Grinberg: Pre-2005 Awards Count Toward 100% PD Cap

Tuesday, November 24, 2020 | 0

Permanent total disability, which is a prized award sought by every applicant attorney — not unlike a feather in one’s cap — is specifically defined by the Labor Code and case law.

Gregory Grinberg

Labor Code Section 4662 gives us the exhaustive list of how 100% PD can be found through medical evidence: Either the disability is presumed total (loss of both eyes/sight; loss of both hands/use thereof; practically total paralysis; or brain injury resulting in permanent mental incapacity). 

If applicant doesn’t fall into any of those four, the only way to hit 100% PD with medical evidence is by adding or combining various disabilities to get to 100%. At least, that was the holding in the Court of Appeal case of Fitzpatrick.

Unfortunately, it appears that applicants can still pursue 100% PD through Ogilvie, although I am still of the opinion that this can be done only on pre-Jan. 1, 2013, cases, where diminished future earning capacity is still an element of the rating equation.

So what about prior injuries? What about apportionment? Let’s talk about the recent panel case of Ross v. California Highway Patrol. Therein, applicant sustained an admitted injury to his heart, as well as hypertension, atrial fibrillation and other conditions as a CHP officer. After trial, the judge issued an award, finding permanent total disability by adding rather than combining various impairments to reach 100% PD, but then rescinded and ultimately issued an award finding 91% permanent disability. 

Defendant contested the award by offering evidence of prior awards issued to applicant: 1993 injury to the ankle, nausea and gastric (7%); 1998 injury for intestinal issues resulting in 10% PD; cumulative trauma through 2001 to the skin resulting in 33% PD; and another CT and specific injury to various systems in 2009 resulting in 9% PD. 

Defendant argued that all of these conditions fall under the catch-all of Labor Code Section 4664(c)(1)(G) for a “region of the body.”

The Workers' Compensation Appeals Board panel held that once the employer has carried its burden of establishing the existence of overlapping disabilities between prior awards and current injuries, the maximum permanent disability found “in accordance with the fact” is 100% with all awards combined, “As defendant has established that applicant has to date received awards for injuries to the same ‘region of the body,’ as defined in Section 4664(c)(1)(G), totaling 59% permanent disability, the most permanent disability he can receive in his lifetime for subsequent injuries to the same ‘region of the body’ is 41%.”

So, a few things I would respectfully point out. Whatever the holding in Kite, please note the way the WCAB calculates the prior awards: They are added, not combined, to push toward the statutory cap of 100%. The prior awards all add up to 59%, rather than being combined for the smaller number.

Also, has anyone ever heard the term “apples and aardvarks” when talking about permanent disability apportionment? Well, applicants' attorneys and some workers' compensation judges love to cite this term when claiming that an award from the 1997 PDRS cannot be used as a basis for apportionment from a 2005/AMA Guides PDRS rating.

It comes from the writ-denied case of Contra Costa Fire Protection District v. WCAB (Minvielle), a 2010 case in which the agreed medical evaluator opined that there was no apportioning current PD to a prior award because the instant PD was based on the AMA Guides and the 2005 rating schedule, and the prior award was from the 1997 rating schedule. Thus, attempting to apportion would be like “comparing apples to aardvarks.”

The panel in this case had no such considerations. The prior awards were all pre-2005 except for the one from 2009. However, they all contributed, regardless of rating schedule, to a maximum 100%. Under Minvielle, presumably, any awards issued under the old rating schedule wouldn’t count, no? 

So perhaps Minvielle should be rejected (as it is not binding to begin with). I certainly think it should be. Whether the PD is different because it was a different weekly rate or a different rating schedule, perhaps we should just be deducting prior awards from current ones anyway.

Gregory Grinberg is managing partner of Gale, Sutow & Associates’ S.F. Bay South office and a certified specialist in workers’ compensation law. This post is reprinted with permission from Grinberg’s WCDefenseCA blog.