Shevchuk v. WCAB

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Filed 12/14/06 Shevchuk v. WCAB CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or
ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
JOHN SHEVCHUK,
Petitioner,
v.
WORKERS’ COMPENSATION
APPEALS BOARD and UNITED
AIRLINES ,
Respondents.
A112724
(WCAB Case Nos. SFO 0407561
SFO 0416943)
INTRODUCTION
John Shevchuk petitions for review of an order and decision after reconsideration
of the Workers’ Compensation Appeals Board (Board), affirming the decision of the
Workers’ Compensation Judge (WCJ). Shevchuk challenges the Board’s permanent
disability and apportionment determinations.
BACKGROUND
United Airlines (United) aircraft mechanic Shevchuk sustained industrial injury to
his low back and a compensable consequence gastrointestinal injury on March 15, 1994
and during a cumulative period ending November 17, 1997. He had previously received
a stipulated award against United based on 4:3 (4.75) percent permanent disability after a
1991 industrial leg injury. After a hearing, the WCJ issued findings, award and opinion
on decision dated September 10, 2002. She found Shevchuk 73 percent permanently

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disabled, which resulted in an award based on 68:1 (68.25) percent permanent disability
after apportionment.
In response to Shevchuk’s petition for reconsideration, the WCJ rescinded her
findings and award to allow for further development of the record on the issue of
Shevchuk’s feasibility for vocational rehabilitation (Cal. Code Regs., tit. 8, § 10859).1
On December 9, 2002, the WCJ appointed rehabilitation counselor Sandra Schuster as
independent vocational evaluator. At the next hearing, Schuster both testified and
submitted a report.
On September 20, 2004, the WCJ issued findings, award and opinion on decision
after rescission, again awarding Shevchuk benefits based on 68.25 percent permanent
disability. Again, Shevchuk petitioned for reconsideration, which the Board granted,
rescinding the WCJ’s order and remanding the matter in order to allow the parties to
reconstruct the file, which was “lost or missing.” After the file was reconstructed, the
WCJ reissued her original findings, award and opinion on decision, Shevchuk again
petitioned for reconsideration, and the WCJ filed a report and recommendation on his
petition. This time, the Board granted reconsideration to allow for further study of the
factual and legal issues. On December 8, 2005, the Board issued its opinion and decision
after reconsideration, affirming the WCJ’s findings and award.
Shevchuk filed a timely petition for writ of review, which we denied on March 2,
2006. The Supreme Court granted his petition for review and transferred the matter back
to us with directions to vacate our summary denial and issue a writ of review, which we
have done.
1 At the hearing, the parties had submitted a September 4, 2001 report from vocational
consultant Ron Fleck, but he had been unavailable to testify.

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DISCUSSION
I.
PERMANENT D ISABILITY
L EVEL
Shevchuk first challenges the Board’s determination that his pre-apportionment
permanent disability level was 73 percent on the ground that unrefuted medical and
vocational evidence “supports a finding” of total (100 percent) permanent disability.
This contention reflects a basic misunderstanding of the substantial evidence rule, which
is also illustrated by Shevchuk’s reliance on South Coast Air Quality Management
District v. Workers’ Compensation Appeals Board (Zapfel) (2001) 66 Cal.Comp.Cases
1239.2 “The findings and conclusions of the Board on questions of fact are conclusive
and final [as] long as, based on the entire record, they are supported by substantial
evidence.” (Save Mart Stores v. Workers’ Comp. Appeals Bd. (1992) 3 Cal.App.4th 720,
723.) In Zapfel, the Board found substantial evidence that the applicant was totally
disabled; in this case it did not. Shevchuk’s argument that “if the Zapfel record supported
a finding of 100 [percent] permanent disability, there can be no question that the record in
the instant case supports the same finding,” ignores the fact that the Board did not make
the same finding in this case as in Zapfel.
In this case, the WCJ based her 73 percent permanent disability rating on the
opinion of Steven Feinberg, M.D., the agreed medical examiner (AME), that Shevchuk
2 In any event, such “writ denied” cases are not binding on this court. (County of San
Luis Obispo v. Workers’ Comp. Appeals Bd. (2001) 92 Cal.App.4th 869, 878, fn. 5.)

