Capping Permanent Disability at 200%

Everyone knows that the intent of the legislature was to allow injured workers to have a maximum of 100% permanent disability per injury – not once, but twice.  What’s that you say?  Labor Code section 4664 says that “[t]he accumulation of all permanent disability awards issued with respect to any one region of the body in favor of one individual employee shall not exceed 100 percent over the employee’s lifetime”?

Apparently, in California’s workers’ compensation system, a “lifetime” is defined as before and after SB-899.  For pre-2005 injuries, the injured worker gets one “lifetime” under the old rating schedule.  The other “lifetime” is for injuries sustained after January 1, 2005, or pre 1/1/05 injuries where there is a report documenting the existence of permanent disability after January 1, 2005.  Additionally, there is an argument to be made that any injuries sustained while watching the Lifetime channel would also be compensable.

Well, consider the case of Seafus v. County of Los Angeles, a recent writ denied case.

Applicant had sustained a cumulative trauma to the psyche culminating in 1998 to the heart, cardiovascular system and psyche, and the case was resolved by stipulation in 2004.  Specifically, the 2004 award was for 70% permanent disability, and the award reflected that applicant “is restricted from undue stress and substantial work for slight heart disease.”  The applicant then claimed another injury, allegedly sustained in 2006, also to the heart, cardiovascular system, and the psyche.

Naturally, the defendant sought apportionment, but the Agreed Medical Evaluator (be really, really careful when you pick an AME!) opined that there was no overlap between the two injuries, although 15% of applicant’s permanent disability was apportioned to the 1998 cumulative trauma under Labor Code section 4663.

In relying on the AME’s reports, the WCJ reasoned that the actual medical documentation for the prior cumulative trauma supported a preclusion from “very heavy work” rather than the “substantial work for slight heart disease” listed in the actual award.

Also, it did not appear that the AME in the instant case was able to convert the 1998 injury to AMA Guide ratings to allow for apportionment.  The WCJ then issued an award finding 87% permanent disability, less 15% apportionment, from applicant’s new injury.  Finally, in rejecting defendant’s argument that Labor Code section 4664(c)(1) prohibited a finding of 157% permanent disability, the WCJ reasoned that Sanchez v. County of Los Angles (en banc), held that 4664 apportionment requires overlap of disability, rather than the same body region.

In this case, the AME did not find an overlap in disability, although the body region appears to be the same.

The WCAB denied reconsideration, and the Court of Appeal denied review.

Your humble blogger has a few problems with this result.  First of all, it is not appropriate to disturb an award or even challenge its validity so many years after the fact.  The original Award was issued in 2004, and the trial for the new injury was held in 2013.  9 years after the Award was issued, and 15 years after the original injury is the wrong time to question the adequacy of the original Award.

As for the rest, a person who is 70% permanently disabled is just that – 70% permanently disabled.  It should matter what rating schedule we used – if you were 70% disabled in 2004, you’re still 70% disabled in 2005, and now that you’re 87% permanently disabled doesn’t mean that you were free of permanent disability at the time you were evaluated.  And yes, dear readers, your humble blogger is well aware of that “fighting word” “Minvielle” from the panel decision of Minvielle v. Contra Costa Fire Protection District, holding that there is no overlap between 1997 schedule work preclusions and factors of disability on the one hand and AMA whole person impairment on the other.  That being said, that writ denied panel decision is hardly controlling law and its rejection should be argued for with the same frequency that Carthage’s destruction must be demanded in the Roman Senate.