Stanford Law School - Robert Crown Law Library

Filed 5/3/07

IN THE SUPREME COURT OF CALIFORNIA

STAN BRODIE,
Petitioner,
S146979
v.
Ct.App.
1/3
A112003
WORKERS’ COMPENSATION
APPEALS BOARD and CONTRA
(W.C.A.B. Nos.
COSTA COUNTY FIRE PROTECTION
WCK 059913, WCK 068583,
DISTRICT, )
OAK
298772)
)
Respondents.

)
KENNETH DEE WELCHER,
Petitioner,
S147030
v.
) Ct.App.
3
C051263
WORKERS’ COMPENSATION
APPEALS BOARD and HAT CREEK
(W.C.A.B. No.
CONSTRUCTION, INC., et al.,
RDG 106122)
)
Respondents.

---

)
JACK STRONG,
Petitioner,
v.
) Ct.App.
3
C051409
WORKERS’ COMPENSATION
APPEALS BOARD and CITY AND
(W.C.A.B. No.
COUNTY OF SAN FRANCISCO,
SFO 047903)
)
Respondents.

)
AURORA LOPEZ,
Petitioner,
v.
) Ct.App.
3
C051790
WORKERS’ COMPENSATION
APPEALS BOARD and )
(W.C.A.B.
No.
DEPARTMENT OF SOCIAL ) RDG
089060)
SERVICES et al.,
Respondents.

)
HENRY L. WILLIAMS, JR.,
Petitioner,
v.
) Ct.App.
3
C051894
WORKERS’ COMPENSATION
APPEALS BOARD and UNITED
(W.C.A.B. Nos.
AIRLINES, )
SFO
0434079,
SFO
0474801)
)
Respondents.

2

---

These consolidated cases present the following question: When a worker
suffers an industrial injury that results in permanent disability, how should the
compensation owed based on the current level of permanent disability be
discounted for either previous industrial injury or nonindustrial disabilities? The
issue was originally settled by this court in Fuentes v. Workers’ Comp. Appeals
Bd. (1976) 16 Cal.3d 1 (Fuentes), but the 2004 omnibus reform of California’s
workers’ compensation scheme created doubt as to whether the apportionment
formula we adopted in Fuentes had been superseded and a different formula
should now be employed. We conclude it has not been superseded and the
Fuentes formula remains the correct one to apply in apportioning compensation
between causes of disability.
FACTUAL AND PROCEDURAL BACKGROUND
These cases arise from five workers’ compensation proceedings with
widely differing facts but two unifying aspects. First, in each the injured worker’s
current permanent disability level could be attributed in part to one or more
previous industrial injuries or to nonindustrial causes. Second, in each the
workers’ compensation judge (WCJ) applied the Fuentes apportionment method,
under compulsion of the Workers’ Compensation Appeals Board’s (Board)
divided en banc decision holding that notwithstanding the 2004 legislation, the
Fuentes method of calculating apportionment was still correct. (See Nabors v.
Piedmont Lumber & Mill Co. (2005) 70 Cal.Comp.Cases 856, 862 (en banc)
(Nabors I).)
Stan Brodie, a firefighter for the Contra Costa County Fire Protection
District, sustained an industrial injury to his back, spine, and right knee in
December 2000 and subsequent cumulative trauma to his back and spine that
resulted in 74 percent permanent disability. Over the previous 30 years of his
career as a firefighter, Brodie had sustained several industrial injuries to the same
3

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body parts for which he was awarded compensation based on a 44.5 percent
permanent disability rating.1 The WCJ awarded him $20,867.50 in compensation
based on the difference between these ratings, 29.5 percent, and the Board denied
reconsideration.
Kenneth Dee Welcher sustained an industrial injury in July 1990 when his
right arm and leg were caught in a conveyor belt. His permanent disability level
was stipulated at 62.5 percent. His current claim arose from cumulative injury to
his right leg sustained as a laborer for Hat Creek Construction, Inc. Welcher had
his right leg amputated below the knee, and the parties stipulated to a 71 percent
permanent disability rating. The WCJ awarded Welcher $3,360 in compensation
based on the difference between these ratings, 8 percent (rounding down), and the
Board denied reconsideration.
Jack Strong, a City and County of San Francisco engineer, suffered a 1995
industrial left knee injury and received a 34.5 percent permanent disability rating.
In 1999, he sustained additional industrial injuries to his left shoulder, left knee,
left ankle, and right wrist, resulting in permanent disability of 42 percent. In 2002,
he sustained a third industrial injury while working for the city, this time to his
back. The parties stipulated that Strong’s overall level of permanent disability was
now 70 percent. Based on evidence from a disability evaluation specialist, the
WCJ determined the current injury caused permanent disability of 10 percent, with
the remaining 60 percent attributable to the previous injuries, and awarded $4,235.
The Board granted reconsideration but thereafter affirmed the award. (Strong v.
City & County of San Francisco (2005) 70 Cal.Comp.Cases 1460 (en banc).)

1
The WCJ disregarded additional industrial injuries to other body parts, as
they did not overlap with the current injuries and thus provided no basis for
apportionment.
4

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Aurora Lopez, a Department of Social Services employee, injured her back
and lower extremities; the parties stipulated she was 100 percent permanently
disabled and stipulated further that 79 percent of this was attributable to the
industrial injury and 21 percent to nonindustrial causes. The WCJ awarded Lopez
permanent disability benefits of $80,910.73, plus a small life pension based on
disability in excess of 70 percent, and the Board denied reconsideration.
Henry L. Williams, Jr., a United Airlines mechanic, injured his lumbar
spine and received a 28 percent permanent disability rating. Thereafter, in 2003
Williams injured his spine again, and the parties stipulated to a 43 percent
permanent disability rating. The WCJ awarded $9,296.25 in permanent disability
benefits based on the difference, 15 percent, and the Board denied reconsideration.
In Brodie v. Workers’ Comp. Appeals Bd., the First District Court of
Appeal, Division Three, granted writ review and annulled the Board’s decision. It
agreed with earlier Court of Appeal decisions from the Fifth District and First
District, Division Two, insofar as they held that the 2004 legislation superseded
Fuentes. (E & J Gallo Winery v. Workers’ Comp. Appeals Bd. (2005) 134
Cal.App.4th 1536, 1548-1550 (Dykes);2 Nabors v. Workers’ Comp. Appeals Bd.
(2006) 140 Cal.App.4th 217, 228 (Nabors II).) As we shall discuss, it disagreed in
other respects, concluding that the correct method for calculating an award was a
third approach different from that adopted either in Fuentes or in Dykes and
Nabors II.

