ADJ13285870 · January 19, 2024

The WCJ and WCAB concluded that section 4664(c) imposes a lifetime cap on permanent disability awards by body region and is not an apportionment issue precluded by section 4663(e). The lifetime cap applies despite the presumptions for safety officers under section 4663(e).

From the decision · page 1Applicant seeks reconsideration of the Findings and Award (F&A) issued on October 26, 2023, wherein the workers' compensation administrative law judge (WCJ) found that applicant, while employed as a Highway Patrol Officer from March 13, 1997, to May 13, 2020, sustained industrial injury to the low back, heart, hypertension, psyche, abdomen/groin (in the form of prostate cancer and urinary incontinence), hemorrhoids, hiatal hernia and GERD. The WCJ found that applicant sustained a prior industrial injury resulting in 66 percent permanent disability, and that the prior and current disabilities exceeded the 100 percent lifetime accumulative limit set forth in Labor Code1 section 4664(c)(1)(G). The WCJ reduced applicant's current disability levels to comply with the lifetime limit for that body region, then combined the resulting disability with the disability arising out of other body regions described in section 4664(c)(1), resulting in a net award of 43 percent disability.

Applicant is entitled to multiple statutory presumptions for safety officers under Labor Code sections 3213.2, 3212.1, 3212.3, and 3212.

Favours Applicant prevailed

These presumptions preclude apportionment under section 4663(e) but do not affect the lifetime cap under section 4664(c).

From the decision · page 3On October 26, 2023, the WCJ issued his decision, finding in relevant part that applicant qualified for all of the claimed statutory presumptions. (F&A, Finding of Fact No. 4.) Pursuant to the "non-attribution clause" of section 4663(e), the WCJ determined that the presumptively injured body parts were not subject to apportionment under section 4463. (F&A, Finding of Fact No. 6.)

Applicant's prior award of 66 percent permanent disability for heart and hypertension falls within the same body region as current injuries under section 4664(c)(1)(G).

Favours Defendant prevailed

This prior award triggers the lifetime cap of 100 percent permanent disability for that body region, limiting the current award.

From the decision · page 6Turning to the body regions described in section 4664(c), the WCJ determined that applicant's low back disability of 13 percent would fall under section 4664(c)(1)(D), while applicant's psychiatric disability of zero percent was not relevant to the analysis. The WCJ determined that every other body part and corresponding percentage of disability would fall under the "catch-all" provisions of section 4664(c)(1)(G), which applies to "[t]he head, face, cardiovascular system, respiratory system, and all other systems or regions of the body not listed in subparagraphs (A) to (F), inclusive." (Lab. Code, § 4664(c)(1)(G).) The WCJ determined that applicant's prior award of 66 percent disability arising out injury to the "heart and hypertension" fell within the same body region described under subsection section 4664(c)(1)(G).

From the decision · page 2The parties have selected Qualified Medical Evaluators (QMEs) Mark M. Davidson, M.D., in gastroenterology and internal medicine, and Susan Velasquez, Ph.D., in psychology. Applicant has also been evaluated by Keola Chun, M.D., in orthopedic medicine.

From the decision · page 2The parties have selected Qualified Medical Evaluators (QMEs) Mark M. Davidson, M.D., in gastroenterology and internal medicine, and Susan Velasquez, Ph.D., in psychology. Applicant has also been evaluated by Keola Chun, M.D., in orthopedic medicine.

From the decision · page 2The parties have selected Qualified Medical Evaluators (QMEs) Mark M. Davidson, M.D., in gastroenterology and internal medicine, and Susan Velasquez, Ph.D., in psychology. Applicant has also been evaluated by Keola Chun, M.D., in orthopedic medicine.

Labor Code section 4664(c)

Labor Code section 4664(c) lifetime cap on permanent disability awards by body region

The lifetime cap applies to the accumulation of permanent disability awards for the same body region, limiting total awards to 100 percent unless conclusively presumed total under section 4662.

From the decision · page 5(c) (1) 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 percent over the employee's lifetime unless the employee's injury or illness is conclusively presumed to be total in character pursuant to Section 4662. As used in this section, the regions of the body are the following: (A) Hearing. (B) Vision. (C) Mental and behavioral disorders. (D) The spine. (E) The upper extremities, including the shoulders. (F) The lower extremities, including the hip joints. (G) The head, face, cardiovascular system, respiratory system, and all other systems or regions of the body not listed in subparagraphs (A) to (F), inclusive. (2) Nothing in this section shall be construed to permit the permanent disability rating for each individual injury sustained by an employee arising from the same industrial accident, when added together, from exceeding 100 percent.

Labor Code section 4663(e)

Anti-attribution clause precluding apportionment for presumptive injuries

Section 4663(e) precludes apportionment under subsections (a), (b), and (c) for injuries covered by specified presumptions, but does not preclude the lifetime cap under section 4664(c).

From the decision · page 4Section 4663(a) provides that "[a]pportionment of permanent disability shall be based on causation." (Lab. Code, § 4663(a).) Subsections (b) and (c) generally require that evaluating physicians address apportionment and describe the minimum requirements for the physician's apportionment analysis. (Lab. Code, § 4663(b)-(c).) However, subsection (e) provides that, "[s]ubdivisions (a), (b), and (c) do not apply to injuries or illnesses covered under Sections 3212, 3212.1, 3212.2, 3212.3, 3212.4, 3212.5, 3212.6, 3212.7, 3212.8, 3212.85, 3212.9, 3212.10, 3212.11, 3212.12, 3213, and 3213.2." (Lab. Code, § 4663(e).)

Applicant qualified for multiple statutory presumptions including duty belt, cancer, heart, and hernia presumptions under Labor Code sections 3213.2, 3212.1, 3212.3, and 3212.

From the decision · page 3On October 26, 2023, the WCJ issued his decision, finding in relevant part that applicant qualified for all of the claimed statutory presumptions. (F&A, Finding of Fact No. 4.) Pursuant to the "non-attribution clause" of section 4663(e), the WCJ determined that the presumptively injured body parts were not subject to apportionment under section 4463. (F&A, Finding of Fact No. 6.)

The WCJ found the prior award of 66 percent permanent disability for heart and hypertension fell within the same body region as the current injuries under section 4664(c)(1)(G).

From the decision · page 6Turning to the body regions described in section 4664(c), the WCJ determined that applicant's low back disability of 13 percent would fall under section 4664(c)(1)(D), while applicant's psychiatric disability of zero percent was not relevant to the analysis. The WCJ determined that every other body part and corresponding percentage of disability would fall under the "catch-all" provisions of section 4664(c)(1)(G), which applies to "[t]he head, face, cardiovascular system, respiratory system, and all other systems or regions of the body not listed in subparagraphs (A) to (F), inclusive." (Lab. Code, § 4664(c)(1)(G).) The WCJ determined that applicant's prior award of 66 percent disability arising out injury to the "heart and hypertension" fell within the same body region described under subsection section 4664(c)(1)(G).