What the panel ordered
Petition for Reconsideration denied.
Petition for Reconsideration filed by applicant after WCJ's award of 55% permanent disability with apportionment; WCJ report reviewed and adopted by WCAB panel.
What was disputed, and how it came out
Each issue the panel decided, with the reasoning it gave. An outcome is what this panel did on this record — not a rule, and not a prediction.
Permanent total disabilityDefendant prevailedright shoulder · right elbow · right hand · cervical soft tissue · left shoulder
Applicant failed to prove total loss of use of both hands as required by Labor Code 4662(a)(2) to support total permanent disability; medical and testimonial evidence showed applicant retained some use of hands and fine motor skills.
From the decision · page 5III DISCUSSION Applicant failed to meet her burden pursuant to Labor Code 4662(a)(2) and Labor Code Section 3202.5. The applicant did not meet her burden of proof pursuant to Labor Code sections 4662(a)(2) and 3202.5 to support a finding of total permanent disability. Per Labor Code 4662(a)(2) an injury is conclusively presumed to be a total if it results in the "loss of both hands or the use thereof." Though the appeals board has found the conclusive presumption applied when the evidence showed an applicant was unable to grip, grasp, handle, write, type, or drive, the facts of this case do not support such a finding. Kaiser Foundation Hospitals v. WCAB (Dragomir-Tremoureux) (2006) 71 CCC 538 (writ denied). While the court acknowledges applicant may not be able to use her hands in the way she was able to prior to her industrial injury, based on the applicant's own testimony and that of her daughter, Je1mifer the applicant still has use of her hands including some fine motor capabilities. For instance, applicant testified that she can write a check (Minutes 10/13/21, p.7 ln 8). She testified that her left hand is getting worse because she does everything with her left hand except for writing (Minutes, 10/13/21, p.7 at ln 17-18.).