Trevino v. Workers' Compensation Appeals Board

Opinion

GILBERT, J. Here we review a decision of respondent Workers’ Compensation Appeals Board (Board). The Board determined that applicant, who had sustained a disability while in a vocational rehabilitation program should be compensated at the rate ($70 a week) in effect at the time of the original industrial injury.

We conclude the Board erred. His compensation should have been at the rate ($140 a week) in effect at the time of the rehabilitation injury.

Applicant admittedly sustained industrial back injury on November 30, 1981, while employed by respondent Pool Well Servicing, insured by respondent Employers Casualty Company. The workers’ compensation judge (WCJ) found in Board case No. 82 SBA 35093 that this industrial injury resulted in 16 percent permanent disability, payable at the indemnity rate of $70 a week.

Following the 1981 injury, applicant engaged in a vocational rehabilitation on-the-job training (OJT) plan. Beginning in February of 1984 he trained at two automobile body shops, Rick’s for approximately one month, and Century for approximately four months. The training was designed to [1014]give applicant experience to become a full-time employee. He was not paid wages or salary during the OJT, but he received from Employers Casualty, vocational rehabilitation temporary disability indemnity. The automobile body shops were also paid for their efforts to instruct applicant.

Applicant alleged that in July of 1984 he sustained cumulative injury to his back while working for Rick’s and Century. He filed a claim for workers’ compensation benefits in Board case No. 85 SBA 48054. He also filed a petition to reopen Board case No. 35093 against Pool Well and Employers Casualty, alleging the 1981 injury caused new and further disability.1

Both Dr. Guellich and Dr. Carr attributed applicant’s disability to cumulative trauma while applicant was working for Rick’s and Century in the OJT program. Dr. Guellich, reporting for defendants, attributed 50 percent of applicant’s back disability to the 1981 injury and 50 percent to the “continuous trauma between 1982 and 1983 associated with Rick’s Auto Body and Century Body Shop.” Dr. Carr attributed 50 percent to the 1981 injury and concluded the “remaining 50% of his . . . disability should be apportioned to [applicant’s] work at [Rick’s] Body Shop and Century Body Shop as per the number of days worked for each employer. . . . [H]e worked at [Rick’s] Body Shop for approximately 2 months to 8/83 or 9/83 and the Century Body Shop for approximately 5 months to 1/84. Repetitive bending, stooping and other physical stresses permanently worsened his condition until he was required to undergo surgery by 1/85.”