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was limited to “essentially the equivalent [of] a semi-sedentary level of work.”3
Shevchuk argues, however, that evidence he was not feasible for vocational rehabilitation
mandated a finding of total disability.
“A permanent disability rating should reflect as accurately as possible an injured
employee’s diminished ability to compete in the open labor market. The fact that a
worker has been precluded from vocational retraining is a significant factor to be taken
into account in evaluating his or her potential employability.” (LeBoeuf v. Workers’
Comp. Appeals Bd. (1983) 34 Cal.3d 234, 245-246.) “[A] determination that he or she
cannot be retrained for any suitable gainful employment may adversely affect a worker’s
overall ability to compete. Accordingly, that factor should be considered in any
determination of a permanent disability rating.” (Id. at p. 243.)
In this case, the WCJ did consider the opinions of both vocational rehabilitation
counselor Fleck and independent vocational evaluator Schuster that Shevchuk was not
feasible for rehabilitation. She did not accept Fleck’s findings at face value believing
they were largely based on Shevchuk’s own statements regarding his ability to perform
certain activities, whereas Shevchuk’s testimony in this regard was inconsistent. She
further found Shevchuk was less than fully cooperative during the vocational
rehabilitation process and voluntarily removed himself from a labor market identified by
Schuster.
3 In her report and recommendation, the WCJ rejected a later report by Feinberg as
“lacking in any foundation and based on little more than speculation.” She seems to have
initially misconstrued the statement in that report that “it is medically probabl[e] that the
approximate percentage caused by the industrial injury/exposure is 100%.” It is clear
from the context that Feinberg did not mean that Shevchuk is 100% disabled, but rather
that 100 percent of his current disability is due to industrial as opposed to non-industrial
factors. Later in her report, the WCJ calls Feinberg’s statement “nonsensical,” having
apparently realized that although he declared himself “familiar with apportionment as
mandated by Labor Code section 4663” (see post, fn. 5), he seems to have ignored that
section’s mandate to apportion not just to non-industrial injuries but to “other
factors . . . including prior industrial injuries” (§ 4663, subd. (c)).

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The WCJ found Schuster “forthright and credible.” After a thorough assessment,
Schuster found Shevchuk not feasible for vocational rehabilitation because of his attitude,
perspective, anger, lack of patience, and perception of his disability. He exhibited
unwillingness to participate in the vocational rehabilitation process and did not make a
good effort during the testing segment of her assessment.
Substantial evidence supports the WCJ’s conclusion that Shevchuk was not totally
disabled.
II.
A PPORTIONMENT
Shevchuk challenges the Board’s apportionment determination on two grounds:
1) no apportionment is warranted because his back injuries do not overlap with his prior
leg injury, and 2) if apportionment is warranted, the Board used the wrong apportionment
formula.
A. Disability Overlap
For the first proposition, Shevchuk relies on the “writ denied” case (see ante, fn.
2) of Los Angeles County Metropolitan Transit Authority v. Workers’ Comp. Appeals Bd.
(Belcher) (2000) 65 Cal.Comp.Cases 730, in which a worker with a previous award for
orthopedic injuries that limited his physical capacity to work sustained a kidney injury
(total renal failure) that precluded any type of work because of daily dialysis. The Board
found no apportionment because there was no overlap in the way the applicant’s injuries
impaired his ability to work. By contrast, in this case the WCJ found the impairments
similar in kind: “The disability to the leg (preclusion from prolonged squatting and
kneeling)[4 ] overlapped and are subsumed with the disability to his spine (limitation to
semi-sedentary work).” Moreover, Belcher predated the new apportionment provisions
4 Although the AME at the time of the 1991 injury did not impose any formal work
preclusions, and Shevchuk testified at trial that he returned to his usual and customary job
without restrictions, he had previously testified that the leg pain never went away
completely and he avoided squatting and kneeling as much as possible, even after his last
day of work.

