Brammer

Petitioner Mark Brammer, 24 years old, 6 feet 1 inch tall, weighing 195 pounds, of athletic build, a skier, a weightlifter, and a karate practicer, injured his back while working as a retail clerk in a supermarket; he applied for workers’ compensation benefits. His employer, or its workers’ compensation insurance carrier, respondents, contended that any disability was caused by a preexisting back problem not industrially related. After a hearing and after medical reports were received, the workers’ compensation judge found that petitioner had a permanent 21 percent disability wholly caused by the industrial injury and awarded him a benefit of $5,285 payable at the rate of $70 a week, with an allowance of $550 for his attorneys’ fees.

Respondents petitioned the Workers’ Compensation Appeals Board for reconsideration of the findings and award. They contended that under Labor Code section 4663 1 apportionment of the disability was required. The board, agreeing with the respondents, issued a decision and order which granted reconsideration and apportioned one-third of the 21 percent disability to the preexisting back problem. This reduced the benefit to $3,237.50 with an…