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Some say imitation is the highest form of flattery, but we know that’s just an effort to put a positive spin on the annoyance you feel when someone is ripping off your material, like say producing on-point case law out of a magical briefcase. So, you can imagine my irritation when I signed into my most recent Zoom colleague cocktail hour and saw my otherwise likeable colleague Mike Greenwell (“Gator,” to friends — a long story) trying to win an argument with his own version of the magic briefcase move.

Gator, an applicant’s attorney known to enjoy a friendly debate, was getting deep into the details of a case he had been litigating against noted defense attorney and our mutual pal Dennis Boyd (“Oil Can,” to friends — a longer story), who was also taking part in our cocktail hour.

Gator’s client, Bob Stanley, had worked for decades in the steam cleaning field — carpets, upholstery, floors, air ducts, and the like. Along the way he’d had his share of work injuries. Back in 2005 he’d injured his right knee, resulting in a Stipulated Award at 20% permanent disability (PD).

Later, in 2008, he filed a cumulative trauma claim for internal injuries (diabetes, hypertension, and gastroesophageal reflux disease (GERD)) and received a second award at 30% PD. In 2010 he’d had a real scare with an industrial heart attack. This case had resulted in a third stipulated award at 35% for coronary artery disease.

Bob had eventually been able to return to work after the heart attack, and had worked another ten years doing lighter duties as a supervisor. However, in 2020 some careless actions by a younger co-worker led to a calamitous worksite incident in which Bob was exposed to high heat and smoke, resulting in injuries to his skin and respiratory system. The qualified medical evaluator (QME) in internal medicine, Dr. Donald Zimmer, had evaluated Bob, and the report had been rated to 95% PD.

Gator and Oil Can were now trading theories on how much PD the applicant should receive for the 2020 injury. Their arguments revolved around Labor Code §4664, which provides in part:

(a) The employer shall only be liable for the percentage of permanent disability directly caused by the injury arising out of and occurring in the course of employment.

(b) If the applicant has received a prior award of permanent disability, it shall be conclusively presumed that the prior permanent disability exists at the time of any subsequent industrial injury. This presumption is a presumption affecting the burden of proof.

Oil Can’s point was that the statue required apportionment for Stanley’s prior awards. Gator was arguing that there should be no apportionment since Oil Can couldn’t prove that there was overlap between the body parts in prior awards and the body parts in the 2020 injury.

I chimed in at this point to state that Gator was right to say that proving overlap is an important question. This has been discussed by the California Court of Appeal in one of the leading cases on this topic, Ed Kopping v. WCAB (2006, 71 CCC 1229).1 The key point from Kopping is that the defendant is only entitled to apportionment under §4664(b) to the extent that it can establish overlap between the prior disabilities and the current disability.

Oil Can said he was willing to concede that overlap was required, as he was not seeking apportionment to the applicant’s old knee injury. However, he sought to reduce the current 95% PD attributed to internal injuries based on the applicant’s two prior awards for internal injuries. Oil Can wanted Gator to agree that the most recent injury should result in an award at 30% — 95% per QME Zimmer’s findings, less 65% for disability in the two prior internal injury awards (30% for diabetes, hypertension, GERD in 2008 and 35% for coronary artery disease in 2010).

The stakes in this debate were not insignificant. If Gator got his way, the 2020 injury at 95% without apportionment would result in an award for $241,642.50 plus a life pension subject to cost of living adjustment (COLA) increases. If Oil Can was right, an award at 30% would amount to $37,990 and no life pension.

It was at this point that Gator could no longer hold back his smirk. It was clear that he was up to something. Seemingly from nowhere, Gator suddenly produced a briefcase, and from the briefcase a set of coffee-stained and heavily annotated papers that he held up to the screen for us to see.

“Game over, guys,” he announced.

Gator sent us a copy of the case. It was the Workers’ Compensation Appeals Board (WCAB) panel decision in Robert Smith v. City of Berkeley (2020, 85 CCC 1054). In Smith, the applicant had a 2018 cumulative trauma injury involving hypertensive cardiovascular disease, which was rated to 57% PD. Like Gator’s client, the applicant in Smith had previously suffered an industrial heart attack which had resulted in an award for 37% PD.

The defendant in Smith had sought apportionment under Labor Code §4664, since both of the applicant’s injuries involved his heart. However, the workers’ compensation judge (WCJ) found that the defendant had failed to meet their burden to prove overlap between the two injuries. The defendant then petitioned for reconsideration. The WCAB agreed with the WCJ that the simple fact that both injuries involved the heart was not enough to establish overlap.

The WCAB explained that medical evidence was required to prove overlap, and in this case the medical evidence included a detailed explanation from the most recent QME indicating that the earlier heart attack involved coronary artery disease, which was unrelated to the later injury involving hypertensive cardiovascular disease. No apportionment was found, and the award for 57% was affirmed.

Oil Can was looking deeply concerned as he imagined his client’s reaction to the news that their exposure might be much higher than expected. For my part, I was miffed that Gator was stealing my act. This could not stand!

As Gator poured himself another drink, I made my move.

“I think you’ll find that Labor Code §4664 also includes subsection (c).”2 Which I then read to Gator and Oil Can.