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of Senate Bill 899 (Stats. 2004, ch. 34, §§ 34 & 35, pp. 150-152, eff. April 19, 2004 (S.B.
899)).5
But Shevchuk maintains the new statutes have effectively eliminated the doctrine
of overlap with regard to the seven body regions listed in section 4664, subdivision
(c)(1),6 which include the spine and lower extremities. He offers no elaboration,
analysis, or argument in support of this contention, acknowledging that the Board
rejected it en banc in Strong v. City & County of San Francisco (2005) 70
Cal.Comp.Cases 1460, 1461-1462 (Strong), where it ruled that section 4664 requires
apportionment of disabilities involving different body regions, “unless the applicant
disproves the overlap, i.e., the applicant demonstrates that the prior permanent disability
and the current permanent disability affect different abilities to compete and earn, either
in whole or in part.” (See also Sanchez v. County of Los Angeles (2005) 70
Cal.Comp.Cases 1440, 1442 (Sanchez), en banc Board decision [same].) In this case, the
5 Labor Code section 4663, subdivision (a) now provides, “Apportionment of permanent
disability shall be based on causation.” New section 4664 provides, in pertinent part,
“(a) The employer shall only be liable [sic] for the percentage of permanent disability
directly caused by the injury arising out of and occurring in the course of employment.
[¶] (b) If 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 injury. This presumption is a presumption affecting the burden of
proof.” (Italics added.)
All further statutory references are to the Labor Code.
6 That subdivision provides in relevant part, “The accumulation of all permanent
disability awards issued with respect to any one region of the body in favor of one
individual employee shall not exceed 100 percent over the employee’s lifetime.”

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Board expressly found the WCJ’s decision was correct under the principles set forth in
Sanchez and Strong, and Shevchuk has not convinced us otherwise.7
B. Apportionment Formula8
The WCJ consistently apportioned Shevchuk’s permanent disability benefits by
subtracting the percentage of permanent disability on which his prior award was based
(4.75) from his current overall percentage of permanent disability (73). This is the
method (“formula A”) the court in Fuentes v. Workers’ Comp. Appeals Bd. (1976) 16
7 In the recent case of Kopping v. Workers’ Comp. Appeals Bd. (2006) 142 Cal.App.4th
1099, 1115, the court held the Board erred “in imposing on the claimant the burden of
disproving overlap between the prior disability and the current disability.” Contrary to
the Board’s conclusion in Strong and Sanchez, the court held the burden of proving
overlap is part of the employer’s overall burden of proving apportionment. (Kopping,
supra, at p. 1115.) We acknowledge this recent development, but also note that
Shevchuk did not raise the issue of the burden of proof as to overlap, and did not bring
the Kopping case to our attention either when it was filed or at oral argument a month and
a half later.
8 This issue is currently pending before our Supreme Court in Brodie v. Workers’ Comp.
Appeals Bd. (2006) 142 Cal.App.4th 685, review granted November 15, 2006, S146979,
and Welcher v. Workers’ Comp. Appeals Bd. (2006) 142 Cal.App.4th 818, review granted
November 15, 2006, S147030.

