Is it possible that the California Legislature, in enacting Labor Code §§ 4663 and 4664, intended for them to be mutually exclusive?  I don’t think so.  In fact, not only did the thought never cross my mind that the two couldn’t be applied in the same case, I never thought the Legislature would limit a defendant’s options to a choice between the two when the two could both easily exist in one case.

Then, I read Robinson v. Workers’ Compensation Appeals Board, a writ denied case.

The skinny:  §§ 4663 and 4664 can both be applied in the same case.

[Just a note – before you begin raining abuse upon your humble author for wasting your time with the obvious, with all due contrition I point out that common sense has consistently proven a weak source of authority in California Workers’ Compensation practice; and even a Writ Denied case from the Court of Appeal places an iron fist within the velvet glove of basic reading comprehension.]

In Robinson, the Workers’ Compensation Judge applied § 4663, apportioning some of applicant’s impairment to non-industrial causation, and also applied § 4664, apportioning some of applicant’s impairment to his prior award from 2004.

Applicant petitioned the Workers’ Compensation Appeals Board for reconsideration, arguing that the legislature did not intend for §§ 4663 and 4664 to be applied to the same case.  The WCAB’s answer?  “[w]e see nothing in the language of the statutes or in their legislative purpose to support such a conclusion.”

The WCAB continued, citing Brodie v. WCAB to hold that impairment must be parceled out into (1) non-industrial causation (§ 4663); (2) prior industrial causation (§ 4664); and (3) current industrial causation.

[Even part (3), current industrial causation, should be parceled out into the various injuries (specific vs. cumulative trauma, multiple specific injuries, or multiple cumulative traumas).  This issue is discussed in a prior post.]

Applicant’s petition for a writ of review was denied by the Court of Appeals.