California: Application of Fitzpatrick on Permanent Total Disability Cases

In the just-issued Wilson v. Kohls Department Store (Board Panel Decision), the WCAB adopted most of the WCJ’s Report and Recommendation, but it omitted adopting the heavy critique of Dept. of Corrections & Rehabilitation v. WCAB (Fitzpatrick) (2018) 27 Cal. App. 5th 607, 83 Cal. Comp. Cases 1680, and Applied Materials v. WCAB (2021) 64 Cal. App. 5th 1042, 86 Cal. Comp. Cases 331. Most notably, the WCAB adopted the following analysis:

Specifically, the correct interpretation of law regarding DFEC rebuttal for dates of injury on or after January 1, 2013 is as follows:

1. Applicant cannot rebut the permanent partial disability schedule using a DFEC analysis. (Lab. Code, § 4660.1(a)) 
2. Applicant may continue to rebut the schedule to show complete loss of earning capacity, and thus, applicant in instant case is permanently totally disabled in accordance with the fact. (Lab. Code, §§ 4660.1(g); 4662(b)) 
3. Applicant may continue to obtain vocational expert consultations in all cases and may continue to recover the costs of such evaluations where the procurement of the report is reasonable. (Lab. Code, § 5703(j))

 Reminder: Panel decisions are not binding precedent.