New Turn on the Apportionment Road: Applying Apportionment Law to the Conclusive Presumption of Labor Code Section 4662(a)
Lauren J.M. Zalona, Esq.
San Jose, California
The employer is liable only for the percentage of permanent disability directly caused by the injury arising out of and in the course of employment. Consequently, defense attorneys operate on high alert when posed with an injured worker’s medical history or past medical complaints. The apportionment of permanent disability related to preexisting and or nonindustrial causes is at the forefront of every defense attorney’s mind when handling a claim. It is, after all, one of the few legal theories in the workers’ compensation system, other than affirmative legal defenses, for which the defense holds the burden to prove. Therefore, it is essential for a defense attorney to be aware of developments in apportionment law when they unfold. This is especially true in extremely high exposure cases that involve the Labor Code section 4662(a) presumption that an injured worker is permanently and totally disabled. New developments regarding whether there can be apportionment in those cases have been playing out in several WCAB panel decisions. This article explores this development in the law so the practitioner can be well versed when they are in the discovery and litigation phases of a case with these apportionment issues.