100 percent finding of permanent disability under Labor Code Section 4662 (b) overturned

• Posted By: Harvey Brown
• October 1, 2018

This is a published court decision

This is a very significant case for workers’ compensation principles.

The applicant suffered a compensable injury to his heart and psyche while employed as a correctional officer. The applicant received a 97 percent permanent disability rating for his heart. The rating for the psychiatric component was 71 percent. Combining the two ratings resulted in a 99 percent disability.

The case went to trial. The Workers’ Compensation Judge (WCJ) found the applicant 100 percent (permanent and total) disabled in accordance with Labor Code section 4662 (b). The WCJ did not mention or discuss the combined rating of 99 percent using the 2005 schedule of rating permanent disability.

The defendant filed a Petition for Reconsideration alleging the applicant was 99 percent disabled. The Workers’ Compensation Appeals Board (WCAB) reviewed Labor Code section 4660 and 4662 (b) and agreed with the WCJ that the applicant was 100 percent.

On review the Court of Appeal reviewed section 4660 and 4662. They also reviewed numerous cases. They reviewed Ogilvie, LeBoeuf, Jaramillo, among others. They concluded there was no basis for concluding section 4662 (b) provided a path to permanent disability. They indicated section 4660 is mandatory. The 2005 schedule is prima facie evidence of disability. In this case 99 percent. The case was remanded to the WCAB for further action.

Case: Department of Corrections v. WCAB (Fitzparick)

• Posted In: Disability