Virginia Sanchez v. County of Los Angeles/Tristar Risk Management

This case was an en banc decision regarding the issue of overlap where there has been a prior industrial injury resulting in an award of permanent disability relating to the same region of the body. The Court discusses at length the issue of apportionment under Labor Code 4664 as enacted by SB 899.

The Appeals Board held:

(1) Apportionment of overlapping permanent disabilities. Where an employee suffers an industrial injury causing permanent disability, and where there is a prior award of permanent disability relating to the same region of the body, section 4664 requires the apportionment of overlapping permanent disabilities.

(2) Defendant's burden. The burden is on the defendant to prove existence of any prior permanent disability award(s) relating to the same region of the body.

(3) Burden met = conclusive presumption of existence. If the defendant establishes the existence of a prior permanent disability award relating to the same body region, the permanent disability underlying such award is conclusively presumed to still exist.

(4) Applicant must disprove overlap or prior award will be subtracted. If the defendant establishes the existence of any prior permanent disability relating to the same region of the body, the % of permanent disability from prior award(s) will be subtracted unless the applicant disproves overlap. For example, the applicant may be able to demonstrate that the prior permanent disabilityand the current permanent disability affect different abilities to compete and earn, either in whole or in part.

(5) Overlap issue determination. The issue of whether the prior permanent disability for the same region of the body overlaps the current disability is determined using substantially the same principles that were applied prior to the enactment of section 4664.

(6) PD not to exceed 100%. The sum of the permanent disability awards for any one body region cannot exceed 100%, even where the permanent disability caused by the applicant's new injury does not overlap permanent disability underlying the prior award, unless the employee's new industrial injury causes disability that is conclusively presumed to be total under section 4662.