Newman v. Workers' Compensation Appeals Board

[221]

Opinion

SONENSHINE, J.

Claude Newman seeks annulment of an order of the Workers’ Compensation Appeals Board (hereinafter Board) apportioning part of his permanent disability to a prior nonindustrial injury.

As a child, petitioner’s left leg was amputated above the knee due to osteomyelitis. For various reasons, a prosthesis was not prescribed and he walked using crutches and a cane.

Between 1940 and 1980 Newman was employed as a jeweler. His work was described as 95 percent sedentary and the record contains no evidence his injury inhibited his earning ability. In 1980 he suffered a cerebral vascular accident (CVA) which resulted in hearing loss, loss of the use of his left arm, decreased vision, loss of memory, and learning disabilities. Both doctors who examined him concluded the CVA was industrially caused and left him permanently and totally disabled.

Following an evidentiary hearing, the judge found Newman to be 100 percent permanently disabled from the CVA and refused to apportion any of the second injury to the first. In written findings, the judge determined the present disability was unrelated to the amputation and petitioner’s ability to compete in the open job market was decreased by the CVA in a manner completely different from the first injury.

Respondent’s request for reconsideration by the Board was granted, with the Board referring the matter to a ratings specialist. The ratings specialist, following the Board’s order, assigned a 78 percent disability rating to the amputation and a 100 percent permanent disability rating to the CVA. Relying solely on the perception the Board had

ordered

apportionment, the ratings specialist subtracted the first rating from the second and assigned a 22 percent permanent disability rating to petitioner. After considering the transcript of the cross-examination of the ratings specialist, the Board annulled the judge’s order and incorporated the findings of the rating specialist awarding petitioner a 22 percent permanent disability.

Whether the Board’s apportionment of petitioner’s injuries was proper turns upon the interpretation of Labor Code section 4750. It provides: “An employee who is suffering from a previous permanent disability or physical impairment and sustains permanent injury thereafter shall not receive from the employer compensation for the later injury in excess of the compensation allowed for such injury when considered by itself and not in conjunction with or in relation to the previous disability or impairment, [f] The employer shall not be liable for compensation to such an employee for the