What the panel ordered
The WCAB panel denied the defendant's Petition for Reconsideration and upheld the WCJ's Joint Findings and Award of 79% permanent disability for both injuries as a single joint award.
Defendant filed a Petition for Reconsideration of the WCJ's Joint Findings and Award of November 24, 2020, which was denied by the WCAB panel.
What was disputed, and how it came out
Each issue the panel decided, with the reasoning it gave. An outcome is what this panel did on this record — not a rule, and not a prediction.
The WCJ and WCAB found that the heart injury presumption under Labor Code section 3212 and the anti-apportionment provision of section 4663(e) applied, making separate awards for the orthopedic injuries inappropriate and requiring a single joint award.
From the decision · page 1Defendant seeks reconsideration of a workers' compensation administrative law judge's (WCJ) Joint Findings and Award of November 24, 2020, wherein it was found that while employed on September 30, 2016 in case ADJ10625599 as a police officer, applicant sustained industrial injury to his neck and heart. It was also found that while employed as a police officer during a cumulative period ending on July 3, 2017 in case ADJ11025566, applicant sustained industrial injury to his hands/wrists and heart. In finding injury to the heart in both cases, the WCJ applied the "heart trouble" presumption of Labor Code section 3212.5.1 The WCJ then applied Labor Code section 4663(e) which states that section 4663 apportionment does not apply to "injuries or illnesses covered under Section[]... 3212.5," and issued a joint award of 79% permanent disability covering both injuries.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Applicant sustained industrial injury to neck and heart on September 30, 2016, and cumulative trauma injury to hands/wrists and heart ending July 3, 2017.
Favours Applicant prevailed
These injuries involved the heart, which is covered by the presumption under Labor Code section 3212, triggering the anti-apportionment rule of section 4663(e) and requiring a joint award.
From the decision · page 1Defendant seeks reconsideration of a workers' compensation administrative law judge's (WCJ) Joint Findings and Award of November 24, 2020, wherein it was found that while employed on September 30, 2016 in case ADJ10625599 as a police officer, applicant sustained industrial injury to his neck and heart. It was also found that while employed as a police officer during a cumulative period ending on July 3, 2017 in case ADJ11025566, applicant sustained industrial injury to his hands/wrists and heart. In finding injury to the heart in both cases, the WCJ applied the "heart trouble" presumption of Labor Code section 3212.5.1 The WCJ then applied Labor Code section 4663(e) which states that section 4663 apportionment does not apply to "injuries or illnesses covered under Section[]... 3212.5," and issued a joint award of 79% permanent disability covering both injuries.
What the panel did with the medical opinions
The role the physician served, and the weight the opinion carried. Physicians are named here as the decision names them; we do not score them.
Found that the applicant's hypertensive heart disease developed due to work-related stress and qualifies for the presumption under Labor Code section 3212. Found apportionment of 85% to the cumulative trauma claim and 15% to the specific injury, but apportionment was precluded by Labor Code section 4663(e).
From the decision · page 7The parties herein proceeded to the AME Dr. Meth, who found that the applicant's heart/hypertension developed due to work related stress. Joint Exhibit 1, page 21. Specifically, Dr. Meth found that the applicant has "hypertensive heart disease" and qualifies for the presumption pursuant to L.C. § 3212. Joint Exhibit 2, page 2. Petitioner did not submit any evidence that controverted the presumption, or the AME's findings. Accordingly, the applicant's heart condition was found to have arisen out of his employment.
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
Labor Code section 3212
Labor Code section 3212 heart trouble presumption
Applied to find the applicant's heart injury compensable as presumptive under the statute.
From the decision · page 1Defendant seeks reconsideration of a workers' compensation administrative law judge's (WCJ) Joint Findings and Award of November 24, 2020, wherein it was found that while employed on September 30, 2016 in case ADJ10625599 as a police officer, applicant sustained industrial injury to his neck and heart. It was also found that while employed as a police officer during a cumulative period ending on July 3, 2017 in case ADJ11025566, applicant sustained industrial injury to his hands/wrists and heart. In finding injury to the heart in both cases, the WCJ applied the "heart trouble" presumption of Labor Code section 3212.5.1 The WCJ then applied Labor Code section 4663(e) which states that section 4663 apportionment does not apply to "injuries or illnesses covered under Section[]... 3212.5," and issued a joint award of 79% permanent disability covering both injuries.
Labor Code section 4663(e)
Labor Code section 4663(e) anti-apportionment provision
Applied to preclude apportionment of permanent disability for injuries covered under section 3212, requiring a joint award.
From the decision · page 1Defendant seeks reconsideration of a workers' compensation administrative law judge's (WCJ) Joint Findings and Award of November 24, 2020, wherein it was found that while employed on September 30, 2016 in case ADJ10625599 as a police officer, applicant sustained industrial injury to his neck and heart. It was also found that while employed as a police officer during a cumulative period ending on July 3, 2017 in case ADJ11025566, applicant sustained industrial injury to his hands/wrists and heart. In finding injury to the heart in both cases, the WCJ applied the "heart trouble" presumption of Labor Code section 3212.5.1 The WCJ then applied Labor Code section 4663(e) which states that section 4663 apportionment does not apply to "injuries or illnesses covered under Section[]... 3212.5," and issued a joint award of 79% permanent disability covering both injuries.
Benson v. Workers' Comp. Appeals Bd. (2009) 170 Cal. App. 4th 1535
Benson v. Workers' Comp. Appeals Bd. (2009) 170 Cal. App. 4th 1535
Distinguished from the present case because of the application of sections 3212 and 4663(e) which preclude separate awards.
From the decision · page 6Petitioner quotes from the case of Benson v. Workers' Comp. Appeals Bd. (2009) 170 Cal. App. 4th 1535 [74 Cal.Comp. Cases 113 (Benson), noting that the Court of Appeal in that case found that there had been no "dispute that the applicant had suffered a specific injury and a cumulative trauma injury that resulted in two distinct industrial injuries, and warranted two separate awards." Petition for Reconsideration, page 3, lines 20-22. Petitioner compares the cases herein to those in Benson. Specifically, that the cervical spine is solely due to the specific injury, and that the bilateral hands/wrists are solely due to the CT. Therefore, petitioner argues that "it is invalid for the cervical and bilateral carpal tunnel injuries to be joined into a joint award when they are clearly caused by two distinct and separate dates of injuries." Id. at page 4, lines 10-12.
What proof carried it
The evidence the panel weighed, by kind.
Applicant's credible testimony under direct examination
From the decision · page 5The parties submitted as Joint Exhibits 1- 11, reports issued by the AMEs Dr. Meth and Dr. Heskiaoff, who addressed the applicant's hypertension/heart and orthopedic body parts respectively. The applicant provided credible testimony under direct examination only.
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About this page
- A published decision of the California Workers' Compensation Appeals Board, taken apart by what it turned on. The Board publishes the decision itself; this page adds the extraction and quotes the passage behind every claim.
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