Oswalt v. WCAB
Filed 9/6/06 Oswalt v. WCAB CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
| JEFFREY OSWALT, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD, JONES & LEWIS MORTUARY et al., Respondents. |
A112612
(Workers' Compensation Appeals Board No. SRO 126352, 126353)
|
Petitioner Jeffrey Oswalt's claim for permanent disability benefits was denied because he had received a prior permanent disability award for an overlapping disability. Oswalt argues that there was not substantial evidence in the record to support the conclusion that a statutory presumption barred his recovery. We agree and vacate the order.
Background
In 1997, Oswalt injured his right ankle while working as a police officer. By 2000, he was working as an apprentice embalmer for Jones & Lewis Mortuary, the respondent employer in this action. In October 2001, Oswalt twice injured his low back while working for Jones & Lewis. A qualified medical examiner, Dr. McCoy, diagnosed Oswalt with a permanent low back injury resulting from the October 2001 incidents. Oswalt filed a Workers' Compensation claim for temporary and permanent disability benefits his employer had denied.
A hearing was held before a Workers' Compensation administrative law judge (WCJ). The contested issue that we address is whether the permanent low back disability caused by the October 2001 incidents should be apportioned in part or whole to the disability that was caused by the 1997 incident. After the 1997 injury, Oswalt had no reservations about being able to perform his job at the mortuary, suggesting he had medically rehabilitated from the prior disability before the October 2001 injury occurred. His Workers' Compensation claim for the 1997 ankle injury was settled by a compromise and release. Respondent produced a 1997 medical report that described Oswalt's work restrictions following his ankle injury, and a 2005 medical report in which Dr. McCoy reviewed medical records of both the ankle injury and the 2001 low back injuries and rendered an opinion about apportionment. The 2005 report is not in the record, but respondent represented that Dr. McCoy â€
