Acme Steel v. Workers' Compensation Appeals Board
218 Cal. App. 4th 1137
Cal. Ct. App.2013Background
- Acme Steel petitions for writ of review challenging WCAB's 100% permanent disability award to Michael Borman without apportionment.
- Borman sustained cumulative hearing loss and injuries to upper extremities, neck, and head during roughly the year before his 2003 termination, with AMEs (Drs. Devor, Ansel, Schindler) diagnosing and apportioning hearing loss.
- Schindler’s 2004 report attributed approximately 60% of hearing loss to occupational factors (noise exposure) and 40% to nonindustrial factors (cochlear degeneration); he rejected some Dr. Menace findings.
- A 2012 WCALJ finding awarded 100% PD based on lack of earning capacity, relying on vocational testimony; considered to rebut DFEC, with no apportionment addressed.
- Acme sought reconsideration; WCAB adopted WCALJ’s recommendation, but the petition for review was granted due to failure to apportion per governing statutes.
- Court remands to WCAB to order apportionment and issue a consistent award in light of apportionment requirements under SB 899.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether apportionment was required under Labor Code sections 4663–4664. | Borman’s 100% loss must be apportioned between current and prior/ nonindustrial factors. | WCAB could award total impairment based on the current industrial injury without apportionment. | Yes, apportionment required. |
| Whether substantial medical evidence supported apportioning from Dr. Schindler’s reports. | Dr. Schindler’s AME findings show distinct causative sources warranting apportionment. | WCAB properly relied on vocational evidence to find total loss. | No, WCAB must parcel out causation per SB 899. |
Key Cases Cited
- Brodie v. Workers’ Comp. Appeals Bd., 40 Cal.4th 1313 (2007) (reform of apportionment under SB 899; current vs. prior injury sources)
- State Comp. Fund v. Workers’ Comp. Appeals Bd., 201 Cal.App.4th 443 (2011) (apportionment based on causation; look to current vs. prior injuries)
- Benson v. Workers’ Comp. Appeals Bd., 170 Cal.App.4th 1535 (2009) (review of legal standards; apportionment framework)
- Ogilvie v. Workers’ Comp. Appeals Bd., 197 Cal.App.4th 1262 (2011) (limits on rebutting permanent disability without apportionment)
- E.L. Yeager Construction v. Workers’ Comp. Appeals Bd., 145 Cal.App.4th 922 (2006) (need for reasonable medical probability to constitute substantial evidence)