The California Supreme Court resolved in Brodie v. Workers' Comp. Appeals Bd., 40 Cal. 4th 1313 (2007), the conflict among the appellate courts as to the correct formula for calculating the permanent disability indemnity when there is apportionment to either a previous industrial disability, to non-industrial causes, or both. James Ponzio asserts that the determination of apportionment has thus taken on increased importance for permanent disability awards. Ponzio concludes that because for some body parts, the ratings under the 2005 Schedule are significantly lower than under the 1997 Schedule, the practical effect of Brodie will be that in subtracting out the old percentage of disability under the 1997 Schedule, there will frequently be claims under the 2005 Schedule in which there will be no indemnity due, despite an obviously worsened condition. This commentary, written by James Ponzio, a Certified Specialist in Workers' Compensation and partner with Mullen & Filippi who exclusively represents employers and insurance carriers, examines from the perspective of a defense attorney the major implications and unanswered questions of the Brodie interpretation of Cal. Labor Code §§ 4663, 4664 and Formula A.

Access full text of the Expert Commentary at LexisNexis® 2007 Cal. LEXIS 4334.