JOSE REYES, Applicant,
v.
HART PLASTERING; FREMONT COMPENSATION INSURANCE COMPANY, in liquidation; CALIFORNIA INSURANCE GUARANTEE ASSOCIATION; and CAMBRIDGE INTEGRATED SERVICES, INC. (Servicing Facility), Defendants).
No. POM 261149
California Workers Compensation Decisions
Workers' Compensation Appeals Board State Of California
January 1, 2001
OPINION
AND DECISION AFTER RECONSIDERATION
On
December 3, 2004, we granted applicant's Petition for
Reconsideration of the Findings and Order issued by a
workers' compensation administrative law judge (WCJ) on
September 16, 2004. In that decision, the WCJ found that
applicant did not sustain an industrial injury to various
parts of his body when, while employed as a plasterer on May
22, 2000, he fell from a scaffold following a non-industrial
seizure. In his Opinion on Decision, the WCJ stated that,
based on the opinions of Robert Kounang, M.D., and Ronald
Kent, M.D., applicant's fall was "caused by
pre-existing seizure activity."
Applicant
contends, in substance, that the finding of industrial injury
was erroneous and unjustified, asserting under the principles
set forth in Employers Mutual Liability Ins. Co. of
Wisconsin v. Industrial Ace. Com. {Gideon)
(1953) 41 Cal.2d 676 [18 Cal.Comp.Cases 286] that, although
an idiopathic seizure is not compensable, the injuries
sustained from hitting the ground at work are compensable.
Defendant filed an answer to the petition for
reconsideration.
In his
Report and Recommendation on Petition for Reconsideration,
the WCJ opined that Labor Code section 4663,[1], as amended
by Senate Bill (SB) 899 (Stats. 2004, ch. 34, §34),
"requires a physician to address the issue of
apportionment of causation"; that applicant's injury
was precipitated by his preexisting seizure disorder; and,
therefore, that the petition should be denied because
"the applicant's condition was caused by his
pre-existing seizure condition."
For the
reasons discussed below, we hold that the amendments to
sections 4663 and 4664, which concern apportionment of
permanent disability, have not affected the statutes
governing the determination of whether an injury arises out
of and occurs in the course of employment, i.e., sections...