County of Contra Costa Randall Minvielle WORKERS’ COMPENSATION APPEALS BOARDSTATE OF CALIFORNIARANDALL MINVIELLE, Applicant,vs.COUNTY OF CONTRA COSTA / CONTRA COSTA FIRE, legally uninsured, Defendant(s).Case No. ADJ277378 (OAK 0321116)OPINION AND ORDER DENYING RECONSIDERATION Defendant seeks reconsideration of the October 23, 2009 Findings and Award of the workers’ compensation administrative law judge (WCJ) who found in this case (OAK 0321116) that applicant, while employed by defendant as a firefighter, sustained industrial injury to his back on November 22, 2004, causing 31% permanent disability without apportionment, and a need for future medical treatment. It was earlier found on May 4, 1995 in a different case, WCK 022127, that applicant sustained an industrial injury to his back while working for the same employer as a firefighter on October 8, 1992, causing 27.5% permanent disability. The WCJ addressed the issue of apportionment in this case in her findings as follows: “Although Labor Code section 4664 is a conclusive presumption of the existence of prior disability, and proof of medical rehabilitation does not rebut same, there remains a burden on Defendant to prove overlap and such has not been shown in the instant case, due to the dissimilarity on the one hand between the PDRS [Permanent Disability Rating Schedule] and the AMA guides [AMA Guides to the Evaluation of Permanent Impairment, Fifth Edition], and the ROM [Range of Motion] and DRE [Diagnosis-Related Estimate] methods within the AMA guides on the other. Further, no Labor Code section 4663 apportionment has been shown. I find that with no overlap in permanent disability and with due consideration of , Labor Code section 4664 and 4663, that there is no apportionment as between the respective industrial injuries.” (Emphasis in original, bracketed material added.) Defendant contends that the WCJ should ha