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Cal.3d 1, 5-6 (Fuentes) found to be required by the express and unequivocal language of
former section 47509 (repealed by S.B. 899, Stats. 2004, ch. 34, § 37, p. 152).
Less than a month after the WCJ issued her report and recommendation on
Shevchuk’s petition for reconsideration, the Board issued an en banc decision in Nabors
v. Piedmont Lumber & Mill Co. (2005) 70 Cal.Comp.Cases 856 (Nabors) in which a 4-2
majority agreed with the WCJ herein that Fuentes still governed permanent disability
apportionment. In its opinion and decision after reconsideration, the Board herein noted
that Division Two of this court had granted review in Nabors, but also that absent
contrary appellate direction, it remained valid authority pursuant to Diggle v. Sierra
Sands Unified School District (2005) 70 Cal.Comp.Cases 1480 [“significant” Board
panel decision].
On December 20, 2005, the Fifth District published its opinion in E & J Gallo
Winery v. Workers’ Comp. Appeals Bd. (2005) 134 Cal.App.4th 1536 (Dykes) (review
den. Mar. 1, 2006, S140645), in which, after exhaustive analysis (see post, pt. B.1.), the
court held that “where an employee sustains multiple disabling injuries while working for
the same self-insured employer, the employee is entitled to compensation for the total
disability above any percentage of permanent disability previously awarded.” (Id. at
p. 1540.) In other words, the Dykes court adopted Fuentes’s “formula C” method of
9 Section 4750, whose purpose was “to encourage employers to hire physically
handicapped persons” (Fuentes, supra, 16 Cal.3d at p. 6), then provided in its entirety,
“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 or impairment. [¶] The employer 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.” (Italics added.)
The problem in Fuentes was that under 1971 amendments to the permanent disability
schedule (§ 4658), benefits increase exponentially in proportion to the percentage of
disability. (Fuentes, supra, 16 Cal.3d at p. 4.) Thus, for example, the benefits for 68.25
percent permanent disability plus the benefits for 4.75 percent permanent disability add
up to appreciably less than the benefits for 73 percent permanent disability.

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computing benefits: award based on current permanent disability rating, less amount
payable for prior level of permanent disability (Fuentes, supra, 16 Cal.3d at p. 5).
(Dykes, supra, 134 Cal.App.4th at p. 1553.)
In his petition for writ of review, Shevchuk notes that Dykes is directly on point
and repudiates the Board’s en banc decision in Nabors. After his petition was filed, and
the matter remanded to us by the Supreme Court, Division Two of this court issued its
opinion in Nabors, extending the rationale of Dykes to a case in which the employer was
not self-insured, but covered by two different carriers at the time of its employee’s
injuries. (Nabors v. Workers’ Comp. Appeals Bd. (2006) 140 Cal.App.4th 217 (review
den. Aug. 23, 2006, S145097); hereafter Nabors, unless the Board’s en banc decision is
specified.)
Unable to distinguish it on the facts, United argues that Dykes, supra, 134
Cal.App.4th 1536 was wrongly decided. Our brethren in Division Two rejected this
contention (Nabors, supra, 140 Cal.App.4th at pp. 226-228), and United advances no
compelling reason for us to do otherwise. In order to establish a context for United’s
contentions, we begin by adopting and quoting in its entirety the Nabors court’s summary
of Dykes (Nabors, supra, at pp. 223-225):
[1.] The Dykes Opinion [fn. omitted]
Winery worker David Dykes sustained an industrial back injury in 1996, resulting
in an award based on 20.5 percent permanent disability. In 2002, he became 73 percent
permanently disabled after a second industrial back injury. The WCJ awarded Dykes
benefits based on 73 percent permanent disability, less the amount of compensation
previously awarded for the earlier injury. In other words, the WCJ computed the amount
of the award using Fuentes’s formula C. Gallo, Dykes’s self-insured employer,
petitioned for reconsideration, which was summarily denied. (Dykes, supra,
134 Cal.App.4th at p. 1541.) Gallo petitioned for review, urging the application of
formula A. (Id. at pp. 1543, 1554.)
After surveying the applicable statutes (Dykes, supra, 134 Cal.App.4th at
pp. 1541-1543), the Fuentes opinion (id. at pp. 1544-1547), and the en banc decision in

