There is some good news for employers regarding an employee’s ability to prove up a 100% permanent total disability award that was just handed down (filed September 25, 2018) by the Third District Court of Appeals.

As a brief background, Labor Code section 4662(b) has been increasingly used by applicant’s attorneys in support of a 100% permanent disability award. Subdivision (a) contains conclusive presumptions of permanent total disability including loss of both eyes or sight thereof, loss of both hands or use thereof, an injury resulting in a practically total paralysis, and an injury to the brain resulting in permanent mental incapacity. Subdivision (b), the focus in this case, provides:

“In all other cases, permanent total disability shall be determined in accordance with the fact.”

Section 4662(b) has increasingly been interpreted as a separate pathway to a 100% award which would not require vocational rehabilitation evidence; one of the three methods of rebuttal of the 2005 Schedule held to be available to an applicant pursuant to Ogilvie. In other words, there are findings of 100% permanent total disability based upon the totality of the medical evidence and without any vocational rehabilitation expert opinions in support thereof. These findings are made despite the fact that the scheduled ratings do not rise to the level of 100%. These findings are said to be made “in accordance with the fact” and have certainly created some uncertainty in the expected level of permanent disability where doctors have provided opinions regarding employability or lack thereof.

In Fitzpatrick, the Judge relied on the reports of two doctors in finding 100% permanent disability. The psychiatric reporting of Dr. Richard Lieberman rated to 71%. The cardiovascular reporting of Dr. Peter Chang-Sing rated to 97%. It was undisputed that the combined ratings were 99%. Dr. Lieberman felt applicant was psychiatrically totally disabled and was very skeptical that applicant could return to work in any capacity. These opinions were the major factor relied upon by the Judge. After trial, applicant was found to be 100% disabled based on section 4662(b) and in accordance with the facts.

The Department filed for Reconsideration on numerous grounds including the contention that Dr. Lieberman’s opinions were not adequate to rebut the scheduled rating of 99% as the issue of vocational feasibility was not addressed. Additionally, the Department argued Dr. Lieberman’s opinions could not be the basis for finding permanent total disability “in accordance with the fact” because the scheduled rating of 71% was nowhere near permanent total disability. The Board disagreed and incorporated the Judge’s opinion in its decision.

On appeal, the issue in Fitzpatrick was set forth as follows:

“Must a finding of permanent total disability be made in accordance with Labor Code section 4660, or does 4662, subdivision (b), provide a separate path to such a finding?”

The Court concluded that permanent total disability determinations under section 4662(b) are subject to section 4660. According to the Court, there is support for the conclusion that the Legislature intended to create an exception to the requirement that permanent disability must determined pursuant to section 4660 (based on the 2005 Schedule) when section 4662(b) was enacted. Despite the difficulty in arriving at 100% permanent disability under the 2005 Schedule, such a finding is possible and did not change the Court’s analysis. The Court also noted that the 2005 Schedule can still be rebutted pursuant to Ogilvie.

It is interesting to note there was a vocational rehabilitation expert opinion in evidence, but it was not relied on by the Judge. There is no insight as to what opinions were expressed. Perhaps even more interesting is the fact that on appeal the Workers’ Compensation Appeals Board argued the evidence may support the additive method rather than the combining method for the final rating. This was a new issue first raised on appeal and Court declined to address it. The Court commented that even if the issue were addressed there was no evidence to support the argument in the record.

The practical effect of this decision is that unless there is a conclusive presumption of permanent total disability under section 4662(a), medical opinions must be rated under the 2005 Schedule or rebutted pursuant to Ogilvie. Of course, Almaraz/Guzman is still available as is adding impairments versus combining them where the evidence supports it.

A caveat: Footnote 8. The Court’s opinion that permanent disability determinations made under section 4662(b) are subject to section 4660 is limited in scope. For injuries on or after January 1, 2013, section 4660.1 applies and this section was not addressed in Fitzpatrick.. Footnote 8 comments on the fact that the California Applicants’ Attorneys Association’s appellate brief pointed the Court to section 4660.1(g), which provides:

“Nothing in this section shall preclude a finding of permanent total disability in accordance with Section 4662.”

The Court goes on to “surmise” what is being argued and attempts to address it, but ultimately indicates that section 4660.1 does not apply because the date of injury at issue is prior to January 1, 2013. Therefore this opinion does not “address or interpret any section of section 4660.1″. In other words, Fitzpatrick applies to injuries prior to January 1, 2013 and the battle continues for injuries falling under section 4660.1.