WCDefenseCA

Hello there, dear readers!

Your humble blogger’s bow tie just spins in excitement when he has good news to deliver, and today is one of those days.

The Court of Appeal has issued a PUBLISHED decision in the case of Fitzpatrick v. Department of Corrections and Rehabilitation.

The facts are pretty simple: applicant sustained an injury to the heart/circulation rating to 97% PD to the psyche rating to 71% PD.  The two combined would equate to 99% PD, but applicant wanted 100%.  The injury was a CT through the end of 2011.

Well, the WCJ gave him exactly that, reasoning that under Labor Code section 4662(b), applicant was permanently disabled “in accordance with the fact”.

Defendant argued that there are only two ways to reach permanent total disability.  The first is under Labor Code section 4060 and 4060.1 (for post 1/1/13 injuries), the second is through one of four types of injuries, as exhaustively described in Labor Code section 4662(a)(1)-(4): loss of both eyes/sight; loss of both hands/use; injury resulting in practically total paralysis; or brain injury resulting in permanent mental incapacity.

Since applicant was not in one of those four categories, and the PD did not combine up to 100%, there could not be permanent total disability.

The WCAB adopted the WCJ’s reasoning, and on it went to the Court of Appeal.

But the Court of Appeal wasn’t having it!

The Court of Appeal reasoned that 4662(b) does not explain how permanent total disability is to be reached “in accordance with the fact” if the injury does not fall into one of the four categories listed.  Instead, the way to reach permanent total disability is through adding up the impairments, rated out, to reach 100%.

Now comes the fun part!

Labor Code section 4660.1(g) provides that 4660.1 (which was added to the Labor Code as part of SB-863) shall not preclude a finding of permanent total disability in accordance with 4662.  Some of our esteemed community members have taken the position that despite the elimination of the DFEC, this allows a finding of permanent total disability using a vocational rehabilitation report, as that would be “in accordance with the fact.”

However, now we see that the Court of Appeal has closed off this argument for post 1/1/13 injuries: if 4662(b) only allows a finding of permanent total disability based on permanent impairment, and 4660.1 does not include consideration of vocational rehabilitation, then aren’t we bolstered in the argument that vocational rehab, as rebutting the PDRS, is dead?

Anywho, between the news of King and this case, it’s looking pretty good and that’s reason to celebrate.

Have a great weekend, dear readers!