, Jacobsmeyer, Crain & Claffey, PC
1600 Riviera Avenue, Suite 305, Walnut Creek, CA 94596 Phone:(510) 645-7172 Fax (866) 563-0092

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