City of Petaluma v. WCAB (Lindh): Apportionment to Risk Factors When They Cause Disability
SURE LOG, ESQ.
El Segundo, California
In 2004 the Legislature made a diametric change to the law on apportionment. Labor Code section 4663 was amended to allow apportionment to causation. Under this statute, and Labor Code section 4664, employers are liable only for the percentage of permanent disability directly caused by the injury arising out of and in the course of employment.
Despite the changes in apportionment law, the WCAB has been reluctant to allow apportionment when characterized as to risk factors. Citing the well-established case of Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, the WCAB has frequently held that apportionment to risk factors was impermissible because it constituted apportionment of the injury and not apportionment of the disability.