Department of Corrections and Rehabilitation v. WCAB (Fitzpatrick)

The Court of Appeal, Third Appellate District granted the defendant’s Petition for Writ of Review on the following question: Must a finding of permanent total disability be made in accordance with Labor Code Section 4660 or does Section 4662(b) provide a separate path to such a finding? The Court made it clear that Section 4660 provides the methodology to finding an award of permanent total disability “in accordance with the fact” as stated in Section 4662(b). The Court held that application of Section 4660 is mandatory. Section 4660 applies the 5th Edition of the AMA Guides.

Labor Code Section 4660 lays out the process and requirements when determining percentages of permanent disability for injuries before January 1, 2013.[1][1].  In response to Section 4660(c), the 2005 Permanent Disability Rating Schedule (PDRS) was created, which provides the process for calculating permanent disability step by step.

Labor Code Section 4662(a) provides four explicit examples of disabilities that shall be conclusively presumed to be permanent and total, or 100%. Section 4662(b) states that “in all other cases, permanent total disability shall be determined in accordance with the facts.”

In this case, the applicant was examined by two medical-legal evaluators and given a combined permanent disability rating of 99%. Notwithstanding the rating the Workers’ Compensation Judge concluded that the applicant was permanently totally disabled by heavily relying on the applicant’s testimony and quotes from the psych evaluator’s report such as, “I am dubious that this patient will return to work in any capacity” and that the applicant was “…on strict psychiatric grounds totally and permanently disabled”.[2][2].  The Judge stated that his conclusions were based in accordance with the facts per Labor Code Section 4662(b). The defendant filed a Petition for Reconsideration, arguing that the psych evaluator’s report was not substantial medical evidence to support the award, nor was it adequate to rebut the scheduled rating because the evaluator failed to address the applicant’s vocational feasibility. The Board denied the petition and adopted the opinion by the Workers’ Compensation Judge.

The question presented on appeal was whether the Board was correct in its interpretation of Sections 4660 and 4662. The Court determined that the Board was incorrect. It explained that Section 4662(b) simply states that the determination must be made on the facts of the case and that to do so one must follow the steps provided in Section 4660. There were arguments that Section 4660 only applied to permanent partial disability, and Section 4662 only applied to permanent total disability. In response, the Court stated that section 4660 applies to both (partial and total disability) because both are provided for in the 2005 PDRS. In addition, the word “partial” is not included in section 4660, and should not be read into it.

Finally, the Board pointed out that there are three methods for rebutting a scheduled rating as addressed by the court in Ogilvie. Therefore, Fitzpatrick had the opportunity to rebut the rating of 99% permanent disability but failed to do so.

WHAT THIS MEANS FOR YOU

When rating a case with a date of injury prior to January 1, 2013, unless one of the four conclusive instances in Labor Code Section 4662(a) is applicable Labor Code Section 4660 is the mandatory method for determining the extent of permanent disability.

This is a complicated evaluation and while it does not come up that often because it only applies to injuries before January 1, 2013 the advice and assistance of experienced workers’ compensation defense counsel should be considered to minimize the expense of litigation and the ultimate cost of cases that involve assertions of permanent and total disability when the ratings of the medical evidence are less than 100%.

Amanda Rocha, Attorney
GMK, San Luis Obispo

[1][1] Labor Code Section 4660.1 applies to injuries after January 1, 2013, and was not discussed in this case.
[2][2] The psyche rating alone was 71%.