Welcher v. WCAB 8/31/06 CA3

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: C051263

Case Date: 11/16/2006

Preview:Filed 8/31/06

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Shasta/San Francisco) ----

KENNETH DEE WELCHER, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD, HAT CREEK CONSTRUCTION, INC. et al., Respondents. JACK STRONG, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD and CITY AND COUNTY OF SAN FRANCISCO, Respondents. AURORA LOPEZ, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD, DEPARTMENT OF SOCIAL SERVICES et al., Respondents.

C051263 (WCAB No. RDG 106122)

C051409 (WCAB No. SFO 047903)

C051790 (WCAB No. RDG 089060)

1

HENRY L. WILLIAMS, JR., Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD and UNITED AIRLINES, Respondents. ORIGINAL PROCEEDINGS: Affirmed.

C051894 (WCAB Nos. SFO 0434079, SFO 0474801)

Petitions for writ of review.

Leep & Tescher and M. K. Tescher, Jr., for Petitioners Kenneth Dee Welcher and Aurora Lopez. Robert W. Daneri, Suzanne Ah-Tye and David M. Goi for Respondents Hat Creek Construction, Inc., State Compensation Insurance Fund, and Department of Social Services. No appearance for Respondent Workers' Compensation Appeals Board. Gearheart & Otis and Roy J. Otis for Petitioner Jack Strong. Dennis J. Herrera, City Attorney, Rebecca Liu and M. Diane Weber, Deputy City Attorneys for Respondent City and County of San Francisco. DuRard, McKenna and Borg and Susan R. Borg for Petitioner Henry L. Williams, Jr. Laughlin, Falbo, Levy & Moresi and Catherine J. Longman for Respondent United Airlines. David J. Froba for California Applicants' Attorneys Association as Amicus Curiae on behalf of all Petitioners. Raymond G. Fortner, Jr., County Counsel, Patrick A. Wu, Assistant County Counsel, Leah D. Davis, Senior Deputy County Counsel, and Vincent A. Lim, Deputy County Counsel for County of Los Angeles as Amicus Curiae on behalf of all Respondents.

2

Finnegan, Marks, Hampton & Theofel and Ellen Sims Langille for California Workers' Compensation Institute as Amicus Curiae on behalf of all Respondents. Sedgwick, Detert, Moran, & Arnold LLP, Christina J. Imre and Orly Degani for California Chamber of Commerce as Amicus Curia on behalf of all Respondents. These four consolidated cases raise the issue of how to properly apportion permanent disability in light of the 2004 amendments to the workers' compensation law. 34.) (Stats. 2004, ch.

We conclude that in repealing Labor Code1 section 4750 and

in enacting new sections 4663 and 4664 to govern apportionment, the Legislature did not intend to alter the apportionment method adopted by the California Supreme Court 30 years ago in Fuentes v. Workers' Comp. Appeals Bd. (1976) 16 Cal.3d 1 (Fuentes). so concluding, we agree with the decision of the Workers' Compensation Appeals Board (WCAB) in Nabors v. Piedmont Lumber & Mill Company (2005) 70 Cal.Comp.Cases 856 (Nabors) and disagree with our colleagues in the Fifth Appellate District, who reached the opposite conclusion in E & J Gallo Winery v. Workers' Comp. Appeals Bd. (2005) 134 Cal.App.4th 1536 (Gallo), as well as our colleagues in Division Two of the First Appellate District, who followed Gallo in Nabors v. Workers' Comp. Appeals Bd. (2006) 140 Cal.App.4th 217. Accordingly, we will affirm the decisions In

of the WCAB in these cases.

1

All further statutory references are to the Labor Code unless otherwise indicated. 3

FACTUAL AND PROCEDURAL BACKGROUND We begin by briefly summarizing the factual and procedural background of each case now before us. A Kenneth Dee Welcher Welcher sustained an industrial injury in July 1990 when his right arm and leg were caught in a conveyor belt. A

stipulated award determined that this injury resulted in a permanent disability of 62.5 percent, and Welcher received $32,193 in permanent disability benefits. Later work as a laborer for Hat Creek Construction, Inc., through March 2001 resulted in cumulative injury to Welcher's right leg that led to amputation below the knee. The parties

stipulated that Welcher's level of permanent disability is now 71 percent. The workers' compensation judge (WCJ) determined that "[a]pportionment is decided by subtracting percentage from percentage" and awarded Welcher $3,360 in permanent disability benefits from State Compensation Insurance Fund (SCIF) (Hat Creek's workers' compensation carrier). Apparently, the WCJ

reached this figure by subtracting Welcher's previous level of permanent disability (62.5) from his current level of permanent disability (71) and rounding the result down (8.5 down to 8). Thus, by the WCJ's calculation, SCIF was liable for 8 percent of Welcher's permanent disability, which corresponds to 24 weeks of payments at $140 per week (24 x $140 = $3,360). subd. (b)(2), 4658, subd. (b)(1) & (2).) 4 (See

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