Apportionment/Conclusive presumption

Labor Code § 4662 presumption of permanent total disability does not apply when the total disability is based on a finding in accordance with the facts.

Angel Valenzuela vs. State of California (BPD) ADJ 1415058

The WCJ found the applicant totally disabled within the meaning of LC § 4662, and that apportionment as described in the decision in the Benson case (74 CCC 113) is not applicable to this case.

Defendant filed a petition for reconsideration contending that a finding of total permanent disability pursuant to LC § 4662 allows apportionment between industrial injuries.

The WCAB found that a finding of total permanent disability “in accordance with the fact” as provided in section 4662 does not preclude apportionment of permanent disability between industrial injuries as described in Benson. However such apportionment must be supported by substantial evidence in the light of the record. In the opinion of the board the record in this case was not complete and there was no substantial evidence so the matter was remanded for further proceedings on all issues including apportionment.

LC § 4662 describes for specific circumstances where total permanent disability is conclusively presumed. Those four circumstances are as follows: (a) Loss of both eyes or the sight thereof. (b) loss of both hands or the use thereof. (c) an injury resulted in a practically total paralysis. (d) an injury to the brain resulting in incurable mental incapacity or insanity.

A plain reading of LC § 4662 shows that only those four listed disabilities obtain the conclusive presumption because the last section of LC§ 4662 provides that, “in all other cases, permanent total disability shall be determined in accordance with fact.” Thus in all other cases where permanent total disability is determined in accordance with facts the permanent disability is not conclusively presumed to be total.

In this case the determination of permanent total disability was based on the evidentiary record and determined in accordance with fact. For this reason, the permanent total disability found by the WCJ is not “conclusively presumed” to be total pursuant to LC§ 4662.

Permanent disability is subject to apportionment based upon its causation, including in cases where the injured worker’s overall permanent disability is 100%. Thus, apportionment must be addressed regardless of whether the total permanent disability is determined by rating the employee’s whole person impairment, or otherwise in accordance with the fact pursuant to the last sentence in LC§ 4662.

The board then stated that LC § 4664 (c) (1) provides that the accumulation of all permanent disability awards issued with respect to any one region of the body in favor of one individual employee shall not exceed 100% over the employee’s lifetime unless the employee’s injury or illness is conclusively presumed to be total pursuant to LC 4662.

In this case the WCJ did not address the evidence concerning the issue of apportionment because he concluded there was no basis for apportionment when total permanent disability is determined in accordance LC 4662 and therefore the matter was remanded back to the trial level.

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