| (a) The employer shall only be liable for the percentage of permanent disability directly caused by the injury arising out of and occurring in the course of employment.
(b) If the applicant has received a prior award of permanent disability, it shall be conclusively presumed that the prior permanent disability exists at the time of any subsequent industrial injury. This presumption is a presumption affecting the burden of proof.
(c) (1) The accumulation of all permanent disability awards issued with respect to any one region of the body in favor of one individual employee shall not exceed 100 percent over the employee's lifetime unless the employee's injury or illness is conclusively presumed to be total in character pursuant to Section 4662. As used in this section, the regions of the body are the following:
(A) Hearing.
(B) Vision.
(C) Mental and behavioral disorders.
(D) The spine.
(E) The upper extremities, including the shoulders.
(F) The lower extremities, including the hip joints.
(G) The head, face, cardiovascular system, respiratory system, and all other systems or regions of the body not listed in subparagraphs (A) to (F), inclusive.
(2) Nothing in this section shall be construed to permit the permanent disability rating for each individual injury sustained by an employee arising from the same industrial accident, when added together, from exceeding 100 percent.
Added by Stats 2004, CH 34, effective 4/19/04
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Relevant Case Law
Note: Labor Code Section 4663 allows for the apportionment of pre-existing degenerative conditions.
Note: [Unpublished] Current sections 4663 and 4664 require physicians to consider each industrial injury sustained, and apportion the injured worker's disability for cause.
Note: [Unpublished] On remand, if the WCAB determines that apportionment is warranted, it is directed to calculate apportionment consistently with Brodie v. WCAB, 40 Cal.4th 1313.
Note: The Legislature did not intend to alter the old apportionment method with the 2004 amendments.
Note: An employer is not responsible for any portion of a worker's permanent disability that is caused by pre-existing non-industrial factors.
Note: Steps to apply apportionment under SB 899.
Note: Courts must separately rate successive injuries to the same body part that simultaneously become permanent and stationary.
Note: Apportionment for permanent disabilities to the same body region required only where the applicant fails to disprove overlap.
Note: Changes made to apportionment statutes in SB 899 do not affect the determination of AOE/COE.
Note: Where there is no final order awarding permanent disability before 04/19/04, the new apportionment standard applies.
Note: Submission orders and orders closing discovery that issued prior to the enactment of SB 899 are
Note: SB 899 apportionment applies prospectively from the date of enactment of S.B. 899, regardless of the date of injury.
Note: If section 4664(b) is understood as representing the Legislature�s common sense recognition that there can be no recovery from a permanent disability, then there is no inconsistency between that statute and section 4664(a).
Note: Order approving a compromise and release settlement is not a prior award of permanent disability for apportionment purposes.
Note: [Unpublished] The percentage of a previous award of PD must be subtracted from a newer award of PD.
Note: The new apportionment provisions in Senate Bill No. 899 became effective immediately and must be applied to all pending cases 'not yet final at the time of the legislative enactment on April 19, 2004, regardless of the earlier dates of injury and any interim decision.'
Note: The rule in Wilkinson is not consistent with the new requirement that apportionment be based on causation and, therefore, Wilkinson is no longer generally applicable.
Note: The Fuentes formula remains the correct one to apply in apportioning compensation between causes of disability.
Note: 'Formula C' which requires dollar value of previous award subtracted from dollar value of total current permanent disability, is correct method for calculating apportionment.
Note: Apportionment under SB 899 requires subtracting the current monetary value of prior awards from monetary value of current disability .
Note: When an employee's overall permanent disability is subject to apportionment for a preexisting disability the calculation of compensation is to be made by subtracting the preexisting percentage of permanent disability from the overall percentage of permanent disability.
Note: Applicant's stipulated award of 25% permanent disability shall be apportioned in accordance with Labor Code section 4664, but the calculation of the amount of permanent disability indemnity due after apportionment is deferred.
Note: [Unpublished] Any apportionment to age, per se, runs afoul of state antidiscrimination law.
Note: Employee sustaining multiple disabling injuries while working for the same selfinsured employer is entitled to compensation for the total disability above any percentage of permanent disability previously awarded.
Note: Apportionment for permanent disabilities to the same body region required only where the applicant fails to disprove overlap.
Note: [Unpublished] The Wilkinson doctrine allowing combined awards of permanent disability in successive injury cases is inconsistent with the requirement contained in Sen. Bill No. 899 that apportionment be based on causation rather than disability.
Note: Apportion based on percentage, not money or weeks.
Note: [Unpublished] Each injury must be separately apportioned for cause under sections 4663 and 4664, and PD awards may not be combined.
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