Evidentiary Presumptions and the Outlier Panel Decision in Fraire

Justin Sonnicksen, Esq.

Pleasant Hill, California

It is well settled that a three-commissioner panel decision of the Workers’ Compensation Appeals Board (WCAB) is not binding authority on judges at the trial level. However, a recent 2-1 decision of the WCAB merits discussion on the grounds that it reached a conclusion inconsistent with multiple prior reported cases addressing the issue of apportionment when a disability is presumed total in character. On March 5, 2020, a split panel of the WCAB issued the decision in Fraire v. California Dept of Corrections, 2020 Cal.Wrk.Comp. P.D. LEXIS 60. The WCAB remanded the case to the trial judge to consider the issue of apportionment of permanent disability (PD) under Labor Code section 4663, despite the fact that applicant’s disability was presumed total under Labor Code section 4662(a). This WCAB panel decision is inconsistent with the language of Labor Code section 4662(a), with the purpose of evidentiary presumptions, and with multiple prior panel decisions addressing the same issue. This author believes the Fraire decision is a mere aberration, for the reasons set forth in the following text.

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