(c)(1) The accumulation of all permanent disability awards issued with respect to any one region of the body in favor of one individual employee shall not exceed 100 percent over the employee’s lifetime unless the employee’s injury or illness is conclusively presumed to be total in character pursuant to Section 4662. As used in this section, the regions of the body are the following:

(A) Hearing. (B) Vision. (C) Mental and behavioral disorders. (D) The spine. (E) The upper extremities, including the shoulders. (F) The lower extremities, including the hip joints. (G) The head, face, cardiovascular system, respiratory system, and all other systems or regions of the body not listed in subparagraphs (A) to (F), inclusive.

(2) Nothing in this section shall be construed to permit the permanent disability rating for each individual injury sustained by an employee arising from the same industrial accident, when added together, from exceeding 100 percent.

Gator was not following. “So what?” he said.

Oil Can was cautiously optimistic. “This helps me how?”

The time had come for me to reclaim the title as true wielder of the magic briefcase. In a flash of prestidigitation, I did as Joe Truce3 taught us, and startled my companions by producing a copy of the WCAB’s panel decision in Gary Ross v. California Highway Patrol, (2020, 86 CCC 99).4

“Does this require a lot of math?” Gator grumbled.

Yes, loyal Home Bar patrons, if we liked math we wouldn’t be practicing law. But this one we can definitely handle. It is really just some addition and subtraction. Or is it addition by subtraction? Either way, you’ve been warned.

I explained to Gator and Oil Can that in Ross the applicant sustained a cumulative trauma injury with injuries to his heart, hypertension, atrial fibrillation and hemorrhoids, rated to 91% PD. The same applicant had previously sustained multiple prior work injuries which had been resolved by a series of stipulated awards. These prior awards included injuries to the digestive system, circulatory system, skin, nausea, irritable bowel syndrome, and gastrointestinal tract, with the prior PD for these body parts amounting to 59%.

Given this set of circumstances I asked Gator and Oil Can if the applicant’s new award should be for 91% if overlap could not be proven? Or should it be reduced based on a subset of the disabilities which were proven to overlap? They both looked a bit lost so I let them know that the WCAB decided that proving overlap under §4664(b) was not the real issue in Ross; instead, the applicant’s award would be limited by §4664(c).

I told Gator and Oil Can that the key concept of §4664(c) is that the sum of disability over an applicant’s lifetime can never exceed 100% for a given “region of the body.”

What is a “region of the body”? The regions defined in subsections (A) through (F) are relatively straight-forward. The wrinkle comes in §4664(c)(1)(G), which is defined to include, “The head, face, cardiovascular system, respiratory system, and all other systems or regions of the body not listed in subparagraphs (A) to (F), inclusive.”

The WCAB in Ross referred to this as a “catch-all provision,” and we can see why. It’s quite a broad category. In Ross, the applicant’s prior injuries to his digestive system and circulatory system clearly fit in this category. The same goes for nausea, irritable bowel syndrome, and the gastrointestinal tract. Skin is “not listed in subparagraphs (A) to (F),” so it fits, too.

Altogether, the applicant already had 59% disability in the region of body described in §4664(c)(1)(G). Because the applicant could never have more than 100% disability for any single region of the body, the maximum award they could receive for further disability to the same region was 100% less 59%, or 41%.

Oil Can’s smile returned. “I’m seeing it now. I don’t need to prove overlap to get some apportionment for the prior awards.”

“That’s right,” I told him. “If your judge follows the rationale in Ross, you should get apportionment under §4664(c). Bob already has 65% disability in the catch-all body region, and the most he can ever have in that region is 100%. Since the new case is in that same region, his maximum award can only be 35%.”

Gator grimaced like a slugger whiffing on a knuckleball. Oil Can and I poured ourselves celebratory drinks, and I suggested to Gator that he leave the briefcase magic to the originals.


All characters at my home bar are fictional and the storyline is simply a product of my active imagination.

As you can see, figuring out apportionment and overlap can take some doing. As a skilled attorney you are determining what specifically constituted a prior injury and stipulated award, if one exists, and comparing the affected body part(s) of a new injury.

While Ross lacks the designation “significant panel decision,” Joe Truce always liked to remind me of one of his favorite portions of the Labor Code, subtitled “Specific Additional Evidence Allowed,” §5703(g) which states in relevant part as follows:

The appeals board may receive as evidence either at or subsequent to a hearing, and use as proof of any fact in dispute, the following matters, in addition to sworn testimony presented in open hearing: … (g) Excerpts from expert testimony received by the appeals board upon similar issues of scientific fact in other cases and the prior decisions of the appeals board upon similar issues. (emphasis added)

He would also draw our attention to California Evidence Code §452(d), which provides that judicial notice may be taken of “Records of (1) any court of this state or (2) any court of record of the United States or of any state of the United States.”

We’re still making our own doubles. May George guide my hand. Bottoms up, friends, and keep washing your hands.

1 A copy of Kopping can be obtained via email request.

2 Admittedly not my best zinger but it is good to read the entirety of a code section.

3 Formerly a managing shareholder at our firm and creator of George the Bartender.

4 A copy of Ross can be obtained via email request.

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