California: Conclusively Presumed Permanent and Total Disability Cases

Labor Code Section 4662(a) provides that any of the following permanent disabilities shall be conclusively presumed to be total in character: loss of both eyes or the sight thereof, loss of both hands or the use thereof, an injury resulting in a practically total paralysis; and an injury to the brain resulting in permanent mental incapacity.

The noteworthy panel decision of Burr v. The Best Domolition & Recycling Co., Inc., 2018 Cal. Wrk. Comp. P.D. LEXIS --, presents the question of what constitutes “practically total paralysis” for purposes of Section 4662(a)(3). This case is particularly interesting because there are not a significant number of cases addressing this question, and none at the Court of Appeal level. In Burr, applicant was found to be the medical equivalent of a paraplegic.  The Workers’ Compensation Administrative Law Judge (WCALJ), as well as the Workers’ Compensation Appeals Board (WCAB) by adopting his report, concluded that applicant’s disability was not severe enough to meet this standard.

Citing to another noteworthy panel decision, Dawson v. San Diego Transit, 2015 Cal. Wrk. Comp. P.D. LEXIS 745, on “practically total paralysis”, the WCAB concluded that the standard was met only if the injured worker was functionally “near quadriplegia”. The WCALJ placed emphasis on the word “total” in the definition. However, this requirement that the condition equate to “near quadriplegia” is based strictly on a previous panel decision of the WCAB. The question that is raised is if paraplegia alone is insufficient, whether other conditions such as arthritis in the functioning extremities, internal problems, or even psychological problems can bring an employee with paraplegia closer to or within the definition of “practically total paralysis”.

The finding that an employee meets this standard can have a significant impact on the outcome of a workers’ compensation case. Not only does meeting this standard establish a 100% permanent disability before apportionment, there are WCAB panel decisions that suggest that upon meeting this standard, since it is a conclusive presumption, there can be no apportionment. It is going to be very interesting to see, as more and more case proceed through the appellate process, how the numerous conditions contemplated by Labor Code Section 4662(a) are analogized and applied to different factual scenarios.

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