2
Workers’ compensation decisions are often referred to by the name of the
injured worker. E & J Gallo Winery v. Workers’ Comp. Appeals Bd., supra, 134
Cal.App.4th 1536, generally has been referred to as the Dykes decision by courts,
commentators, and practitioners.
5

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In Welcher v. Workers’ Comp. Appeals Bd., the Third District consolidated
the cases of Welcher, Strong, Lopez, and Williams and affirmed, expressly
disagreeing with Dykes and Nabors II and holding, in agreement with the Board
majority in Nabors I, supra, 70 Cal.Comp.Cases at page 862, that the Fuentes
formula was still correct.
We granted review to resolve the split of authority.
DISCUSSION
We take as a given that each injured worker in these cases has a level of
permanent disability and that some but not all of that current level of permanent
disability is properly apportioned to the most recent industrial injury. The
common question we must answer is: How should compensation for that portion
be computed?
I. The Apportionment Problem
California’s workers’ compensation system was established to provide for
the health, safety, and welfare of workers in the event of industrial injury by
“ ‘relieving [them] from the consequences of any injury incurred by employees in
the course of their employment.’ ” (Mathews v. Workmen’s Comp. Appeals Bd.
(1972) 6 Cal.3d 719, 731, fn. 8, quoting Stats. 1917, ch. 586, § 1, p. 832; see also
Claxton v. Waters (2004) 34 Cal.4th 367, 372.)
The panoply of benefits the system provides includes compensation for
permanent disability. “[P]ermanent disability is understood as ‘the irreversible
residual of an injury.’ ” (Kopping v. Workers’ Comp. Appeals Bd. (2006) 142
Cal.App.4th 1099, 1111, quoting 1 Cal. Workers’ Compensation Practice
(Cont.Ed.Bar 4th ed. 2005) § 5.1, p. 276, italics omitted.) “A permanent disability
is one ‘. . . which causes impairment of earning capacity, impairment of the
normal use of a member, or a competitive handicap in the open labor market.’ ”
(State Compensation Ins. Fund v. Industrial Acc. Com. (1963) 59 Cal.2d 45, 52.)
6

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Thus, permanent disability payments are intended to compensate workers for both
physical loss and the loss of some or all of their future earning capacity. (Lab.
Code, § 4660, subd. (a);3 Livitsanos v. Superior Court (1993) 2 Cal.4th 744, 753.)
Permanent disability payments are calculated by first expressing the degree
of permanent disability as a percentage4 and then converting that percentage into
an award based on a table. (§ 4658.) Until April 1972, the table was
straightforward: an injured worker received four weeks of benefits for each
percentage point of disability. (Former § 4658, added by Stats. 1959, ch. 1189,
§ 13, p. 3280; Fuentes, supra, 16 Cal.3d at p. 4.) Thus, for example, a worker
determined to have suffered 10 percent permanent disability would receive 40
weeks of benefits, while one with a 90 percent disability would receive 360 weeks
of benefits.
Employers must compensate injured workers only for that portion of their
permanent disability attributable to a current industrial injury, not for that portion
attributable to previous injuries or to nonindustrial factors. “Apportionment is the
process employed by the Board to segregate the residuals of an industrial injury
from those attributable to other industrial injuries, or to nonindustrial factors, in
order to fairly allocate the legal responsibility.” (Ashley v. Workers’ Comp.
Appeals Bd. (1995) 37 Cal.App.4th 320, 326.) Under the pre-1972 table,
apportionment to previous injuries was relatively straightforward. Because the

3
All further unlabeled statutory references are to the Labor Code.
4
Notably, however, “[t]he percentage level of permanent disability
represents only a point on a relative scale.” (1 Hanna, Cal. Law of Employee
Injuries and Workers’ Compensation (rev. 2d ed. 2007), § 8.02[2], p. 8-6.) Thus, a
rating of 50 percent has no real world significance, other than to indicate that the
injured worker is more disabled than someone with a 45 percent rating and less
disabled than someone with a 55 percent rating.
7

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additional compensation for each additional percentage point of disability was
linear, it mattered not whether one focused on the difference in percent between
the current level of disability and the previous level of disability, or the difference
in dollars between the payout at the current level of disability and the payout at the
previous level of disability; either method of subtraction would lead to the same
current award.
However, in 1971 the Legislature amended the table to create a sliding
scale of benefits and more generously compensate for more severe disabilities.
Under the new table, benefits rose not linearly but exponentially. Thus, for
example, under the revised table a worker with a 10 percent disability would
receive approximately three weeks of benefits for each percent of disability (for an
award of 30.25 weeks), while a worker with a 90 percent disability would receive
approximately six weeks of benefits for each percent of disability (for an award of
541.25 weeks). (Former § 4658, Stats. 1971, ch. 1750, § 5, p. 3776; Fuentes,
supra, 16 Cal.3d at p. 4.)
This amendment created a new apportionment problem in situations where
a previously disabled worker suffered a new injury. Consider again the worker
who was already 10 percent disabled, but after the new injury was 90 percent
disabled. Under the new tables, the difference between the award for a 90 percent
disability and the award for a 10 percent disability was no longer equal to the
award for an 80 percent disability, the difference between these two disability
levels.5 Thus, it mattered whether one either (1) calculated the percentage of

5
Subsequent amendments have created even starker differences in the
compensation for different disability levels. Injured workers now receive three
weeks of payments for each disability percent below 10 percent, but 16 weeks for
each percent above 70 percent (§ 4658, subd. (d)(1)); the amount of the weekly
payments rises once various threshold percentages (15, 25, and 70) are reached

(footnote continued on next page)
8

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disability attributable to the new injury by subtracting the old rating from the new
rating, then consulted the table for the award due this difference (an approach
dubbed “formula A” (Fuentes, supra, 16 Cal.3d at p. 5)), or (2) consulted the table
for the award due at the new disability rating, then subtracted from that the amount
that would have been awarded under the old disability rating (an approach dubbed
“formula C” (ibid.)).6
II. Fuentes v. Workers’ Compensation Appeals Board
This court resolved the apportionment problem in Fuentes, concluding
based on statutory interpretation that the formula A approach was correct.
Fuentes, the injured worker, was 58 percent permanently disabled, with 33.75
percent of this due to industrial causes and the rest attributable to a nonindustrial
disability. In deciding how to determine compensation, we interpreted former
section 4750, which provided: “An employee who is suffering from a previous
permanent disability or physical impairment and sustains permanent injury
thereafter shall not receive from the employer compensation for the later injury in
excess of the compensation allowed for such injury when considered by itself and
not in conjunction with or in relation to the previous disability. [¶] The employer

(footnote continued from previous page)
(§ 4453, subd. (b)); and a life pension is required for permanent disabilities of 70
percent or greater (§ 4659).
6
Under formula B, discussed in Fuentes, supra, 16 Cal.3d at page 5, one
consults the table for the number of weeks of statutory benefits due at the new
disability rating (say, the weeks of benefits for a 90 percent disability in our 90/10
hypothetical) and then multiplies this figure by the portion of current disability
attributable to the new injury (in the hypothetical, (90-10)/90 = 88.9 percent).
Justice Mosk, the lone dissenter in Fuentes, advocated formula B’s adoption. (Id.
at p. 9 (dis. opn. of Mosk, J.).) No party in these cases prefers formula B; instead,
as in Fuentes, the employers and insurers argue for formula A, while the workers
argue for one version or another of formula C.
9

