Maria Fraire was awarded 100% permanent disability twice, in two out of three cases she filed against the California Department of Corrections and Rehabilitation, without any apportionment. A split panel decision in Fraire v California Department of Corrections reversed this result.

In the first case, Maria Fraire, sustained industrial injury to her right hand and fingers, cervical spine, bilateral knees, cervical spine, lumbar spine and head on May 23, 2005. The WCJ found that the permanent disability for this injury will be addressed in the two companion cases.

In the second case, the WCJ found that Fraire sustained industrial. injury to her bilateral knees, internal organs, both eyes, left shoulder, diabetes, cardiovascular system, psyche, and hypertension on September 11, 2006, which caused permanent total disability (i.e. , 100%) based on the provision of Labor Code section 4662(a)(1) that the loss of both eyes or the sight thereof is conclusively presumed to have resulted in permanent total disability.

In the final case, Fraire injured her her eyes, psyche, and cardiovascular system on June 28, 2012. The WCJ found that her June 28, 2012 injury caused permanent total disability (i.e., 100%) based on the provision of section 4662( a)( 1) that the loss of both eyes or the sight thereof is conclusively presumed to have caused permanent total disability.

And as in the 2006 case, the WCJ found that although the medical evidence establishes that only half of applicant’s permanent total disability was caused by her June 28, 2012 industrial injury, the conclusive presumption of section 4662(a)(l) precludes the apportionment of applicant’s permanent total disability.

SCIF’ s petition for reconsideration contends that the injuries involving the loss of both eyes or the sight thereof under section 4662(a)(l) are subject to apportionment under section 4663. Reconsideration was granted, in the split panel decision of Fraire v California Department of Corrections.

The WCAB concluded that section 4662(a) conclusive presumption does not preclude apportionment. With respect to apportionment to causation under sections 4663 and 4664 (b), there is no reasonable rationale for distinguishing between permanent disabilities that are conclusively presumed to be total in character pursuant to section 4662(a) and those that are factually determined to have caused 100% overall permanent disability pursuant to sections 4662(b) and 4660.

“On remand, the WCJ should redecide permanent disability and apportionment in applicant’s three cases in light of the correct legal principle that permanent disabilities that are conclusively presumed to be total under section 4662(a) are  subject to apportionment to causation under sections 4663 and 4664(a).”

Commissioner Katherine A. Zalewski dissented. She said that “the Appeals Board has repeatedly held that permanent disabilities that “shall be conclusively presumed to be total in character” pursuant to section 4662(a ) are not subject to apportionment to causation under section 4663 or 4664(a).”

“Nevertheless, in his Joint Opinion on Decision, the WCJ does not even address how, if at all, this provision of section 4664( c) could justify two separate 100% permanent disability awards in these cases. Accordingly, for this limited reason, I would have rescinded WCJ’s decisions and returned these cases to the WCJ to consider whether two separate 100% permanent disability awards are justified.”