Combining the Pre-Existing Disability with the Subsequent Work Disability

In Bookout v. WCAB (1976) 62 Cal. App. 3d 214, 40CCC704, the Court of Appeal concluded that the proper method for combining the injured worker's pre-existing disability with the disability caused by the subsequent industrial injury was to add them together, rather than combine them using the MDT. The Court explained that it was proper for the workers' pre-existing, non-industrial heart disability consisting of a preclusion from heavy work to be subtracted from the back disability limiting him to semi-sedentary work which was caused by his subsequent industrial injury because the limitation to semi-sedentary work for the back injury overlapped the heavy work restriction for the heart condition. Once the overlapping disability has been subtracted, however, the Court stated that, in combining the disability caused by the subsequent industrial injury and pre-existing disability, the rating for the pre-existing heart disability of avoiding excessive emotional stress (which did not overlap with the back disability) should be added to the rating for the back disability. The court did not apply the MDT, but simply added the 12% rating for the pre-existing restriction from excessive emotional stress to the 65% rating for the back disability, thus producing a combined rating of 77%.

Please also see Dhalbeck v. IAC 135 CAl. App.2d 394 (1955) wherein the WCAB added a previous right hand disability of 33 1/3% to a subsequent burn injury of 49 3/4% for a finding of 83%. This was done by the WCAB without concern, comment, or objection by the parties or an appellate reviewing court. The right hand disability would not seem to overlap with the burn injury and the court appears to have followed a Bookout type of analysis when they simply added the two disabilities together.

Adding the subsequent disability with the pre-existing disability rather than using the CVC is also proper. In ADJ9171432 (Kenneth Evanoff v. City Of Los Angeles)(4/25/16)WCAB commissioners Jose H. Razo, Frank M. Brass, and Deputy Richard L. Newman issued a 100% award that added the subsequent injury with the pre-existing disability. This was significant in that they specifically Cited Bookout and overturned a WCJ decision of 98% that used the CVC to combine the pre-existing and subsequent injuries. They explained that you add the pre-existing and subsequent injuries (after ruling out overlapping disabilities) rather than using the Combined Values Chart (CVC). In this case, the applicant's PD went from 98% to 100%.