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Nabors (id. at pp. 1547-1548; []), the court concluded Fuentes was no longer controlling
after S.B. No. 899 (id. at p. 1548). First, the court noted that the Fuentes court repeatedly
stated its holding was required by the express and unequivocal language of section 4750,
going so far as to suggest that repeal of that section would create the opportunity to apply
another apportionment formula, and a year later, in Wilkinson v. Workers’ Comp. Appeals
Bd. (1977) 19 Cal.3d 491, 500 []), confirmed that its adoption of formula A rested
exclusively on former section 4750. (Dykes, at pp. 1548-1549.) Next, the court pointed
out the “significantly different approaches” to apportionment between former section
4750 (current injury considered by itself as if no prior disability existed) and new section
4664 (conclusive presumption that prior disability still exists). (Id. at p. 1549.) Finally,
the court rejected the Nabors en banc majority’s conclusion that the policy of
encouraging employers to hire the disabled dictates the use of formula A, noting the new
legislation’s presumption that prior disability exists, the lack of evidence that any
apportionment formula promotes hiring the disabled better than another, and the
numerous anti-discrimination statutes enacted since Fuentes. (Id. at p. 1550.) In sum,
the court concluded that “the Legislature contemplated a variation in determining
apportionment by repealing section 4750 and replacing it with different language in
section 4664 for apportioning liability among multiple injuries.” (Ibid.)
Turning its attention to the meaning of the new apportionment provision, the court
concluded the plain language of section 4664, subdivision (a) (ante, [fn. 5]) means that
“[a]n employer is liable for the direct consequences of a work-related injury, nothing
more and nothing less.” (Dykes, supra, 134 Cal.App.4th at p. 1551.) Furthermore,
“section 4664 contemplates accumulating multiple disability awards rather than
subtracting percentage levels of disability.” (Ibid.)[10 ] But the court noted that while the
new statutes, in conjunction with the permanent disability schedule (see ante, [fn. 7]) and
10 “The accumulation of all permanent disability awards issued with respect to any one
region of the body in favor of one individual employee shall not exceed 100 percent over
the employee’s lifetime” except under certain enumerated circumstances. (§ 4664,
subd. (c)(1).)

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the life pension provision,[11 ] may be interpreted to permit several different approaches to
apportioning liability, yielding quite disparate results, the Legislature did not specify any
particular method of calculating an award. (Id. at pp. 1551-1552.)
Guided by the specific legislative mandate of section 4664, subdivision (a), as well
as the overriding principle of liberal construction of workers’ compensation laws for the
benefit of injured workers (§ 3202), and mindful of the exponentially progressive nature
of the permanent disability tables, which serve to compensate employees with higher
levels of permanent disability “in greater proportion” to those with lower levels, the court
concluded that only formula C ensures both that an employee is adequately compensated
and that an employer is liable only for the percentage of disability directly caused by the
current injury. In other words, an employer is liable for that part of a worker’s overall
disability that exceeds his prior disability level. (Dykes, supra, 134 Cal.App.4th at
pp. 1551-1552.)
The Dykes court could “ascertain no legislative intent to compensate an employee
who has sustained two or more disabling injuries while employed by the same self-
insured employer less than a similarly situated employee who has sustained a single
industrial injury resulting in the same level of permanent disability. By not recognizing
the injured employee’s total disability[,] and artificially shifting compensation down on
the permanent disability tables, all of the other formulas shortchange an employee by
treating him or her as though no prior injury or disability existed, which is . . . no longer
permitted under Sen[ate] Bill [No.] 899.” (Dykes, supra, 134 Cal.App.4th at p. 1553.)
Moreover, any other formula for apportionment among multiple injuries “creates a
windfall to the employer and places an unreasonable burden on the injured employee who
must compete in the open labor market with a permanent disability.” (Ibid.) Finally, the
court pointed out that under the old law, evidence that Dykes had been rehabilitated from
11 “If the permanent disability is at least 70 percent, but less than 100 percent,
1.5 percent of the average weekly earnings for each 1 percent of disability in excess of
60 percent is to be paid during the remainder of life, after payment for the maximum
number of weeks specified in Section 4658 has been made.” (§ 4659, subd. (a).)

