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Wilbur-Ellis Co. v. Workers' Compensation Appeals Board



Wilbur-Ellis Company (Wilbur-Ellis) petitions for a writ of review from a decision of the Workers' Compensation Appeals Board (WCAB) because the WCAB did not apply the apportionment laws enacted by Senate Bill No. 899 (SB 899) before the case was submitted for decision. In light of the recent appellate decisions addressing the issue, we will grant the writ of review forthwith, annul the WCAB's Order Denying Reconsideration, and remand the matter to the WCAB to reconsider its decision.


Jose Flores (Flores) filed a claim for workers' compensation benefits for injury to his left knee between April 10, 2000, and April 10, 2001, while working as a tractor driver and chemical sprayer for Wilbur-Ellis in Helm, California. Following hearings in November 2003, March 2004, and July 2004, the parties filed post-trial briefs addressing the applicability of new apportionment laws under Labor Code sections 4663 and 4664 enacted on April 19, 2004, as part of SB 899's urgency legislation. (Stats 2004, ch. 34.)

In October 2004, the workers' compensation administrative law judge (WCJ) concluded Flores sustained an industrial injury to his left knee and issued a 70 percent permanent disability award without apportioning liability to either Flores's self-employed or non-industrial activities. Addressing the issue of apportionment, the WCJ explained:

"Applicant and defendant have filed post-trial briefs on this issue. Applicant's argument that the sections are not retroactive is more persuasive. Indeed, if the egislature intended to make these sections retroactive, it could have easily done so as it did in Section 47 [of SB 899] for the repeal of the treating physician's presumption of correctness.

"Addendum: Since the writing of this decision, the WCAB, en banc, issued Scheftner v. Rio Linda School District SAC 0326274 which held that SB 899 does not apply to cases in which discover closed prior to 4/19/04, unless otherwise specified in SB 899. Discovery in this matter closed well before 4/19/04 and Sections 4663 and 4664 do not `otherwise specify' when they apply. Accordingly, the decision not to apply Sections 4663 and 4664 to this matter remains unchanged."

Wilbur-Ellis petitioned for reconsideration contending, inter alia, that the WCAB should have applied the new apportionment laws and considered one of Flores's evaluating physician's opinions on the subject.

In a November 23, 2004, Report and Recommendation, the WCJ advised the WCAB:

" pportionment was never raised as an issue by Petitioner. Apportionment was therefore not an issue in this case, unless it became mandated by SB 899.

"SB 899 was enacted on 04/19/04, after discovery had been closed in this case and after this case had already been partially tried. A question arose whether Sections 4663 and 4664 applied to this case. The WCAB en banc decision in Scheftner v. Rio Linda School District SAC 0326274 confirmed the decision that those sections did not apply to this case because discovery had been closed long before 04/19/04."

On December 21, 2004, the WCAB summarily denied Wilbur-Ellis's petition for reconsideration, adopting and incorporating the WCJ's Report and Recommendation as its own reasoning.

Wilbur-Ellis contends the WCAB erroneously concluded the apportionment provisions enacted under SB 899 did not apply to Flores's pending workers' compensation claim. This court and the Second Appellate District have both concluded new sections 4663 and 4664 apply to all cases pending and not yet final at the time of SB 899's April 19, 2004, effective date. (Marsh v. Workers' Comp.

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