California
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Stare Decisis-Between District Courts of Appeal
Brodie_v_WCAB_A112003

INTRODUCTION

            California’s Workers’ Compensation law was extensively amended in 2004 by urgency statute that took immediate effect and was intended to address a “crisis” in the availability and affordability of workers’ compensation insurance.  (Stats. 2004, ch. 34, § 49.)  This case involves the application of certain parts of the new law that require apportionment where a claimant’s permanent disability is due, in part, to a prior injury.  The issue discussed here has been addressed in two published decisions of the Court of Appeal, E & J Gallo Winery v. Workers’ Comp. Appeals Bd. (2005) 134 Cal.App.4th 1536 (Dykes) (review den. Mar. 1, 2006, S140645), and Nabors v. Workers’ Comp. Appeals Bd. (2006) 140 Cal.App.4th 217 (review den. Aug. 23, 20006, S145097).  While we agree with the apportionment formula applied in those cases, we apply it in a slightly different way.

            In this case, Contra Costa County Firefighter Stan Brodie petitions for review of an order of the Workers’ Compensation Appeals Board (Board) denying reconsideration of the permanent disability award of a Workers’ Compensation Judge (WCJ).  He seeks the use of a different apportionment formula from that applied by the WCJ and the Board.  We will annul the decision of the Board and remand the matter with directions to recompute Brodie’s permanent disability award according to the formula described in our decision.

FACTS AND PROCEDURAL HISTORY

            Brodie sustained an industrial injury to his back, spine and right knee on December 4, 2000, and injury to his back and spine cumulative to September 2002, that resulted in 74 percent permanent disability.  Over the previous 30 years of his career as a firefighter, Brodie had sustained several industrial injuries to the same body parts for which he was awarded compensation based on a 44.5 percent permanent disability rating.  So, in calculating the award in this case, the WCJ was required to apportion Brodie’s disability between his prior injuries and the injuries that underlie his current claim, and in so doing applied new Labor Code sections 4663 and 4664 (Stats. 2004, ch. 34, §§ 34 & 35; see post, pp. 3-4).[1]  

            In her decision, the WCJ declared herself bound to follow the Board’s en banc decision in Nabors v. Piedmont Lumber & Mill Company (2005) 70 Cal.Comp.Cases 856, 857-858 (Nabors), which was then pending in Division Two of this court on a petition for review.  In Nabors, a 4-2 majority of the Board concluded that when apportioning permanent disability benefits, the amount of indemnity is calculated by determining the overall percentage of permanent disability and subtracting therefrom the percentage of disability caused by factors other than the current industrial injury.  This formula (“formula A”) was determined to be an appropriate method of apportionment under former section 4750[2] in Fuentes v. Workers’ Comp. Appeals Bd. (1976) 16 Cal.3d 1, 5-6 (Fuentes).  The WCJ thus subtracted 44.5 from 74 and awarded Brodie benefits totaling $20,867.50 based on a 29.5 percent permanent disability rating.  But she did so reluctantly, and considered the dissenting view in Nabors—in repealing section 4750 and enacting section 4664, the Legislature contemplated a new apportionment formula—to be a more compelling argument.  (See Nabors, supra, 70 Cal.Comp.Cases at pp. 864-865, dis. opn. of Comr. Caplane.)

            In her report and recommendation on Brodie’s petition for reconsideration, the WCJ again expressed her disagreement with the Nabors majority, and her belief that under section 4664, an employer is liable for that portion of a worker’s overall disability that exceeds his prior level of disability.  But she was bound by Nabors, and urged the Board to grant reconsideration and revisit its Nabors analysis.  (By this time, Division Two of this court had granted review in Nabors.)[3]  The Board denied reconsideration, and adopted and incorporated that part of the WCJ’s report that acknowledged her duty to follow the Board’s en banc decisions (Cal. Code Regs., tit. 8, § 10341), which also binds the Board until such decisions are stayed or overruled by an appellate court (Diggle v. Sierra Sands Unified School District (2005) 70 Cal.Comp.Cases 1480, 1481 [“significant” Board panel decision]). 

            This timely writ petition followed.

DISCUSSION

            The issue here is:  When making an award for permanent disability under the 2004 amendments to the workers’ compensation law, how does a prior permanent disability affect the measure of indemnity due to a claimant?  Two sections of the new law address the apportionment of employer responsibility for such injuries.  Section 4663, subdivision (a) provides that “[a]pportionment of permanent disability shall be based on causation.”  Section 4664, subdivision (a) provides, “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.”  So, any award of permanent disability must take causation into account, and an employer is responsible for the percentage of disability caused by a work-related injury.

            But fulfilling the legislative mandate to apportion employer responsibility on the basis of causation is not so easy, because “[i]n adopting Sen[ate] Bill 899, the Legislature did not outline any particular method for apportioning either a permanent disability award or a life pension.”  (Dykes, supra, 134 Cal.App.4th at p. 1552.)  In choosing the appropriate formula, we will follow the statutory mandate that an “employer shall only be liable for the percentage of permanent disability directly cased by the injury” (§ 4664, subd. (a)) with several precepts of statutory construction in mind:  The workers’ compensation laws are to be liberally construed to extend benefits to people injured while working.  (§ 3202.)  To the extent the words of the statute can lead us to the result, we will follow them, giving words their ordinary and proper meaning.  (People v. Mel Mack Co. (1975) 53 Cal.App.3d 621, 626.)  But we are also aware of the historical background that led to the passage of Senate Bill No. 899, and to the extent the statutory language does not suffice, we will consider this historical context.  (Ibid.)

            In Dykes and Nabors, two different districts of the Court of Appeal considered the issue presented here.  “We acknowledge we are not bound by an opinion of another District Court of Appeal, however persuasive it might be.  [Citation.]  We respect stare decisis, however, which serves the important goals of stability in the law and predictability of decision.  Thus, we ordinarily follow the decisions of other districts without good reason to disagree.  [Citation.]”  (Greyhound Lines, Inc. v. County of Santa Clara (1986) 187 Cal.App.3d 480, 485.)  So we largely follow the decisions in Dykes and Nabors. 

            The Dykes and Nabors courts discussed and applied an apportionment formula first articulated but rejected by our Supreme Court in Fuentes, supra, 16 Cal.3d 1.  There, the court announced the appropriate method to determine an employer’s liability for a permanent disability in cases where the overall disability is due in part to a preexisting injury.  (Id. at pp. 3-4.)  The issue arose because 1971 amendments changed the schedule of permanent disability benefits (§ 4658) from a linear one that awarded four weeks of compensation for each one percent of permanent disability, to one in which the number of weekly benefits increases exponentially in proportion to increasing percentages of disability.  (Fuentes, supra, at p. 4.)  Thus, for example, the benefits for 44.5 percent permanent disability plus the benefits for 29.5 percent permanent disability add up to appreciably less than the benefits for 74 percent permanent disability. 

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