Permanent Disability Benefits in California Workers’ Compensation Cases
Permanent disability benefits are an important tool to compensate California employees who have suffered long-term injuries on the job.
In California, permanent disability benefits are a type of payment made to employees that suffer a permanent work-related injury or health condition.1 Permanent disability benefits usually become payable when temporary disability benefits end.2
The amount of a permanently-disabled employee’s benefits will depends on several factors, all of which contribute to something called a “disability rating.” A disability rating is a number assigned to employees by a medical professional that reflects the loss of their earning capacity caused by the work-related injury or health condition.3
This article explains the concept of permanent disabilities as it applies to California employees. It also explains how permanent disabilities are rated, why employees and employers might disagree about the appropriate disability rating, and the different rules that apply to physical and mental disabilities.
Chapter 1
The Definition of “Permanent Disability”☍ Click to Copy a Link to This Chapter
California’s workers’ compensation statutes do not define the term “permanent disability.” So, instead, lawyers use court decisions to understand the concept. California courts generally consider a disability to the residual effect of an injury or illness. A disability is considered as permanent if it is irreversible.4
As the term is used in workers’ compensation statutes, a permanent disability is traditionally defined as “the irreversible residual of a work-related injury that causes impairment in earning capacity, impairment in the normal use of a member or a handicap in the open labor market.”5 Courts have recognized two problems with that definition.
First, there is no meaningful distinction between an “impairment in earning capacity” and “a handicap in the open labor market.”6 The definition therefore draws distinctions that are illusory.
Second, the phrase “impairment in the normal use of a member” does not capture the breadth of physical or mental impairments that might be disabling. An impairment of the body or mind may create a disability if it reduces the ability to perform work activities, but also if it reduces the ability to perform the activities of daily living.7
The existence of a compensable permanent disability therefore does not depend upon an impairment of the ability to work. An employee does not need to miss work, to lose a job, or to lose the ability to earn full wages in order to qualify for permanent disability benefits.8 An employee may be permanently disabled due to a work injury even if the employee did not receive temporary disability benefits.9
Disability vs. Impairment
A physical or mental impairment, however, is not necessarily the same as a physical or mental disability. An impairment is “a loss, loss of use, or derangement of any body part, organ system or organ function.”10
From a medical perspective, the severity of an impairment is measured by the degree to which it reduces the ability to perform activities of daily living, excluding work. Impairment ratings reflect functional limitations, not disabilities.11
In workers’ compensation cases, impairments are evaluated by physicians and are then considered in conjunction with other factors to arrive at a disability rating.
Meaning of “Permanent”
While courts define a permanent disability as one that is irreversible, employees with disabilities that are expected to be permanent do sometimes heal.
As a practical matter, since it is impossible to be certain whether a health condition will improve at some point in the future, a disability is “considered permanent when the employee has reached maximal medical improvement, meaning his or her condition is well stabilized, and unlikely to change substantially in the next year with or without medical treatment.”12
Permanent Mental Health Disabilities
Both physical and mental (“psychiatric”) disabilities are covered by workers’ compensation.13 However, coverage of mental health disabilities is in some respects more limited than coverage of physical disabilities.
In addition, California law requires “a higher threshold of compensability for psychiatric injury.”14 This article discusses the distinction between benefits for physical and mental health disabilities below.
Chapter 2
Purpose of Permanent Disability Benefits☍ Click to Copy a Link to This Chapter
Compensation for permanent disabilities caused by a job-related injury differs from compensation awarded in a civil lawsuit to victims of negligence. Compensation in a negligence case is designed to make the injury victim whole. That means reimbursing losses caused by the accident and, to the extent possible, restoring the victim to the position the victim occupied before the accident.
While it is not literally possible to make a disability disappear, compensation helps victims of negligence cope with their disabilities (for example, by paying for the services of a caretaker who will assist with tasks that the victim can no longer perform). Negligence victims are also compensated for pain and suffering.
Unlike damages awarded in a negligence lawsuit, workers’ compensation benefits are not meant to make an injury victim whole.15 As part of the “bargain” between workers and employers,16 injured employees are not compensated for pain and suffering and do not necessarily receive full compensation for the losses that are caused by their disabilities.17
In exchange, employees are relieved of the obligation to prove that their employer was negligent or otherwise at fault for the event that caused the injury.18
Workers’ compensation benefits are intended to help disabled workers avoid poverty so that they do not become dependent upon taxpayers for support.19 While permanent disability benefits are not be as generous as compensation for permanent injuries that could be awarded in a lawsuit for negligence, there are some similarities between the two systems.