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his prior injury would have defeated any apportionment at all, rendering Gallo liable for
an award based on 73 percent permanent disability, in addition to the benefits already
paid for the earlier injury. (Id. at p. 1554.) Under present law, taking his prior level of
disability into account, as required by section 4664, subdivision (a), the “percentage of
permanent disability directly caused by” the current industrial injury is the additional
percentage of disability that takes him from 20.5 percent to 73 percent disabled. Dykes
was therefore entitled to an award reflecting the difference between a 20.5 percent
disability and a 73 percent disability on the permanent disability table applicable to the
subsequent injury. (Ibid.) [End of quotation.]
2. United’s critique of Dykes
United raises some of the same arguments that were raised and resolved in Dykes
and/or Nabors, without adding anything new or demonstrating any flaws in the reasoning
of those opinions.
First, United maintains the Legislature intended to incorporate Fuentes, supra, 16
Cal.3d 1 and formula A into statutory law when it enacted sections 4663 and 4664.
United asserts that the Board’s en banc decision in Nabors was correct, and supported by
language in Strong, supra, 70 Cal.Comp.Cases at page 1467, to the effect that once
disability overlap is established, apportionment is achieved by subtracting the percentage
of disability due to the overlapping prior injury from the percentage of combined
disability after the new injury. By contrast, United concludes, the Dykes court reasoned
incorrectly. We disagree.
United’s contention that the express language of sections 4663 and 4664
(specifically, the use of the term “percentage of disability”) codified Fuentes, supra, 16
Cal.3d 1 and formula A was rejected by the Nabors court, which pointed out that
“[f]ormula A and formula C are alternate methods of calculating benefits based on the
percentage of total disability caused by each of two successive injuries.” (Nabors, supra,
140 Cal.App.4th at p. 226, citing Dykes, supra, 134 Cal.App.4th at p. 1554.) The only
difference, as amicus curiae California Applicants’ Attorneys Association explains, is
whether the percentage apportioned to the disability caused by prior injury is deducted

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from the bottom or the top of the combined disability rating. United adds nothing to
undermine the Nabors court’s conclusion.
United’s next criticism of Dykes, supra, 134 Cal.App.4th 1536 is that formula A is
consistent with the purpose of S.B. 899 to stimulate the economy and remedy the
“crippling effects” of workers’ compensation on California business. This proposition is
based partly on uncodified section 49 of S.B. 899, which provides that it take effect
immediately in order “to provide relief to the state from the effects of the current
workers’ compensation crisis at the earliest possible time.” The remainder of United’s
discussion under this rubric is essentially a policy argument on behalf of “the Business
community” that every aspect of S.B. 899 should be interpreted in a way that results in
lower benefit payments to injured workers. This argument does not undermine the legal
analysis of the Dykes court, which was presumably aware of the business community’s
“hope[s]” for S.B. 899.
Next, United raises the issue of the state’s policy encouraging employers to hire
the handicapped. Here, as elsewhere, United fails to convince us that the Dykes court’s
reasoning (Dykes, supra, 134 Cal.App.4th at p. 1550; see ante, p. 9) is anything but
sound. (See also, Nabors, supra, 140 Cal.App.4th at p. 227.)
Finally, United contends that Dykes, supra, 134 Cal.App.4th 1536 created an
anomalous and unjust rule that applies to only certain classes of employers in violation of
the equal protection rights of others. The gist of this argument is that Dykes applies only
to self-insured employers. On the contrary, pointing out that the Dykes court properly
limited its holding to the facts of the case before it, but expressly eschewed deciding
whether formula C was applicable in other circumstances as well, the Nabors court
extended its rationale to an injured worker whose employer was insured by two different
carriers at the times of his injuries. (Nabors, supra, 140 Cal.App.4th at pp. 225-226.)

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C. Conclusion
Since United has not persuaded us to diverge from the Dykes rationale, and since
the Dykes holding is directly applicable to the facts of this case, we conclude that formula
C is the correct method of calculating Shevchuk’s permanent disability benefits.
Moreover, since Shevchuk’s current injuries directly caused him to become 73 percent
permanently disabled, a life pension was imposed as a matter of law under section 4659,
subdivision (a). (Dykes, supra, 134 Cal.App.4th at p. 1555; Nabors, supra, 140
Cal.App.4th at p. 228.)
DISPOSITION
The Board’s order after reconsideration is annulled, and the matter returned to the
Board with directions to reverse the WCJ’s order, and recalculate the amount of
Shevchuk’s permanent disability benefits in accordance with this opinion.
_________________________
Sepulveda, J.
We concur:
_________________________
Reardon, Acting P.J.
_________________________
Rivera, J.

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