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shall not be liable for compensation to such an employee for the combined
disability, but only for that portion due to the later injury as though no prior
disability or impairment had existed.” (Former § 4750, added by Stats. 1945, ch.
1161, § 1, p. 2209, italics added.) This language, we reasoned, required the
current industrial portion of the disability to be considered in isolation, wholly
independent of any nonindustrial or previous industrial disability. (Fuentes,
supra, 16 Cal.3d at pp. 5-6.) Thus, a worker with a 60 percent industrial
disability, 30 percent current and 30 percent preexisting, and a worker with a 60
percent current disability, 30 percent industrial and 30 percent nonindustrial,
should each be treated the same as a worker with a 30 percent industrial disability.
We described the policy behind this section and rule as “encourag[ing] employers
to hire the handicapped” (id. at p. 5),7 because an employer who did so would not
have to fear greater compensation costs if a worker with a preexisting disability
were to be injured. Accordingly, we adopted formula A, which alone among the
proposed formulas apportioned to every current industrial disability of a given
level the same compensation, irrespective of previous or nonindustrial disabilities.
(Fuentes, at p. 6.)
Fuentes argued that this rule was inconsistent with the revised section
4658’s adoption of progressive sliding-scale payments. We disagreed, explaining
that section 4658 should be read as “a general provision establishing the amount of
compensation benefits for a permanent disability, and section 4750 . . . as a
specific rule limiting the benefits available in those cases where the employee has
a preexisting permanent disability and thereafter sustains a further permanent

7
As an earlier court once put it, former section 4750 was intended to remove
any employer excuse for “refus[ing] to hire one-armed, one-legged, or one-eyed
men.” (Wolski v. Industrial Accident Com. (1945) 70 Cal.App.2d 427, 432.)
10

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injury.” (Fuentes, supra, 16 Cal.3d at p. 7.) We also rejected the argument that
section 3202, which requires that the workers’ compensation statutes be read
liberally in favor of extending benefits to injured workers (see Claxton v. Waters,
supra, 34 Cal.4th at p. 373), required a different result; where the Legislature’s
intent in enacting a particular statute is clear, section 3202’s general rule of liberal
construction will not compel a contrary result. (Fuentes, at p. 8.)
Fuentes involved apportionment between industrial and nonindustrial
disabilities, but nothing in the majority opinion suggested former section 4750
might be read differently when apportioning between a current industrial disability
and a previous one. Thereafter, the courts and the Board routinely applied formula
A in apportioning between industrial disabilities as well. (E.g., Department of
Education v. Workers’ Comp. Appeals Bd. (1993) 14 Cal.App.4th 1348, 1353;
Ramirez v. Workers’ Comp. Appeals Bd. (2001) 66 Cal.Comp.Cases 1128, 1129-
1131.)
III. Senate Bill No. 899 and Its Application to the Apportionment Problem
So the law stood, settled, for 28 years. Then in 2004, the Legislature
enacted omnibus reform of the workers’ compensation system. Of significance
here, Senate Bill No. 899 (2003-2004 Reg. Sess.) overhauled the statutes
governing apportionment, repealing both section 4663 and section 4750—the
statute we relied on in Fuentes, supra, 16 Cal.3d 1, as compelling adoption of
formula A—and enacting a revised section 4663 and new section 4664. (Stats.
2004, ch. 34, §§ 33 [repealing former § 4663], 34 [revising § 4663], 35 [adding
new § 4664], 37 [repealing former § 4750].) These changes raised the question:
Is the Fuentes formula A approach still valid?
The Board and various Courts of Appeal have reached three different
conclusions. Some, like the Court of Appeal in Welcher and the Board majority,
11

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hold that formula A is still correct. (Nabors I, supra, 70 Cal.Comp.Cases at p. 862
(en banc).) Others reason that by repealing section 4750, Senate Bill No. 899
(2003-2004 Reg. Sess.) effectively superseded Fuentes, and formula C is now
correct. (Dykes, supra, 134 Cal.App.4th at p. 1553; Nabors II, supra, 140
Cal.App.4th at p. 228 [following Dykes]; Nabors I, supra, at p. 864 (dis. opn. of
Comr. Caplane).) The Court of Appeal in Brodie adopted a third approach,
holding that while Fuentes has been superseded, the correct formula is a
modification of formula C in which one subtracts not the actual award previously
paid out in old dollars, but the award for that previous percentage disability that
would be due today in current dollars.8
Having reviewed both the language of Senate Bill No. 899 (2003-2004
Reg. Sess.) and its legislative history, we conclude formula A, the formula
approved by Fuentes, remains the law.
In interpreting the new provisions enacted by Senate Bill No. 899 (2003-
2004 Reg. Sess.), our goal is to divine and give effect to the Legislature’s intent.
(Elsner v. Uveges (2004) 34 Cal.4th 915, 927.) We begin with a comparison and
analysis of the language of the old and new statutes. (See DuBois v. Workers’
Comp. Appeals Bd. (1993) 5 Cal.4th 382, 387.) Former section 4663 provided
only limited apportionment where an industrial injury aggravated a preexisting
disease or condition: “In case of aggravation of any disease existing prior to a
compensable injury, compensation shall be allowed only for the proportion of the
disability due to the aggravation of such prior disease which is reasonably

8
In dissent in Nabors I, then Board Chairman Rabine advocated a fourth
approach, the formula B approach described in Fuentes, supra, 16 Cal.3d at
page 5. (Nabors I, supra, 70 Cal.Comp.Cases at p. 864 (dis. opn. of Chairman
Rabine).)
12

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attributed to the injury.” (Former § 4663, added by Stats. 1937, ch. 90, § 4663,
p. 284 and repealed by Stats. 2004, ch. 34, § 33.) In contrast, revised section
4663, subdivision (a) provides: “Apportionment of permanent disability shall be
based on causation.” Subdivision (b) requires physicians preparing permanent
disability reports to address causation. Subdivision (c) requires in relevant part
that permanent disability reports “include an apportionment determination. A
physician shall make an apportionment determination by finding what
approximate percentage of the permanent disability was caused by the direct result
of injury arising out of and occurring in the course of employment and what
approximate percentage of the permanent disability was caused by other factors
both before and subsequent to the industrial injury, including prior industrial
injuries.” (§ 4663, subd. (c).)
Building on this principle of apportionment according to cause, section
4664, subdivision (a) provides: “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.” Further, “[i]f the applicant has received a
prior award of permanent disability, it shall be conclusively presumed that the
prior permanent disability exists at the time of any subsequent industrial industry.
This presumption is a presumption affecting the burden of proof.” (Id., subd. (b).)
The remainder of section 4664 sets limits on cumulative permanent disability
awards.
While section 4663, subdivision (a) authorizes apportionment by causation,
and section 4664, subdivision (a) confines an employer’s liability to the
percentage of disability directly caused by the current industrial injury, neither
provision specifies how they are to be used in conjunction with section 4658, the
table that converts a disability percentage into an actual award. Certainly nothing
in current section 4663 or section 4664 expressly requires formula A, B, C,
13

