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4662 PTD Presumption Defeated under 4662(b)

Hello, my dear readers! Your humble blogger is back from his temporary incarceration for blogging without a license, and not unlike Prometheus, is ready to steal the fiery wisdom of workers’ compensation from on high to deliver it to the eager minds of the mortal denizens of the workers’ compensation world.

So, speaking of mental injuries, I submit to you a case that originates in the farthest regions of California.  Deep in the wooded hills and among the wild streams, the Eureka Board is the point of origin for the matter of Winningham v. State of California Department of Corrections.  Applicant, a corrections officer, sustained an injury to his “brain, central nervous system, psyche, eye, digestive system, cognitive system, and I the forms of meningitis, headaches, and vertigo.”  The legal theory advanced was that applicant’s pre-existing condition was “lit up” while applicant was in the gym as part of a work fitness program.

Although applicant was pushing for a finding of permanent total disability, the WCJ instead found that the total permanent disability as “in accordance with the fact” (see Labor Code section 4662(b)) and NOT a presumption as applicant argued (see Labor Code section 4662(a)(4) – “an injury to the brain resulting in permanent mental incapacity.”)  The WCJ then applied apportionment which resulted in an award of 84% permanent disability.

In her report, the WCJ noted that applicant “had a non-industrial underlying asymptomatic condition [brain tumor] that was lit up by his industrial activities [weight lifting].”  The WCJ further noted that the AME’s deposition transcript suggested that applicant’s condition could improve, and that some higher cognitive functioning is still available to applicant.

So… what is total mental incapacity?  Well, in adopting and incorporating the WCJ’s decision, the WCAB cited Schroeder v. WCAB, a 2013 writ denied case in which the WCAB’s opinion, undisturbed by the Court of Appeal, was that 4662 had to do with injuries on the level of “severe mental retardation.”   (Your humble blogger would like to point out for his beloved readers that in 2013, the year the Schroeder opinion issued, LC 4662 looked a bit different: back then, theories that relied on “in accordance with the facts” would benefit from the conclusive presumption of total permanent disability.  By contrast, now at least, permanent total disability “in accordance with the facts” is subject to apportionment.)

In this case, in he injured worker competently and credibly testified about his history and experiences before the WCJ.  The AMEs on the case expected that treatment would improve his condition.  Accordingly, he did not qualify for the conclusive presumption of total disability.

The language of the AMEs in this case was pretty strong supporting apportionment, but can you imagine the damage done to the defendant if permanent total disability had been conclusively presumed?  We’re talking applicant’s TTD rate for the rest of his life with COLA increases.  We’re talking a massive commutation to pay applicant’s attorney’s fee.  This is pretty freakin’ huge!

Cases like this make employers seriously reconsider their work fitness programs!

Now, even with an 84% PD finding, we’re still looking at over $200k in PD and that’s before you get to the pension.  By contrast, if you were to assume a $50,000 per year salary, or average weekly wages of $960, the TD rate is $640.  With a 40 year life expectancy, that’s over $1.3 million, and that’s before the COLA increases.

So, what do we take away from this?

4662(a) is NOT your friend.

4662(b) might be.

Your humble blogger? Always your good and trusted companion…

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