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Folsom v. Workers' Compensation Appeals Board10/17/2005
NOT TO BE PUBLISHED
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
Based on the permanent disability apportionment law in effect prior to the enactment of Senate Bill No. 899, the 2004 workers' compensation statutory reforms package, Gale Butler (Butler), in propria persona, was awarded permanent disability payments and coverage for future medical care. Concluding the new apportionment law should have been applied, we shall annul the decision of the Workers' Compensation Appeals Board (WCAB) and remand for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
In 1994 Butler was working for Filco Folsom (Filco) as a part-time warehouse worker and truck loader. One day, while delivering a refrigerator freezer for Filco, one of the wooden stairs Butler was going up partially gave way. The refrigerator freezer and the hand truck crashed down onto his left leg. Two or three days later Butler saw a doctor regarding pain and swelling in the leg.
Butler had previously, sometime in the early 1980's, experienced soreness and swelling in his legs after sleeping in the same position with his legs crossed for several days in a beanbag chair following dental surgery. He received medical treatment and appeared to recover.
Five or six months after the 1994 leg injury, in the spring of 1995, Butler was loading a truck for Filco when the handle of a handcart broke. Butler tore his left bicep muscle and left rotator cuff. While he was home recovering, his left leg again swelled up. A medical examination revealed residual blood clots.
Butler filed workers' compensation claims for industrial injuries. Sometime during the lengthy proceedings that followed on his claim regarding the 1994 injury to his leg, Butler amended his allegations to include injury to his lungs and heart, claiming inadequate treatment of the vascular problems in his leg resulting from the 1994 injury eventually led to blood clots breaking off and traveling to his lungs, causing a lung condition that over-stressed his heart.
A mandatory settlement conference (MSC) was held on March 18, 2004, at which time the case was set for hearing on April 27, 2004.
On April 19, 2004, after the MSC but before the hearing date, Governor Schwarzenegger signed into law Senate Bill No. 899 (2003-2004 Reg. Sess.), a package of statutory reforms to the workers' compensation laws. (Stats. 2004, ch. 34.) (Bill No. 899.) The legislation took effect immediately as urgency legislation. (Stats. 2004, ch. 34, § 49.) One of the changes made by Bill No. 899 was to require apportionment of permanent disability based on causation. (Stats. 2004, ch. 34, § 33 [repealed Lab. Code, § 4663 (former § 4663)], § 34 [added new Lab. Code, § 4663 (§ 4663)], § 35 [added Lab. Code, § 4664 (§ 4664)], § 37 [repealed Lab. Code, § 4750 (former § 4750)], § 38 [repealed Lab. Code, § 4750.5 (former § 4750.5)].)
A hearing on Butler's claim was held on April 27, 2004, and the matter was taken under submission. However, by order filed on June 15, 2004, the submission order was vacated by the workers' compensation judge (WCJ). The June 15, 2004 order states: "Since neither doctor used the causation standard concerning apportionment, the medical reports are incomplete and do not provide substantial evidence upon which a decision can be made. The law in effect on April 24, 2004, requires development of the record concerning the apportionment issu
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