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modified C, or any other approach to calculating compensation. Nor does
anything in the language implicitly do so. We thus agree with the Courts of
Appeal in Brodie and Dykes insofar as they recognized that “[i]n adopting Sen[ate]
Bill 899, the Legislature did not outline any particular method for apportioning
either a permanent disability award or a life pension.” (Dykes, supra, 134
Cal.App.4th at p. 1552.) Contrary to the arguments of both sides, the plain
language of these provisions considered in isolation does not resolve the problem.
However, as we shall explain, neither does the repeal of section 4750 (which did
implicitly compel application of formula A) now require rejection of that formula.
The answer to the problem is more readily apparent when we reframe the
question and ask: By adopting new and different language governing
apportionment, did the Legislature intend to adopt a new and different formula?
As we have explained, “[w]e do not presume that the Legislature intends, when it
enacts a statute, to overthrow long-established principles of law unless such
intention is clearly expressed or necessarily implied.” (People v. Superior Court
(Zamudio) (2000) 23 Cal.4th 183, 199; accord, Regency Outdoor Advertising, Inc.
v. City of Los Angeles (2006) 39 Cal.4th 507, 526.) We conclude the answer is no
and the formula we approved in Fuentes still applies. To explain why this is so,
we explore the nature of apportionment and the problem the Legislature was trying
to solve.
Until 2004, former section 4663 and case law interpreting the workers’
compensation scheme closely circumscribed the bases for apportionment.
Apportionment based on causation was prohibited. (Pullman Kellogg v. Workers’
Comp. Appeals Bd. (1980) 26 Cal.3d 450, 454 [“It is disability resulting from,
rather than a cause of, a disease which is the proper subject of apportionment;
‘pathology’ may not be apportioned”].) Instead, a disability resulting from
industrial and nonindustrial causes was apportionable “only if the [B]oard finds
14

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that part of the disability would have resulted from the normal progress of the
underlying nonindustrial disease.” (Ibid.) This rule left employers liable for any
portion of a disability that would not have occurred but for the current industrial
cause; if the disability arose in part from an interaction between an industrial cause
and a nonindustrial cause, but the nonindustrial cause would not alone have given
rise to a disability, no apportionment was to be allowed. (Ballard v. Workmen’s
Comp. App. Bd. (1971) 3 Cal.3d 832, 837 [where an industrial injury “lights up or
aggravates a previously existing [nonindustrial] condition resulting in disability,
liability for the full disability without proration is imposed upon the employer”];
Gay v. Workers’ Comp. Appeals Bd. (1979) 96 Cal.App.3d 555, 562 [“In
apportioning under [former] Labor Code section 4663 it must be shown that the
apportioned percentage of nonindustrial permanent disability would have resulted
. . . even in [the] absence of the industrial injury”].)
Under these rules, in case after case courts properly rejected apportionment
of a single disability with multiple causes. (See, e.g., Pullman Kellogg v.
Workers’ Comp. Appeals Bd., supra, 26 Cal.3d at pp. 454-455 [no apportionment
of lung injury between industrial inhalation of toxic fumes and nonindustrial pack-
a-day smoking habit]; Zemke v. Workmen’s Comp. App. Bd. (1968) 68 Cal.2d 794,
796-799 [no apportionment of back disability between industrial back injury and
nonindustrial arthritis]; Berry v. Workmen’s Comp. App. Bd. (1968) 68 Cal.2d 786,
788-790 [no apportionment of knee disability where industrial knee injury
triggered “advancement” of previously dormant nonindustrial fungal disease];
Idaho Maryland etc. Corp. v. Ind. Acc. Com. (1951) 104 Cal.App.2d 567 [no
apportionment between industrial exposure to mine gas and nonindustrial latent
heart disease].) In short, so long as the industrial cause was a but-for proximate
cause of the disability, the employer would be liable for the entire disability,
without apportionment.
15

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While former section 4663 was interpreted as constraining employers in
their ability to show apportionment based on nonindustrial causes, former section
4750 was interpreted as granting employees wide latitude to disprove
apportionment based on prior permanent disability awards by demonstrating that
they had substantially rehabilitated the injury. (See, e.g., National Auto. & Cas.
Ins. Co. v. Industrial Acc. Com. (1963) 216 Cal.App.2d 204.) In National Auto.,
the employee sustained a back injury and was rated 65 percent permanently
disabled. He later sustained a second back injury and was rated 78 percent
permanently disabled, but introduced medical testimony, accepted by the Board’s
predecessor, the Industrial Accident Commission, that he had rehabilitated his
injury to the point that he was only 39 percent disabled immediately before the
second injury. The Court of Appeal affirmed an award of 78 – 39 = 39 percent
disability, not the 78 – 65 = 13 percent the insurer argued for, concluding that
former section 4750 permitted proof of rehabilitation. (National Auto., at pp. 207-
212; see also Mercier v. Workers’ Comp. Appeals Bd. (1976) 16 Cal.3d 711, 716,
fn. 2 [approving rehabilitation principle in dicta]; Robinson v. Workers’ Comp.
Appeals Bd. (1981) 114 Cal.App.3d 593 [rejecting any apportionment under
former § 4750, despite prior permanent disability award, where evidence showed
full rehabilitation between first and second injury].)
The plain language of new sections 4663 and 4664 demonstrates they were
intended to reverse these features of former sections 4663 and 4750. (Kleeman v.
Workers’ Comp. Appeals Bd. (2005) 127 Cal.App.4th 274, 284-285 & fns. 25-27.)
Thus, new sections 4663, subdivision (a) and 4664, subdivision (a) eliminate the
bar against apportionment based on pathology and asymptomatic causes (E.L.
Yeager Construction v. Workers’ Comp. Appeals Bd. (2006) 145 Cal.App.4th 922,
926-927; Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 617 (en banc)),
while section 4664, subdivision (b) was intended to reverse the rule based on
16

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former section 4750 that permitted an injured employee to show rehabilitation of
an injury for which a permanent disability award had already been issued
(Kopping v. Workers’ Comp. Appeals Bd., supra, 142 Cal.App.4th at p. 1115;
Sanchez v. County of Los Angeles (2005) 70 Cal.Comp.Cases 1440, 1452 (en
banc)).
This explains the Legislature’s purpose in adopting a revised section 4663
and a new section 4664. Further, one can see why it was necessary to repeal
former sections 4663 and 4750. These provisions, as interpreted by the courts,
were inconsistent with the new regime of apportionment based on causation, as
well as the conclusive presumption that previous permanent disability still existed
for apportionment purposes.9 (§§ 4663, subd. (a), 4664, subds. (a), (b).) Former
section 4750 required consideration of the new injury “by itself and not in
conjunction with or in relation to the previous disability or impairment” and
further called for compensation for the later injury to be determined “as though no
prior disability or impairment had existed.” But under Senate Bill No. 899 (2003-
2004 Reg. Sess.), the 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, not
disregard of them. Thus, repeal of section 4750 was necessary to effect the
Legislature’s purposes in adopting a causation regime.

9
As previously noted, former section 4750 had been interpreted as allowing
workers’ compensation judges to disregard a previous disability or impairment in
making apportionment decisions where the applicant proved rehabilitation, a rule
squarely at odds with new section 4664, subdivision (b).
17

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Given that repeal of section 4750 was necessary to carry out the
Legislature’s intended switch to apportionment by causation, and that intended
switch alone provides a sufficient explanation for the repeal, it is unnecessary to
impute to the Legislature a further intent to also change the long-settled method
for computing compensation awards in order to explain its actions. Occam’s
razor—avoid hypothesizing complicated explanations when a simpler one is
available—applies here.10
However, because the plain language of the current sections 4663 and 4664
and the repeal of section 4750 do not alone conclusively repudiate any intent to
change how disability percentages are converted to compensation awards, we
consider as well the legislative history. If the Legislature had intended a departure
from formula A, one would expect to find some trace of this intent in the
legislative history, just as the legislative history explicitly identifies more than two
dozen other intended reforms enacted by Senate Bill No. 899 (2003-2004 Reg.
Sess.), including numerous intended changes to the apportionment scheme. As the
facts of these five consolidated cases demonstrate, a change from formula A to
formula B or either version of formula C would have dramatic fiscal consequences
for employers and insurers (as well as, of course, for employees).11 Such a
change, if intended, would likely have been remarked upon.

