NABORS v. WORKERS' COMPENSATION APPEALS BOARD
Filed 6/8/06
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
| DANNY NABORS, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD, PIEDMONT LUMBER CO. et al., Respondents. | A110792 (WCAB No. SRO 122159) |
INTRODUCTION
Danny Nabors petitions for review of the opinion and decision after reconsideration of the Workers' Compensation Appeals Board (Board), which affirmed the award of a Workers' Compensation Judge (WCJ). Nabors challenges the Board's permanent disability apportionment formula.
BACKGROUND
In May 1996, Nabors sustained industrial injury to his low back and lower extremities while employed by Piedmont Lumber as a foreman, lumber stacker and forklift driver, resulting in an August 2001 stipulated award of $42,476 based on 49 percent permanent disability. Thereafter, while working for Piedmont as a mill supervisor, he sustained injury to the same body parts cumulative to August 19, 2002. After a hearing, the WCJ found the cumulative injury caused 31 percent of Nabors's permanent disability and awarded him $22,610. The Board granted Nabors's petition for reconsideration, and affirmed the award in an en banc opinion and decision. This timely writ petition followed.
DISCUSSION
In his opinion on decision, the WCJ explained that in apportioning disability between Nabors's two industrial injuries, he followed the rationale of Fuentes v. Workers' Comp. Appeals Bd. (1976) 16 Cal.3d 1 (Fuentes), and the plain meaning of Labor Code section 4664.[1]
In Fuentes, our Supreme Court considered the extent of an employer's liability for a worker's permanent disability that was attributable to both an industrial and a preexisting injury, under then-recent amendments to section 4658 (the permanent disability schedule), which changed the method for calculating compensation from four weeks of benefits for each percentage point of permanent disability to a formula in which the number of weekly benefits increases exponentially in proportion to the percentage of disability. (Fuentes, supra, 16 Cal.3d at pp. 3-4.) The court set out three computational formulas and concluded the Board had properly applied formula A, subtracting from the total percentage of disability the portion that was nonindustrial. The court believed that although that approach deprived the injured worker of amended section 4658's exponential increase in benefits,[2] it was required by section 4750.[3] (Id. at p. 6.) Since that time, section 4750 has been repealed and section 4664 has been added. (Stats. 2004, ch. 34 (Sen. Bill No. 899), §§ 35 & 37, pp. 151, 152.) Section 4664 provides, in pertinent part, â€
