Fresno Unified School Dist. v. Workers' Compensation Appeals Board11/22/2000
ORIGINAL PROCEEDING; petition for writ of review.
In the published portion of this opinion, we construe certain language in Labor Code section 4750.5. We hold, first, that the phrase "unrelated non-compensable injury " means a disabling event which, had it been work-related, would be compensable under the worker's compensation laws, and, second, that the word "solely" was intended to incorporate the existing rules applicable to the apportionment of successive disabilities.
Summary of Proceedings Below
Respondent Daniel Humphrey was employed as a custodian for petitioner Fresno Unified School District (FUSD) between September 15, 1982, and August 20, 1997. On August 19, 1997, Humphrey sustained an injury to his lower back while moving a heavy freezer. During his employment, he also suffered a cumulative trauma injury to his neck, spine, left minor shoulder and bilateral upper extremities. On August 21, 1997, Humphrey suffered a non-industrial heart attack. Humphrey did not return to work and, on September 24, 1997, filed two claims for compensation (one for each industrial injury) with respondent Workers' Compensation Appeals Board (WCAB).
FUSD admitted the two work-related injuries. The matter proceeded to trial for a determination of the amount of disability indemnity owed. FUSD claimed Labor Code sections 4750.5, 4750 and 4663 were applicable, requiring apportionment of the disability between the industrial injuries and the non-industrial injuries (Humphrey's heart attack and two previous automobile accidents.) A trial was held before a Workers' Compensation Administrative Law Judge (WCJ) on June 11, 1999. The WCJ, in an opinion, findings and award filed on November 18, 1999, determined in part that:
1. Humphrey suffered total temporary disability from his industrial injuries between August 21, 1997, to January 1, 1998;
2. Humphrey suffered permanent disability beginning January 2, 1998, to the extent of 71 percent; and,
3. Apportionment, under section 4663 or section 4750.5, to prior disability, to the subsequent heart condition, or to an underlying disease process, was not appropriate.
FUSD filed a timely petition for reconsideration with the WCAB on December 9, 1999. Consistent with normal WCAB practice, the WCJ filed his report on the petition for reconsideration on December 23, 1999, further explaining the award and recommending that FUSD's petition be denied.
On January 12, 2000, the WCAB denied the petition, stating:
"We have considered the allegations of the Petition for Reconsideration and the contents of the report of the workers' compensation administrative law judge [. . .] with respect thereto. Based on our review of the record, and for the reasons stated in said report which we adopt and incorporate, we will deny reconsideration."
Thereafter, on February 16, 2000, FUSD filed a Petition for Writ of Review in this court. On June 23, 2000, we ordered that the writ issue.
STATEMENT OF FACTS
Work Injuries
Humphrey's work as a custodian for FUSD included strenuous physical labor, such as waxing and mopping floors, yard maintenance and moving furniture, dining room tables, book cases, file cabinets and freezer equipment.
It is undisputed that, in the course of his employment, Humphrey sustained two distinct injuries subject to workers' compensation -- the cumulative back and neck injury and the back injury which occurred on August 19, 1997. The cumulative back injury was manifested by Humphrey's history of complaints about several episodes of lower back pain which gradually worsened throug
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