10
“[T]he principle of Occam’s razor—that the simplest of competing theories
should be preferred over more complex and subtle ones—is as valid juridically as
it is scientifically.” (Swann v. Olivier (1994) 22 Cal.App.4th 1324, 1329, fn.
omitted, disapproved on another ground in Alcaraz v. Vece (1997) 14 Cal.4th
1149, 1166.)
11
For example, under formula A, Kenneth Dee Welcher received $3,360, but
he would be entitled to nearly $38,000 plus a life pension under modified formula
C or nearly $68,000 plus a life pension under the original formula C. Under
formula A, Stan Brodie was awarded just over $20,000, while under modified

(footnote continued on next page)
18

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Instead, one hears only silence. The Senate Rules Committee’s bill
summary exhaustively catalogues the changes wrought by Senate Bill No. 899
(2003-2004 Reg. Sess.) and highlights a series of intended changes in the
apportionment rules, the very changes we have already discussed: the bill would
“(24) replace present law on apportionment with [a] statement that apportionment
of permanent disability is based on causation; (25) require physicians evaluating
permanent disability to assess percentage of disability due to work; (26) make[]
employer liable only for portion of disability directly caused by injury, [and]
restrict[] accumulated percentage of disability for any body region to 100% over
lifetime.” (Sen. Rules Com., Off. of Sen. Floor Analyses, Conf. Rep. No. 1 on
Sen. Bill No. 899 (2003-2004 Reg. Sess.) as amended Apr. 15, 2004, p. 3.) The
summary highlights the Legislature’s intent to change how one arrives at the
percentage disability for which an employer or insurer is liable, but makes no
mention of any intent to change how that percentage, once arrived at, is to be
converted to an award. The same is true of the analyses of the bills that fed into
Senate Bill No. 899; we find in our review of them no mention of any intent to
alter the approach to calculating awards based on the percentage attributable to a
current industrial injury.12 This silence offers no reason to believe the Legislature
intended to abandon the settled application of formula A.

(footnote continued from previous page)
formula C he would receive $67,700 plus a life pension, or more than $114,000
over his remaining life expectancy. Under formula A, Jack Strong received
$4,325, while under the two versions of formula C he would receive between
$35,000 and $40,000 plus a life pension, or roughly $59,000 over his life
expectancy.
12
Senate Bill No. 899 (2003-2004 Reg. Sess.) started out as a minor bill
designed to change one aspect of workers’ compensation wholly unrelated to
apportionment. (See Sen. Com. on Labor and Industrial Relations, Analysis of

(footnote continued on next page)
19

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Several additional considerations buttress this conclusion. First, as Justice
Sims noted in his concurring opinion in Welcher, Senate Bill No. 899 (2003-2004
Reg. Sess.) was an urgency measure designed to alleviate a perceived crisis in
skyrocketing workers’ compensation costs. (See Stats. 2004, ch. 34, § 49 [bill
urgency measure needed “to provide relief to the state from the effects of the
current workers’ compensation crisis at the earliest possible time”]; Assem.
Republican Caucus, Analysis of Sen. Bill No. 899 (2003-2004 Reg. Sess.) as
amended Apr. 15, 2004, p. 6 [listing as first argument in support of the bill the
need to reduce the highest state workers’ compensation costs in the nation];
Assem. Com. on Insurance, Analysis of Sen. Bill No. 899 (2003-2004 Reg. Sess.)
as proposed to be amended July 9, 2003, p. 4 [identifying “crisis” linked to
“skyrocketing costs”].) This makes it especially unlikely the Legislature would

(footnote continued from previous page)
Senate Bill No. 899 (2003-2004 Reg. Sess.) as amended Apr. 21, 2003.) It was
but one of 20 different bills to reform workers’ compensation passed out of the
Senate or Assembly in 2003. (Sen. Rules Com., Off. of Sen. Floor Analyses, Rep.
on Sen. Bill No. 899 (2003-2004 Reg. Sess.) as amended July 14, 2003, pp. 2-3.)
Senate and Assembly leaders responded to this plethora of overlapping measures
by submitting them to a joint conference to digest the bills and incorporate their
provisions into a single omnibus reform measure. (Assem. Com. on Insurance,
Analysis of Sen. Bill No. 899 (2003-2004 Reg. Sess.) as proposed to be amended
July 9, 2003, p. 6.)

Reform of the apportionment process was originally proposed as part of
Assembly Bill No. 1481 (2003-2004 Reg. Sess.), Assembly Bill No. 1579 (2003-
2004 Reg. Sess.), and Senate Bill No. 714 (2003-2004 Reg. Sess.). Even in the
text and committee analyses of these other measures, however, one finds no
reflection of an intent to override the settled formula A approach and substitute a
different method. (See, e.g., Assem. Com. on Insurance, Analysis of Assem. Bill
No. 1481 (2003-2004 Reg. Sess.) as introduced Feb. 22, 2003, pp. 1-2; Sen. Com.
on Labor and Industrial Relations, Analysis of Assem. Bill No. 1579 (2003-2004
Reg. Sess.) as proposed to be amended July 9, 2003, p. 4; Sen. Com. on Labor and
Industrial Relations, Analysis of Sen. Bill No. 714 (2003-2004 Reg. Sess.) as
amended Apr. 21, 2003, pp. 1-2.)
20

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intend to adopt a new formula giving rise to significant increases in awards
without saying so much as a word in either the text of the statutes or the analyses
of the proposed changes.13
We note as well that in the post-2004 world of apportionment by causation,
formula C, the formula advocated by the injured workers and adopted in modified
form by the Court of Appeal in Brodie, can no longer logically be applied to all
cases.

13
While it is true, as the injured workers argue, that some aspects of Senate
Bill No. 899 (2003-2004 Reg. Sess.) had the effect of expanding worker benefits
(see §§ 139.48 [funding small employer worksite accommodations of disabled
workers], 4658, subd. (d)(1) [increasing benefits for workers with 70 percent or
greater disability], 4658, subd. (d)(2) [increasing benefits for disabled workers
denied prompt return to work], 5402, subd. (c) [providing additional medical
benefits]), the modifications to apportionment did not. These included a
requirement that doctors include apportionment discussions in their reports
(§ 4663, subds. (b), (c)), a prohibition against avoiding apportionment by proving
that a prior injury had been rehabilitated (§ 4664, subd. (b)), a cap on awards
based on injuries to any one body part (§ 4664, subd. (c)(1)), and a reversal of the
case-law-imposed prohibition against apportionment based on cause and
corresponding expansion of the range of bases that would trigger apportionment
(§ 4663, subd. (a)).

