“Permanent total disability shall be determined in accordance with the fact.”  Eerie words from Labor Code section 4662, which allow the trier of fact to find permanent total disability in a variety of cases.

Recently, the Workers’ Compensation Appeals Board reversed a workers’ compensation Judge’s reading of this last sentence of section 4662 to find an applicant permanently and totally disabled.    The WCJ reasoned that the facts in this case, namely the fact that applicant’s impairment, whether by measuring his activities of daily living, ability to function in the work force, or perform essential elements of any occupation, shows that he is PTD.

The WCAB reasoned a bit differently – “[a] finding of total permanent disability ‘in accordance with the fact’ as provided in section 4662 does not preclude apportionment of the permanent disability between industrial injuries as described in Benson.”

Applicant sustained a specific injury and a cumulative trauma, so apportionment was necessary between the two.  The fact that the permanent disability was determined “in accordance with the fact” and not by the rating of impairment, did not negate the need to find apportionment (if appropriate).

The matter was sent back to the trial level to develop the record with respect to apportionment.

Remember, folks: non-industrial, prior-industrial, other-industrial.  Chop that injury into as many little pieces as possible, and suppository of workers’ comp suddenly becomes a much easier pill to swallow.