What is the most important 1% in permanent disability ratings? The percentage between 99 and 100.

Labor Code section 4659(b) holds that in cases of permanent total disability (100%), the injured worker becomes entitled to a life pension at his or her temporary total disability rate.

So, of course, in the case of Alvaro Aguila v. Fullmer Construction Co., the defense had all the incentive in the world to fight tooth-and-nail to get at least some apportionment when the Agreed Medical Evaluator found total permanent disability.

The facts are pretty simple: applicant, a 35-year-old carpenter, sustained an injury to his back, psyche, and diabetes.  The AME found that, while applicant was totally permanently disabled, some of that permanent disability should be apportioned to other causes.  Unfortunately, the AME’s opinions kept going back and forth – one report said no apportionment, then the other said 15%, then the third again said no apportionment, then the fourth again assigned 15% apportionment, but to different reasons.

At his deposition, the AME also seemed to think that apportionment was an issue of impairment rather than disability.

The WCAB, on applicant’s petition for reconsideration, ruled that the AME’s opinions with respect to apportionment were not substantial evidence.  Citing Escobedo v. Marshalls, the WCAB held that the AME failed to “disclose familiarity with the concepts of apportionment, describe in detail the exact nature of the apportionable disability, and set forth the basis for the opinion that factors other than the industrial injury at issue caused permanent disability.”

Now, bear in mind, dear readers, that this is not to be read to mean that an evaluating physician cannot change his opinion.  In fact, the sign of a good AME is that he or she will consider reports and arguments and not let pride get in the way.  On the other hand, this back and forth evidences a failure to read one’s own prior reports.

So, accordingly, long after the AME has cashed his checks from defendant, the defendant is now deprived the benefit of non-industrial apportionment, and thereby condemned to pay temporary total disability for the remained of applicant’s life.  Your humble blogger estimates applicant’s current age at 45, and with a life expectancy of 83-89 years, the defendant will be on the hook for a very long time.

Just to give you an idea of some of the numbers, let’s compare two, 2013 injuries with 85% permanent disability with 100% for a person who has a 45 year life expectancy and a TTD rate of $500 per week.

85% yields $195,242.50 in permanent disability benefits, and another $193.27 per week in pension, or a total of $517,375.27.  On the other hand, 100% yields a total of $1,170,000, or more than twice that amount.

Please note, dear readers, that your humble blogger wishes Mr. Aguila a full return of his health and a long life.  My dissatisfaction with the legal result of this case should not be read to mean a desire for Mr. Aguila, or any injured worker, to come to any harm.