Moreover, the benefit-expanding modifications the injured workers
highlight were mentioned in Senate Bill No. 899’s legislative history. (Sen. Rules
Com., Off. of Sen. Floor Analyses, Conf. Rep. No. 1 on Sen. Bill No. 899 (2003-
2004 Reg. Sess.) as amended Apr. 15, 2004, pp. 2 [item 16: § 5402 medical
benefits; item 21: increased benefits for those with 70 percent or greater
disability], 3 [item 3: § 139.48 accommodation funding], 6 [item 14: § 5402
medical benefits], 7 [items 17-18: additional benefits under § 4658]; Assem.
Republican Caucus, Analysis of Sen. Bill No. 899 (2003-2004 Reg. Sess.) as
amended Apr. 15, 2004, p. 7 [§ 4658, subd. (d)(2) return-to-work incentives,
§ 5402 medical benefits].) They provide no support for the notion that the
Legislature would, sub silentio, change another part of the compensation scheme
with potential fiscal consequences dramatically larger than many of the changes
highlighted in the bill analyses.
21

---

The intuitive appeal of formula C is clearest in a case of two sequential
industrial injuries. Assume a first injury that results in 30 percent permanent
disability, followed by a second overlapping injury that results in a combined 60
percent permanent disability. Under formula C, though the employer is still only
liable for the 30 percent increase in disability, the award is computed based on the
compensation for the range of 30 percent disability to 60 percent disability, rather
than the range of 0 percent to 30 percent. This has the salutary consequence of
ensuring that a 60 percent permanently disabled employee always receives the full
compensation indicated by section 4658 for 60 percent permanent disability,
irrespective of whether that disability arises from one injury, two injuries, or
many.14
In cases of apportionment for causation, however, the notion of a “first” 30
percent and a “second” 30 percent will frequently not apply. Where an industrial
cause and nonindustrial cause simultaneously interact and are equally responsible
for a 60 percent injury, there is no first 30 percent or second 30 percent. There are
two possible resolutions to this conundrum, each problematic. Either (1) the
original or Brodie-modified formula C applies here as well, despite there being no
logic or equity to making the employer liable for the more expensive second 30
percent, the range from 30 to 60 percent; or (2) formula C does not apply, in which
case either formula B applies, or perhaps formula A still applies, despite the fact

14
While formula C ensures that all employees with a certain level of
permanent disability receive the same compensation, formula A ensures that all
employers responsible for a certain level of permanent disability pay the same
compensation. Thus, each formula ensures equality—just equality from a
different perspective, one employee-based and the other employer-based. Formula
B ensures neither equality, but does arrive at a rough compromise between the two
perspectives.
22

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that nothing in the statutes suggests the Legislature intended a complicated partial
override of the old rule and adoption of a new formula only for a certain subset of
apportionment cases.
Finally, the Board has extensive expertise in interpreting and applying the
workers’ compensation scheme. Consequently, we give weight to its
interpretations of workers’ compensation statutes unless they are clearly erroneous
or unauthorized. (Honeywell v. Workers’ Comp. Appeals Bd. (2005) 35 Cal.4th
24, 34; Judson Steel Corp. v. Workers’ Comp. Appeals Bd. (1978) 22 Cal.3d 658,
668-669.) The Board concluded in Nabors I, supra, 70 Cal.Comp.Cases at page
862, that Senate Bill No. 899 (2003-2004 Reg. Sess.) did not overrule use of
formula A and that that formula should continue to be employed. The Board’s
conclusion was not clearly erroneous and is entitled to deference.
Those Courts of Appeal reaching the opposite conclusion—the Fifth
District in Dykes; the First District, Division Two, in Nabors II; and the First
District, Division Three, in Brodie—reached that conclusion through a common
line of reasoning. First, the repeal of section 4750 demonstrated a legislative
intent to change the law of apportionment. Second, the new language of sections
4663 and 4664 does not dictate any particular approach. Third, section 3202, the
statutory rule of liberality, requires that uncertainties be resolved in favor of an
extension of fully compensatory benefits. Because the new statutory language is
ambiguous and grants some measure of latitude, these courts reason, each settles
on an original or modified version of formula C, the formula most generous to
injured workers. (Dykes, supra, 134 Cal.App.4th at pp. 1550-1553; Nabors II,
supra, 140 Cal.App.4th at pp. 223-225, 228.)
The problem with these analyses is in the very first step. It is true that
wholesale changes in language generally signify an intent to change existing law.
(See People v. Mendoza (2000) 23 Cal.4th 896, 916.) As we have discussed, the
23

---

Legislature did intend to significantly alter the law of apportionment—just not this
aspect of the law of apportionment, the formula for computing an apportioned
award after the employer/insurer’s percentage liability has been determined.
Given the apparent absence of any legislative intent to change the law in
this regard, we have no occasion to resort to reliance on the statutory rule of
liberality as the Courts of Appeal did. Section 3202 is a tool for resolving
statutory ambiguity where it is not possible through other means to discern the
Legislature’s actual intent. It is of little or no use here, where other tools permit us
to divine that the Legislature did not intend to amend settled law and alter the
status quo concerning the appropriate formula. (See Fuentes, supra, 16 Cal.3d at
p. 8.)
In the end, the relevant portions of Senate Bill No. 899 (2003-2004 Reg.
Sess.) and the history behind them reflect a clear intent to charge employers only
with that percentage of permanent disability directly caused by the current
industrial injury. The tables in section 4658 are for compensating the current
injury only, not the totality of an injured worker’s disabilities; a 30 percent
disability is a 30 percent disability, not a 90 minus 60 percent disability or a 60
minus 30 percent disability. The changes wrought by Senate Bill No. 899 affect
how one goes about identifying the percentage of permanent disability an
employer is responsible for, but not how one calculates the compensation due for
that disability once a percentage is determined. We disapprove E & J Gallo
Winery v. Workers’ Comp. Appeals Bd., supra, 134 Cal.App.4th 1536 [Dykes],
and Nabors v. Workers’ Comp. Appeals Bd., supra, 140 Cal.App.4th 217, to the
extent they are inconsistent with this opinion.
24

---

DISPOSITION
For the foregoing reasons, the Court of Appeal’s judgment in Welcher is
affirmed and the Court of Appeal’s judgment in Brodie is reversed and remanded
for further proceedings consistent with this opinion.

WERDEGAR, J.
WE CONCUR:
GEORGE, C. J.
KENNARD, J.
BAXTER, J.
CHIN, J.
MORENO, J.
CORRIGAN, J.

25

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See last page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Brodie v. Workers’ Compensation Appeals Board
__________________________________________________________________________________

Unpublished Opinion

Original Appeal
Original Proceeding
Review Granted XXX 142 Cal.App.4th 685
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S146979 & S147030
Date Filed: May 3, 2007
__________________________________________________________________________________

Court:

County:
Judge:

__________________________________________________________________________________

Attorneys for Appellant:

Gearheart & Otis and Mark E. Gearheart for Petitioner Stan Brodie.

Gearheart & Otis and Roy Oits for Petitioner Jack Strong.

DuRard, McKenna & Borg and Susan R. Borg for Petitioner Henry L. Williams, Jr.

Leep & Tescher and M. K. Tescher, Jr., for Petitioners Kenneth Dee Welcher and Aurora Lopez.

David J. Froba for California Applicants’ Attorneys Association as Amicus Curiae on behalf of Petitioner
Stan Brodie.

__________________________________________________________________________________

Attorneys for Respondent:

Thomas, Lyding, Cartier & Gaus, William R. Thomas and Douglas E. Starns for Respondent Contra Costa
County Fire Protection District.

Dennis J. Herrera, City Attorney, Rebecca Liu, Danny Chou and M. Diane Weber, Deputy City Attorneys,
for Respondent City and County of San Francisco.

