NO LEGAL APPORTIONMENT AGAINST 100% PD BASED UPON A CONCLUSIVE PRESUMPTION
A twenty-one year veteran workers' compensation defense attorney filed a psych claim which he asserted also aggravated his non-industrial Parkinson's Disease resulting in 100% disability. The WCJ agreed the applicant was 100% disabled, but awarded 66% PD based upon the industrial psych injury only, which was considered distinctly separate from the non-industrial Parkinson's Disease.
On reconsideration, the WCAB determined the psych injury had aggravated the Parkinson's Disease, resulting in a conclusively presumed 100% PD for a "brain injury" per L.C. 4662 (a)(4). Additionally, since the 100% PD is presumed conclusively correct, no apportionment is legally permitted.
Ted Hirschberger v. Stockwell, Harris, Woolverton and Muehl
2018 Cal. Wrk. Comp. P.D. LEXIS 482.
[COMMENT: First, it seems more plausible the Parkinson's would have contributed to the psych injury than vice versa. Nevertheless, the premise of a "conclusive presumption" of 100% PD not being subject to apportionment is a legally logical outcome, not unlike a death case in which partial apportionment is invalid...it is all or nothing.]