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Mendosa v. Workers' Compensation Appeals Board11/14/2003
THE COURT
Raymond Mendosa (Mendosa) petitions for a writ of review to determine the lawfulness of the decision of the Workers' Compensation Appeals Board (WCAB) apportioning his disability award from a prior injury. (Lab. Code, § 5950; Cal. Rules of Court, rule 57.) We will deny the petition.
BACKGROUND
Mendosa worked as a mechanic for Turlock Scavenger Company (Scavenger) when he heard a pop in his back on May 23, 1996. He began experiencing low back pain radiating down his right leg and eventually became temporarily disabled for approximately seven weeks. After returning to work following surgery, he reduced his daily activities and permanently limited himself by not lifting more than 25 pounds. Between 1996 and 1999, Mendosa no longer worked on automobile brakes, tires, transmissions, and rear-ends because they required lifting heavy weight. He did not suffer any low back pain so long as he limited his activities. In April 2001, the parties settled Mendosa's disability claim for $12,000.
Mendosa sustained a second work-related injury on January 25, 1999, when he fell onto a three-by-five foot piece of steel while trying to repair a conveyer belt. Several weeks later, he began experiencing pain from his hip down to his right foot. As the pain increased, Mendosa decreased his lifting capacity to 15 pounds and performed less bending and twisting.
The 1999 injury proceeded to hearing in June and September 2001. Following the recommendation from the Department of Industrial Relations' disability rating specialist, the WCJ found Mendosa 15 percent permanently partially disabled. The rating specialist testified at hearing that he calculated Mendosa's disability by subtracting the difference in work restrictions between the two injuries.
Mendosa petitioned for reconsideration contending the WCJ should not have apportioned his disability award. The WCAB disagreed and denied the petition.
DISCUSSION
Mendosa contends the WCAB improperly apportioned the award by subtracting a retroactive prophylactic work restriction related to the 1996 injury from his current level of disability. "Apportionment, in workers' compensation terminology, means the separating out of the part or parts of a disability or condition that are the result of an industrial injury from the part or parts of the disability or condition that are the result of other industrial or non-industrial injuries, conditions, or diseases." (O'Brien, California Workers' Compensation Claims and Benefits (10th rev. ed. 1999) § 31.13, p. 783-1; see Ashley v. Workers' Comp. Appeals Bd.(1995) 37 Cal.App.4th 320, 326.) "The question of apportionment is one of fact, and in making its determination, the board must rely on substantial evidence." (Pullman Kellogg v. Workers' Comp. Appeals Bd.(1980) 26 Cal.3d 450, 454.) Thus, if the WCAB's findings " ` "are supported by inferences which may fairly be drawn from evidence even though the evidence is susceptible of opposing inferences, the reviewing court will not disturb the award." ' " (Judson Steel Corp. v. Workers' Comp. Appeals Bd.(1978) 22 Cal.3d 658, 664; §§ 5952, 5953.)
Section 4750 relieves an employer from the burden of compensating an injured worker for a pre-existing permanent disability or physical impairment. An employer is liable only for that portion of a subsequent injury that the employee would have sustained absent the prior injury. "For example, an employee who enters the work force with impaired vision in one eye, and who later becomes blind in the other eye due to an industrial injury, is entitled to a permanent disability award reflecting only the loss of sight due to the indus
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