For example, permanent disability benefits, like damages for injuries caused by negligence, are meant to compensate injury victims “for both physical loss and the loss of some or all of their future earning capacity.”20
Chapter 3
Compensable Permanent Disabilities☍ Click to Copy a Link to This Chapter
Permanent disability benefits are available for permanent disabilities that have a job-related cause.21 Permanent disabilities can be caused by a single event (such as an accident or exposure to a poison) or by the cumulative effect of repetitive events or exposures over time (such as a carpal tunnel impairment caused by repetitive motion, daily exposure to extremely stressful conditions that causes a mental health disorder, or the daily inhalation or absorption of a toxic substance).22
All workers’ compensation benefits are conditioned on the employee’s ability to establish that an injury or health condition arose out of and in the course of employment.23 The employee must prove that, “at the time of the injury, the employee [was] performing service growing out of and incidental to his or her employment and [was] acting within the course of his or her employment.”24 The employee must also prove that the injury was caused by employment.25
To obtain permanent disability benefits, however, an employee must also prove that the disability was caused by a work-related injury or health condition. For example, a fall at work might cause a knee injury that would require the employer to provide medical treatment and temporary disability benefits.
To obtain permanent disability benefits based on a continuing instability in the knee, the employee would need to prove that the instability was caused, at least in part, by the work injury rather than other factors (such as a subsequent recreational injury).
If an injury might be caused in part by work and in part by other factors, issues of apportionment arise. Apportionment is discussed below.
Chapter 4
Evaluating Permanent Impairments☍ Click to Copy a Link to This Chapter
The existence of a permanent disability must be established by medical evidence. California’s workers’ compensation scheme establishes a specific procedure that is designed to allow employees to obtain that evidence efficiently.
Permanent and Stationary Injuries
When employees receive employer-provided medical treatment for an injury, they are assigned to a primary treating physician.26 That physician is responsible for rendering medical opinions that are relevant to workers’ compensation benefits.27 Whether the employee has a permanent impairment is one of those opinions.
As noted above, a physician will decide that an injury is “permanent” if it is “unlikely to change substantially in the next year with or without medical treatment.”28 A physician should decide that an injury is “stationary” if it has stabilized and is no longer healing or worsening.29
An injury might be considered “stationary” even if it causes a deteriorating condition that will likely lead to the employee’s death in the future, simply because it would be unfair to give permanent disability benefits to an employee who will survive an injury while denying them to an employee who will likely die from an injury.30
To assure that permanent disability benefits are not unreasonably delayed, the possibility that an employee’s condition might fluctuate will not necessarily prevent a determination that the injury is stationary.
An employee’s ability to return to work does not determine whether the employee has an injury that is permanent and stationary.31 An employee’s need for further medical treatment does not foreclose a finding that a condition is permanent and stationary if the treatment is meant to relieve symptoms, not to cure the condition.32
Permanent & Stationary Report
The primary treating physician expresses the opinion that an injury or condition has become “permanent and stationary” (P&S) by writing a P&S report. The physician must usually write that report within 20 days after determining that the employee’s injury or health condition has become permanent and stationary.33
The P&S Report describes:
- The existence and extent of any permanent impairment,
- The existence and extent of the employee’s limitations, and
- The employee’s need for continuing and future health care for the injury.34
The P&S report must “rate” each permanent impairment according to a standardized system known as “whole person impairment” (WPI).35 The report must also state:
- Whether each permanent impairment was caused by an injury arising out of and in the scope of employment, and
- Whether each permanent impairment was caused, in whole or in part, by any factors other than employment.
If the physician answers “yes” to the second question, the physician must apportion the percentage of the disability that was caused by employment and the percentage that was caused by other factors.36
Whole Person Impairment
As the result of a 2004 “reform” of California’s workers’ compensation system, the legislature directed the Workers’ Compensation Division to create a rating schedule of impairments based on specified data from empirical studies in order to promote consistency, uniformity, and objectivity in rating injuries.37
The Division accomplished that task by adopting the AMA Guides to the Evaluation of Permanent Impairment 5th Edition (“AMA Guides”).38 The law was “reformed” again in 2013, but the current law continues to require impairments to be assessed in accordance with the AMA Guides.39
The AMA Guides define WPI as “[p]ercentages that estimate the impact on the individual’s overall ability to perform activities of daily living, excluding work.”40 Those percentages reflect consensus estimates of the degree to which the impairment decreases an individual’s ability to perform common activities of daily living (such as walking and grooming).
