Nuelle v. Workers' Comp. Appeals Bd

In Nuelle v. Workers' Comp. Appeals Bd. (1979) 92 Cal.App.3d 239, the injured employee sustained three successive injuries to the same part of the body. Two of the injuries occurred prior to April 1, 1972; the third injury occurred after April 1, 1972. All three injuries became permanent and stationary at the same time after April 1, 1972, and rendered her permanently totally disabled. While the first two injuries had originally been rated for permanent disability prior to the occurrence of the third injury, the evidence established that the first two injuries had actually continued to worsen until those first two injuries became permanent and stationary at the same time as the third. ( Nuelle, supra, 92 Cal.App.3d at p. 246.) The Nuelle court rejected the Board's complicated formula of a permanent disability award which attempted to apply both the pre- and post-April 1, 1972, rate schedules. The court held "that, under the particular circumstances shown to exist in this case, i.e., where total permanent disability results from a combination of successive specific and cumulative injuries to the same part of the worker's body while working for the same employer, and the specific injuries, although the subject of prior permanent partial disability ratings, are found not to be permanent and stationary, and where all the injuries became permanent at the same time, applicant is entitled to benefits at the rate applicable at the time the last injury giving rise to such benefits occurred." ( Nuelle, supra, 92 Cal.App.3d at p. 249.) In Nuelle the Board's permanent disability award was as follows: "'Applicant is entitled for her two pre-1972 injuries to an award in each case equal to one-third of the indemnity calculated for 100% permanent disability as well as one-third of the life pension. And, for her post 1974 injury, she is entitled to one-third of the life pension awarded in 100% disability cases. A rating of 100% at pre-1972 rates is equal to an indemnity of $ 21,000.00, payable at the rate of $ 52.50 per week for 400 weeks, and thereafter a life pension of $ 48.46 per week. One-third of the indemnity equals $ 7,000.00, payable at the rate of $ 17.50 per week for 400 weeks and thereafter a life pension of $ 16.15 per week. Under the post 1974 law, 100% permanent disability is equal to an award of $ 119.00 per week for life. One-third of that award equals $ 39.56 per week for life.'" ( Nuelle, supra, 92 Cal.App.3d at p. 245.)