Supreme Court to Hear Apportionment Formula Issue

The Supreme Court has posted on its Website that the Petitions for Hearing in the Welcher cases and also Brodie v W.C.A.B. have all been granted for review.  The vote for review by the court was unanimous with all 7 of the Supreme Court Justices joining in the order.  The grant in these cases is certainly no surprise given the current state of the law on apportionment under both Labor Code $B!x(B 4663 & 4664.  While the California Applicant$B!G(Bs Attorney$B!G(Bs Association had also petitions for decertification of the Welcher cases, that would not have really ended the issue as far as the appellate courts were concerned.  It therefore looked lime a virtual certainty that the Supreme Court would have to hear this issue.

What this ruling does is to defer for a period of at least the next year and probably considerably longer, a final ruling on how to calculate apportionment under these two code sections.  In prior appellate decisions (Nabors and Dykes), the Appellate Courts had ruled in favor of the most beneficial methodology for applicants by ordering that the dollar value of prior awards be subtracted from the current award.  The Supreme Court had denied review in the Petitions for Hearing in those cases.  However in the consolidated Welcher cases, a different district had arrived at a contrary result holding that there was no expression of intent by the legislature to change the law in enacting the new apportionment sections. That court ordered subtraction of the percentage of disability, a methodology that strongly favors defendants.

Parties are going to have to decide in individual pending cases whether they wish to try and compromise the apportionment issue or wait for the final outcome of the Supreme Court$B!G(Bs decision which will, based on prior history, take well over a year to obtain.  Some cases where the stakes are very high (100% cases with prior overlapping awards)  may turn out to be very difficult to settle especially if one side or the other has decided that it already knows how the court will rule.  

It is anticipated that these cases will receive a great deal of attention from amicus counsel for various industry groups.  CAAA has already thrown its hat in the ring on the issue of depublication which has now been rejected by the court and will certainly be filing its amicus brief on the cases in chief.  

Richard M. Jacobsmeyer*