An Injured Worker Is Not Entitled To Prove Rehabilitation From Prior Permanent Disability Upon Sustaining Subsequent Disability

In Kopping v. Workers’ Compensation Appeals Board (2006 Daily Journal D.A.R. 12,259, Cal.App. 3 Dist., Sept. 11, 2006), a California Court of Appeal addressed the issues of (1) whether an injured worker can overcome the presumption that his prior permanent disability existed at the time of his subsequent industrial injury, and (2) whether the employer has the burden of proving overlap between the worker’s current disability and his previous disability in order to establish its right to apportionment.

The Court of Appeal found the worker is not entitled to prove that he was medically rehabilitated but the employer must prove the existence of an overlap between the prior disability and the current disability.

Facts

Ed Kopping injured his spine in 1996 while working for the California Highway Patrol (“CHP”). The parties stipulated that the injury resulted in a 29 percent permanent disability and Kopping was awarded permanent disability benefits. Kopping sustained another back injury in 2002 while working for CHP. The parties agreed that Kopping’s permanent disability after the second injury was 27 percent. The medical examiner for the second injury concluded that there should be no apportionment of Kopping’s disability because Kopping had stated that he had completely recovered from his 1996 industrial injury.

A workers’ compensation administrative law judge found that Kopping was not entitled to any permanent disability benefits for the 2002 injury because his level of disability from the 1996 injury exceeded the level of disability from the 2002 injury. The Workers’ Compensation Appeals Board (“WCAB”) found that Kopping was not entitled to prove that he was medically rehabilitated from his prior disability and that he has the burden of disproving overlap between his current permanent disability and his prior disability in order to establish his claim to further permanent disability benefits.

Decision

Labor Code section 4664(b) provides that if an “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.” The Court of Appeal concluded that the WCAB correctly held that the presumption established by section 4664(b) is conclusive and Kopping is not entitled to prove that he was medically rehabilitated from his prior permanent disability. The Court stated, “If permanent disability is understood as ‘the irreversible residual of an injury’ . . . then it is anomalous that an injured worker who was determined to have a permanent disability could prove, at a later date, that he actually recovered from that disability.”

However, the Court found that the WCAB incorrectly held that Kopping must disprove overlap between his prior and current disabilities. The Court of Appeal found that the burden of proving overlap is on the employer. The burden of proving apportionment ultimately falls on an employer because the employer is the party that benefits from apportionment. In order to meet its burden, the employer must first prove the existence of a prior permanent disability award and then must prove the extent of overlap between the disabilities. An employer is only entitled to avoid liability if it shows that some or all of the current industrial injury “overlaps with the prior disability and is therefore attributable to the prior industrial injury, for which the employer is not liable.”

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