Robert W. Daneri, Suzanne Ah Tye and David M. Goi for Respondents California Department of Social
Services/IHSS, State Compensation Insurance Fund, Adjusting Agent and Hat Creek Construction, Inc.

Laughlin, Falbo, Levy & Moresi, Shari E. Levy; Grancell, Lebovitz, Stander, Barnes & Reubens and
Lawrence Kirk for Respondent United Airlines.

No appearance for Respondent Workers’ Compensation Appeals Board.

---

Page 2 – S146979 – counsel continued

Attorneys for Respondent:

Law Offices of Saul Allweiss, Michael A. Marks; Finnegan, Marks, Hampton & Theofel and Ellen Sims
Langille for California Workers’ Compensation Institute as Amicus Curiae on behalf of Respondents.

Sedgwick, Detert, Moran & Arnold and Christine J. Imre for California Chamber of Commerce,
Agricultural Council of California, Association of California Insurance Companies, Associated General
Contractors of California, California Business Roundtable, California Farm Bureau Federation, California
Grocers Association, California Hotel and Lodging Association, California Restaurant Association,
California Retailers Association, California Business Properties Association, California Manufacturers &
Technology Association, National Federation of Independent Business Legal Foundation, Western Growers
Association and WSPA as Amici Curiae on behalf of Respondents.

Raymond G. Fortner, Jr., County Counsel (Los Angeles), Patrick A. Wu, Assistant County Counsel, and
Leah D. Davis, Deputy County Counsel, for County of Los Angeles as Amicus Curiae on behalf of
Respondents.

Jones Day, Ellwood Lui, Peter E. Davids; Raymond G, Fortner, Jr., County Counsel (Los Angeles), Charles
Safer, Assistant County Counsel, and Rosanne Wong, Deputy County Counsel, for Los Angeles County
Metropolitan Transportation Authority as Amicus Curiae on behalf of Respondents.

27

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Counsel who argued in Supreme Court (not intended for publication with opinion):

Mark E. Gearheart
Gearheart & Otis
367 Civic Drive, Suite 17
Pleasant Hill, CA 94523
(925) 671-9777

Susan R. Borg
DuRard, McKenna & Borg
2015 Pioneer Court, Suite A
San Mateo, CA 94403-1736
(650) 348-6741

David J. Froba
4428 Bluff Creek Drive
Modesto, CA 95355
(209) 521-7265

Danny Chou
Deputy City Attorney
1390 Market Street, Suite 250
San Francisco, CA 94102-5408
(415) 554-4655

Elwood Lui
Jones Day
555 South Flower Street, Fiftieth Floor
Los Angeles, CA 90071-2300
(213) 489-3939

