Elsie Martinez was employed by Southern California Edison until 2004, when she allegedly became unable to work. During her employment with SCE, Martinez was a systems computer programmer. Her work involved repetitive use of her upper extremities. The parties stipulated that she had suffered two industrial injuries which gave rise to two separate workers’ compensation claims: (1) a specific injury to her neck, right shoulder, right wrist, right hand and psyche, which occurred on June 15, 2001, giving rise to the specific injury claim; and (2) a cumulative trauma injury, which arose over the entire period of Martinez’s employment (February 1998 through May 21, 2004), and caused injury to her lumbar spine, cervical spine, both shoulders, both wrists, both hands and psyche, giving rise to the cumulative trauma or CT claim.
The WCJ found that orthopedic and psychiatric impairments in the 2001 specific injury case entitled Martinez to 29% permanent disability, after apportionment. The WCJ found that Martinez’s fibromyalgia entitled her to a 100% permanent disability rating in the CT case and did not apportion any of her permanent total disability to the specific injury or to nonindustrial causes. The WCJ purported to base his decision on the CT claim on the opinion of independent medical evaluator Seymour Levine, M.D., a rheumatologist, who erroneously believed that Martinez had not suffered a specific injury in 2001.
Dr. Levine did not apportion between the specific injury claim and the CT claim as he explained in his report: “The cover letter points out that this patient has filed a claim for a specific incident that was said to have occurred on June 15, 2001. I asked the patient about this specific incident. She told me that there was not a specific injury that occurred on that date. It was on that date that she reported her medical problems.” As a result of his belief that Martinez had suffered no specific injury in June 2001, Dr. Levine concluded that “[T]he injurious exposure in this patient’s case, in my opinion, is one period of cumulative trauma for the dates of February 1998 through May 21, 2004.”
The WCAB denied SCE’s petition for reconsideration of the CT claim and adopted the WCJ’s decision. The award was reversed by the Court of Appeal in the unpublished case of Southern California Edison v WCAB (Martinez).
The opinion noted that labor code section 4664, as amended in 2004, provides that “the employer shall only be liable for the percentage of permanent disability directly caused by the injury arising out of and occurring in the course of employment.” The 2004 legislation represented “a diametrical change in the law with respect to apportionment . . . .” “[T]he new approach to apportionment is to look at the current disability and parcel out its causative sources — nonindustrial, prior industrial, current industrial — and decide the amount directly caused by the current industrial source. This approach requires thorough consideration of past injuries . . . .” The evidence presented here strongly suggests that one or more of Martinez’s disabilities caused by the cumulative trauma overlap with those attributable to the specific injury. In sum, the WCJ’s decision to allow Martinez an unapportioned award for the CT claim rests on a misinterpretation of Dr. Levine’s opinion about the causes of Martinez’s 100% disability and a failure to acknowledge that Dr. Levine’s view that there was no specific injury was wrong, a circumstance that removed overlap and apportionment from his medical reporting.
The Court of Appeal also noted that the WCJ calculated a COLA at the fixed rate of 4.6%. “We find no justification for inflating the award at a flat, unvarying rate of 4.6%. Neither inflation nor the cost of living, nor average wages, increase from year to year at the unvarying rate of 4.6%. Moreover, all of these factors (COLA, inflation, average wages) are more properly the subject of expert testimony, and there was no testimony, expert or otherwise, to support the 4.6% figure.”
Accordingly, the findings of fact and the award on the CT claim must be annulled and the matter remanded for further proceedings. Upon remand, the WCJ must determine whether there is an overlap between the disabilities caused by the CT claim and the specific claim, and, if there is, to apportion the award on the CT claim between the cumulative trauma, the specific injury, and nonindustrial causes.