California Labor Code section 4662 allows for a presumption of total permanent disability in cases of the loss of sight in both eyes, loss of use of both hands, practically total paralysis, and brain injuries resulting in mental incapacity or insanity. Otherwise, “permanent total disability shall be determined in accordance with the fact.”
Originally part of the labor code since 1917, section 4662 was meant to provide for those completely devastating cases, where the employee reached permanent total disability in the course of service to the employer. However, applicant’s attorneys have a more “equitable” use for this section.
In the case of Jesus Cordova v. Garaventa Enterprises (2011 panel decision), applicant sustained an injury to the cervical spine, lumbar spine, and left upper extremity when he fell off a tractor, yet held onto the steering wheel, causing his torso to twist. The Workers’ Compensation Judge awarded applicant 100% PD, reasoning that his medically imposed physical restrictions, combined with the opinions of applicant’s vocational rehabilitation expert, rendered him completely unemployable.
Defendant naturally argued that applicant’s failure to learn to speak English (dare your humble blogger point out applicant’s 15 years of working in the United States?) and the applicant’s lack of success in adult education courses were not its fault. (In fact, if “[a]pportionment of permanent disability shall be based on causation,” as Labor Code section 4663 commands, shouldn’t permanent total disability be apportioned as well?)
The WCJ, however, saw it differently:
“we all come to the job market with innate limitations. It is axiomatic that there will always be certain jobs, given one’s level of intelligence, talents, education, characterological disposition, and innate body strengths and habitus that he or she will never be qualified for. It would be inequitable to factor these into the equation, in determining whether a worker who has sustained a significant injury is totally disabled. If we were to do so, no injured worker could ever receive an award of permanent total disability, regardless of how catastrophic his industrial injury might be.”
The Workers’ Compensation Appeals Board affirmed the WCJ’s decision.
Your humble blogger will point out, at this point, that there is a (sadly and regrettably) de-published, and therefore un-citable case, Hertz Corporation v. Workers Compensation Appeals Board (Aguilar), in which the Court of Appeal found, that “[t]he finding of vocational nonfeasibility was based in part on preexisting, nonindustrial factors, that is, Aguilar’s inability to read and write English. Therefore … Herz is not liable for that portion of Aguilar’s permanent disability that is caused by preexisting nonindustrial factors.”
The WCJ’s opinion in this case is a dangerous one – applicant began working with a very limited scope of possible employment, and he was deprived of only a limited scope of employment by an industrial injury.
To suggest that the employer (or insurer) is liable for depriving applicant of a full spectrum of possible jobs, when applicant’s own decision not to learn English or his non-industrial inability to develop other job skills, had previously barred him from anything other than heavy physical labor, flies in the face of Labor Code section 4663.
In any case, efforts to have Aguilar published were met with disapproval by the California Supreme Court (See 2010 Cal. Lexis 7175 – petition for publication denied). We can expect that future efforts to recognize as non-industrial such limitations as Messrs. Aguilar and Cordova brought to their employment will likewise be met with stiff resistance by the WCAB.