28

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Opinion Information

Date:	Docket Number:
Thu, 05/03/2007	S146979

Disposition
May 3 2007	Opinion: Affirmed in part/reversed in part

Dockets
Sep 29 2006	Petition for review filed   Contra Costa County Fire Protection District, Respondent by Douglas E. Starns of Thomas, Lyding, Cartier, & Gaus, LLP, retained counsel
Sep 29 2006	Record requested
Oct 6 2006	Received Court of Appeal record   accordian file
Oct 13 2006	Answer to petition for review filed   Stan Brodie, respondent by Mark E. Gearheart, counsel
Oct 18 2006	Answer to petition for review filed   Respondent, W.C.A.B. by counsel, Neil P. Sullivan
Nov 15 2006	Petition for review granted (civil case)   Votes: George, C. J., Kennard, Baxter, Werdegar, Chin, Moreno and Corrigan, JJ.
Nov 28 2006	Certification of interested entities or persons filed
Dec 14 2006	Opening brief on the merits filed   Respondent, Contra Costa County Fire Protection District. by counsel, Douglas E. Starns.
Jan 4 2007	Filed:   Joint motion of petitioner and respondents for calendar preference. attorneys: Mark E. Gearheart, Douglas E. Starns, and Neil P. Sullivan
Jan 4 2007	Certification of interested entities or persons filed   Attorney Mark E. Gearheart, for Petitioner, Brodie.
Jan 10 2007	Answer brief on the merits filed   Petitioner, Stan Brodie by counsel, Mark E. Gearheart.
Jan 17 2007	Order filed   The motion for calendar preference (Cal. Rules of Court, rule 8.240) in Brodie v. Workers' Compensation Appeals Board, S146979, filed by petitioner Stan Brodie and respondents Workers' Compensation Appeals Board and the Contra Costa Fire Protection District, is granted. Oral argument in one or both of Brodie and the related matter Welcher v. Workers' Compensation Appeals Board, S147030, will be scheduled as soon as is consistent with (1) attention to matters entitled to greater preference by law and (2) application of those provisions of the Internal Operating Practices and Procedures of the California Supreme Court that may necessarily affect scheduling of the case for oral argument (see Supreme Ct. Internal Operating Practices & Procedures, sections V, VI). Moreno, J., was absent and did not participate.
Jan 25 2007	Motion filed (non-AA)   to consolidate cases ( with S147030 ) Petitioner, Stan Brodie by counsel, Mark E. Gearheart.
Feb 13 2007	Received application to file Amicus Curiae Brief   California Applicants' Attorneys Association in support of Petitioner ( Brodie). by counsel, David J. Froba.
Feb 14 2007	Case consolidated with:   Welch v. W.C.A.B. (S147030). (S146979) STAN BRODIE, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD, Respondent; CONTRA COSTA COUNTY FIRE PROTECTION DISTRICT, Respondent. (S147030) KENNETH DEE WELCHER, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD, Respondent; HAT CREEK CONSTRUCTION INC., Real Party in Interest. The above-entitled cases are consolidated.
Feb 14 2007	Permission to file amicus curiae brief granted   The application of California Applicants' Attorneys Assoc. for permission to file an amicus curiae brief in support of petitioner, Stan Brodie, is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Feb 14 2007	Amicus curiae brief filed   California Applicants' Attorneys Assoc. in support of petitioner, Stan Brodie. by counsel, David J. Froba.
Feb 22 2007	Received application to file Amicus Curiae Brief   of County of Los Angeles and brief supports; Hat Creek Constructions & Materials, Inc., State Compensation Ins. Fund Attorney Leah D. Davis, Deputy County Counsel submitted with a request for judicial notice.
Feb 22 2007	Received application to file Amicus Curiae Brief   County of Los Angeles in support of respondent, Hat Creek Const. and State Comp. by cousnel, Leah D. Davis with separate request for judicial notice duplicate of entry in S147030 ( 2-22-07),
Feb 22 2007	Received:   from County of Los Angeles concurrent with a.c. brief, a request for judicial notice.
Feb 23 2007	Received application to file Amicus Curiae Brief   California Workers' Compensation Institute, in support of respondents by Ellen Sims Langille, counsel
Feb 27 2007	Order filed   The order filed on February 14, 2007, is hereby amended to read in its entirety: The motion for consolidation (Code Civ. Proc., section 1048) in Brodie v. Workers' Compensation Appeals Board, S146979, filed by petitioner Stan Brodie, is granted. Brodie v. Workers' Compensation Appeals Board, S146979, and the related matter Welcher v. Workers' Compensation Appeals Board, S147030, are ordered consolidated for argument and opinion. The preconsolidation orders granting these cases calendar preference remain in effect. A single consolidated oral argument will be scheduled as soon as is consistent with (1) attention to matters entitled to greater preference by law and (2) application of those provisions of the Internal Operating Practices and Procedures of the California Supreme Court that may necessarily affect scheduling of the case for oral argument (see Supreme Ct. Internal Operating Practices & Procedures, sections V, VI). Oral argument will be one hour total, with 30 minutes allocated to the employee parties (Stan Brodie, respondent in S146979; Kenneth Dee Welcher, Jack Strong, Aurora Lopez, and Henry L. Williams, Jr. petitioners in S147030) and 30 minutes to the employer/insurer parties (Contra Costa Fire Protection District, petitioner in S146979; Hat Creek Construction, Inc., City and County of San Francisco, United Airlines, Department of Social Services, and State Compensation Insurance Fund, respondents in S147030). For purposes of argument, the employee parties wikk argue first and may reserve time for rebuttal; the employer/insurer parties will argue second. Counsel for the employee parties and counsel for the employer/insurer parties each are directed to decide amongst themselves an allocation of their allotted time that complies with section V of the Internal Operating Practices and Procedures of this court.
Feb 27 2007	Received application to file Amicus Curiae Brief   Los Angeles County Metropolitan Transportation Authority in support of respondents. by Elwood Lui, counsel
Feb 28 2007	Received application to file Amicus Curiae Brief   California Chamber of Commerce, et.al., in support of respondents. by counsel, Christina J. Imre.
Feb 28 2007	Permission to file amicus curiae brief granted   Los Angeles County Metropolitan Transportation Authority, answer due within twenty days of the filing of the brief.
Feb 28 2007	Amicus curiae brief filed   Los Angeles County Metropolitan Transportation Authority, in support of respondents
Mar 5 2007	Permission to file amicus curiae brief granted   The application of County of Los Angeles for permission to file an amicus curiae brief in support of respondent ( Hat Creek Construction, et.al..,) is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Mar 5 2007	Amicus curiae brief filed   County of Los Angeles in support of respondent ( Hat Creek Construction, etal.,). by county counsel, Leah D. Davis.
Mar 5 2007	Request for judicial notice filed (granted case)   Amicus Curiae, County of Los Angeles. by county counsel, Eugenia W. Der.
Mar 5 2007	Permission to file amicus curiae brief granted   The application of California Workers' Compensation Institute for permission to file an amicus curiae brief in support of respondents is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Mar 5 2007	Amicus curiae brief filed   California Workers' Compensation Institute in support of respondents. by counsel, Ellen Sims Langille.
Mar 5 2007	Permission to file amicus curiae brief granted   The application of California Chamber of Commerce,Agricultural Council of California, Association of California Insurance Companies, Associated General Contractos of California, California Business Roundtable, California Farm Bureau Federation, California Grocers Association, California Restaurant Association California Retailers Association, California Business Properties Association, California Manufacturers & Technology Association, National Federation of Independent Business Legal Foundation, Western Growers Association, WSPA, for permission to file an amicus curiae brief in support of respondents is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Mar 5 2007	Amicus curiae brief filed   California Chamber of Commerce, et.al., in support of respondents. by council, Christina J. Imre.
Mar 5 2007	Response to amicus curiae brief filed   by: [amicus] County of Los Angeles Answering a.c. brief of California Applicants Attorneys Assoc. Attorney Leah D. Davis
Mar 6 2007	Case ordered on calendar   to be argued Tuesday, April 3, 2007, at 9:00 a.m., in Los Angeles
Mar 7 2007	Response to amicus curiae brief filed   Joint answer of respondents' to amicus curiae brief of California Applicants' Attorneys Association by counsel, Danny Chou
Mar 7 2007	Filed:   Respondents' ( City and Co. of San Francisco, et. al.) joint request for judicial notice in support of answer to amicus curiae brief.
Mar 13 2007	Opposition filed   counsel for petitioner Opposition to Request for Judicial Notice of Co. of Los Angeles.
Mar 14 2007	Application filed to:   divide oral argument time, by S146979 and S147030 employer parties jointly. Requesting 15 minutes for respondent City and County of San Francisco (Danny Chou) and 15 minutes for Los Angeles County Metropolitan Transportation Authority (Elwood Lui).
Mar 14 2007	Filed letter from:   Mark E. Gearhardt, counsel for petitioner Brodie. Requesting permission to divide oral argument time: 10 minutes for Brodie (petitioner in S146979), 10 minutes for Williams (petitioner in consolidated case S147030), and 10 minutes (including rebuttal argument) for counsel for California Applicant's Attorneys Association (amicus curiae in both the consolidated cases).
Mar 16 2007	Order filed   The request of counsel for petitioners in the above-referenced cause to allow three counsel to argue on behalf of petitioners at oral argument is hereby granted. The request of petitioners to allocate to Stan Brodie, petitioner in S146979, 10 minutes, Henry L. Williams, Jr., petitioner in S147030, 10 minutes, and amicus curiae California Applicant's Attorneys Association, 10 minutes of petitioners' 30-minute allotted time for oral argument is granted.
Mar 19 2007	Order filed   The request of counsel for respondents in the above-referenced cause to allow two counsel to argue on behalf of respondents at oral argument is hereby granted. The request of respondents to allocate to amicus curiae Los Angeles County Metropolitan Transportation Authority 15 minutes of respondents' 30-minute allotted time for oral argument is granted.
Mar 19 2007	Response to amicus curiae brief filed   Combined answer by all petitioner to all amicus curiae briefs on behalf of respondents by counsel, Susan R. Borg, Mark Gearheart, Roy J. Otis, M.K. Tescher, David J. Froba.
Mar 28 2007	Request for judicial notice granted   Respondent City and County of San Francisco's request for judicial notice, filed January 12, 2007, is granted. Respondents' joint request for judicial notice, filed March 7, 2007, is granted. Amicus curiae County of Los Angeles's request for judicial notice, filed March 5, 2007, is granted as to Exhibits 1 and 2 and denied in all other respects.
Apr 3 2007	Cause argued and submitted
May 2 2007	Notice of forthcoming opinion posted
May 3 2007	Opinion filed: Affirmed in part, reversed in part   The Court of Appeal's judgment in (Welcher) is affirmed and the Court of Appeal's judgment in (Brodie) is reversed and remanded for further proceedings consistend with this opinion. Majority Opinion by Werdegar, J. --- joined by: George C.J., Kennard, Baxter, Chin, Moreno, Corrigan JJ.
Jun 5 2007	Remittitur issued (civil case)
Jul 3 2007	Returned record   To Court of Appeal - First District Opening brief on the merits, answer brief on the merits, amicus curiae brief, petition for writ of review, supplement to petition for writ of review
Jul 23 2008	Note:   issued second amended remittitur to add consolidated case numbers
Jul 28 2008	Received:   receipt for second amended remittitur from CA/3.

Briefs
Dec 14 2006	Opening brief on the merits filed
Jan 10 2007	Answer brief on the merits filed
Feb 14 2007	Amicus curiae brief filed
Feb 28 2007	Amicus curiae brief filed
Mar 5 2007	Amicus curiae brief filed
Mar 5 2007	Amicus curiae brief filed
Mar 5 2007	Amicus curiae brief filed
Mar 5 2007	Response to amicus curiae brief filed
Mar 7 2007	Response to amicus curiae brief filed
Mar 19 2007	Response to amicus curiae brief filed

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