California: The Rules for Determining Permanent Disability Can Often Be Difficult to Predict

Labor Code Section 4660(d) provides that California’s Permanent Disability Rating Schedule (PDRS) shall promote consistency, uniformity and objectivity when it comes to determining an injured worker’s permanent disability. From reading this section, one could assume that the rules applicable to determining permanent disability in California Workers’ Compensation System would be easy to navigate. However, Section 4660(d)’s stated mandate has not resulted in anything close to an easy to understand process when it comes to determining permanent disability.

Some of the difficulty lies in the fact that cases like Almaraz v. Environmental Recovery Services/Guzman v. Milpitas Unified School District (2009) 74 Cal. Comp. Cases 1084 (Appeals Board en banc)(Almaraz/Guzman II) and Ogilvie v. City and County of San Francisco (2009) 74 Cal. Comp. Cases 1127 (Appeals Board en banc)(Ogilvie II) specifically find that the 2005 Permanent Disability Rating Schedule can be successfully rebutted by either using other tables and chapters from the AMA Guides or in the case of Ogilvie, by using information completely outside of the PDRS.

There is also Labor Code Section 4662 which provides that permanent and total disability “shall be determined in accordance with the fact…” Nowhere in the Labor Code is there such a broad definition provided for permanent partial disability. Moreover, nowhere in the Labor Code is the phrase “in accordance with the fact…” explained or defined.

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Accordingly, although the rules applicable to a permanent and partial disability case are somewhat clearer, as the case moves closer to the realm of permanent and total disability, the rules become less and less clear. This point is underscored by the recent Workers’ Compensation Appeals Board (WCAB) panel decision in Martinez v. Pack Fresh Processors, LLC, 2017 Cal. Wrk. Comp. P.D. LEXIS --. The majority of commissioners in Martinez concluded that the Workers’ Compensation Administrative Law Judge (WCALJ) did not have to follow the 2005 PDRS by using the Combined Values Chart (CVC) in combining applicant’s physical and psychiatric injuries, but could instead simply add those disabilities together so as to arrive at a 100% rating.

Indeed, the majority did not conclude that the physician could choose to ignore the CVC and add the disabilities together (see Athens Administrators v. Workers’ Comp. Appeals Bd. (Kite) (2013) 78 Cal. Comp. Cases 213 (writ den.)) but that the WCALJ could use the additive approach consistent with the WCALJ’s ability to determine permanent and total disability “in accordance with the fact…”

Ironically, in emphasizing that the 2005 PDRS is nothing more than a guide for determining the appropriate level of permanent disability, the majority cited a pre-2005 case that provided that the permanent disability caused by separate body parts can be added together when that results in a more accurate rating. Specifically, the majority found that adding them instead of combining them made particular sense to the extent the WCJ found that the permanent disability caused by the different body parts did not “overlap”. As the dissent in Martinez pointed out, it could be argued that the question of whether the orthopedic and psychiatric conditions overlap could constitute a medical question to be addressed by the medical experts.

In conclusion, the Martinez case should remind the practitioner that when dealing with a serious permanent disability case, the WCAB may be more concerned with whether the outcome appears to reflect an accurate level of permanent disability than perhaps with the precise methodology used in arriving at that accurate level of permanent disability.

Read the Martinez decision.

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