Fremont Indemnity Co. v. Workers' Compensation Appeals Board

California Court of Appeal Feb 24, 1989 No. H004783Published

Before: Capaccioli

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Holding. When multiple injuries are combined for a single permanent disability rating under the Wilkinson doctrine, each insurance carrier is liable for its pro rata percentage of the total disability indemnity, regardless of whether the rate of indemnity increased after the carrier's specific period of coverage.

Issues

Which insurance carrier is liable for an increased rate of permanent disability indemnity when a combined disability rating is based on injuries that straddle a rate change?
Does Labor Code section 4453.5 limit an insurer's liability to the rate in effect at the time of the injury when a combined permanent disability rating is applied?

Disposition. annulled and remanded

Quotations verified verbatim against the opinion

“We find that the insurance carrier for each injury is liable for its total percentage of liability found, and accordingly annul the board’s decisions in these matters.”

“It follows logically that Argonaut is liable for 81 percent of the indemnity payments payable on account of that disability, even though Argonaut is paying indemnity at a higher rate than what was in effect at the time of the earlier injuries.”

[916]

Opinion

CAPACCIOLI, J.

In this case we are asked to decide which insurance carrier is liable for an increased rate of permanent disability indemnity when the Workers’ Compensation Appeals Board (board) finds a combined disability based on several injuries that straddle a rate change. We find that the insurance carrier for each injury is liable for its total percentage of liability found, and accordingly annul the board’s decisions in these matters.

Facts and Procedural History

Applicant was employed as a working carpenter foreman by Lew Jones Construction Company (Lew Jones) from 1965 through January 1984. During that time he sustained several industrial injuries to his back and neck, and filed a number of separate applications for workers’ compensation benefits. Lew Jones was insured for purposes of workers’ compensation by Argonaut Insurance Company (Argonaut) through December 31, 1981, by Allianz Insurance Company in 1982, and by Fremont Indemnity (Fremont) from January 1, 1983, through applicant’s last day of employment with Lew Jones.

One of the applications, case number SJ 74448, resulted in a stipulated permanent disability award against Argonaut in July 1981 of 28% percent, payable at the rate of $70 per week. Other cases were dismissed at that time in consideration for this stipulated award.

In 1987, a consolidated hearing was held on nine other cases along with a petition to reopen SJ 74448, and the workers’ compensation judge (WCJ) issued a joint findings and award. All parties petitioned for reconsideration. In his recommendation on the petitions, the WCJ requested that the petitions be granted and the files returned to him in order to correct numerous errors. The board granted reconsideration and returned all 10 cases to the WCJ for further consideration.

A new joint findings and award issued in October 1987. “Take nothing” orders were issued in five of the cases. Good cause to reopen SJ 74448 was found based on increased disability, and disability was found in two other applications where Argonaut had liability, case numbers SJ 82358 and SJ 86724. Case number SJ 86724 alleged a specific injury to applicant’s neck and back in February 1981 and case number SJ 82358 alleged a similar injury in November 1981. In the last two applications, case numbers SJ 95215 and SJ 99976, disability was also found for which Fremont had liability. Case number SJ 95215 alleged a cumulative injury to applicant’s

Fremont Indemnity Co. v. Workers' Compensation Appeals Board

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CAPACCIOLI, J.

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