While the AMA Guides might be seen as a precise and uniform means of assigning a WPI rating to an impairment, injuries and resulting impairments do no always fit within tidy categories. Given that no two human bodies are identical, physicians must often exercise judgment in deciding how to assess a particular impairment in a particular patient. A mechanical application of the AMA Guides must give way to a realistic evaluation of the actual impairment experienced by the individual patient.41
In particular, when a health condition is poorly understood and its evaluation is based largely on subjective complaints rather than objective observations, physicians may need to exercise clinical judgment to rate the impairment accurately. Such an assessment may require physicians to draw analogies to impairments that are described in the AMA Guides when the Guides do not adequately address a patient’s particular impairment.42
Qualified Medical Evaluations
Injured employees do not always agree with the content of a P&S report. Employees might believe they have a continuing impairment that the physician believes has completely healed. Employees might believe that their physician misunderstood the nature or severity of an impairment when assigning a WPI. Disagreements might also arise concerning apportionment of the causes of an injury or the work that an employee is able to do.
Employers might also disagree with a P&S report. Those disagreements usually take one of two forms. The employer might disagree that the employee sustained an injury that workers’ compensation covers, or the employer might agree that the employee has a permanent disability while disagreeing with the treating physician’s assessment of that disability in the P&S report.
When an employer disagrees with a treating physician’s determination that the employee has a permanent impairment resulting from a work injury, the employer must notify the employee of its opposition to paying a permanent disability benefit when it makes its last temporary disability payment.43 The employer can request a medical evaluation by a Qualified Medical Evaluator (QME) if it disagrees with the P&S report about “the existence or extent of permanent impairment and limitations or the need for future medical care.”44
When an employer disputes that an employee has a compensable injury (i.e., an injury that is covered by workers’ compensation benefits), either party can request a medical evaluation by a QME.45 When an employer wants to obtain a medical evaluation of an unrepresented employee before deciding whether to pay compensation, or when an employer has decided not to pay compensation to an unrepresented employee, special procedures apply.46
When an employee is dissatisfied with a P&S report, the employee will need to make a strategic decision about requesting a medical evaluation by a QME. Employees may wish to seek legal advice before making that decision, because the result reached by a QME might be less favorable than the P&S report.
If an employee does want an evaluation,47 the employee must request the assignment of a QME within 20 days after receipt of the P&S report if the injured employee is represented by counsel, or within 30 days if the employee has no lawyer.48
If the employee has a lawyer, a medical evaluation can be performed by an Agreed Medical Evaluator (AME), a physician who is chosen by the agreement of the claims administrator and the employee’s lawyer.49
Whether or not the employee is represented, the employee (or the employee’s lawyer) may “request the assignment of a three-member panel of qualified medical evaluators to conduct a comprehensive medical evaluation,” designating the specialty of the physicians who should be assigned to the panel.50
One of the three QMEs on the list must be chosen to conduct the evaluation. If the employee has no lawyer, the employee makes that choice.51 If the employee is represented, the lawyer and the claims administrator each strike one name from the list of three QMEs, and the remaining QME performs the evaluation.52
Communication with the QME by the employee, the employee’s lawyer, or the claims administrator prior to the examination (other than communications to schedule or reschedule appointments) must be in writing and a copy must be provided to the opposing party.53 The employee may have verbal communication with the QME during the examination or as requested by the QME.54
After the examination, the QME writes a report and provides a copy to the employee and the employer. The report must address “all contested medical issues arising from all injuries reported on one or more claim forms prior to the date of the employee’s initial appointment with the medical evaluator.”55
As a general rule, an employee is only entitled to one evaluation.56 An employee who obtains an evaluation by a QME and is not represented by an attorney is not entitled to a second evaluation after hiring an attorney.57 An employee who obtains an evaluation by a QME while represented by an attorney is not entitled to a second evaluation after discharging the attorney.58
Employers are generally responsible for paying the cost of a medical evaluation by a QME.59 Employees can, at their own expense, obtain a medical evaluation from a physician other than a QME.60 Employees may use that evaluation in settlement negotiations or may introduce the evaluation into evidence at a contested hearing. However, the report may not be “the sole basis” for compensation awarded by a workers’ compensation judge. In addition, the QME must address the report prepared by the physician hired by the employee, stating “whether he or she agrees or disagrees with the findings or opinions stated in the report, and shall identify the bases for this opinion.”61
Chapter 5
Disability Ratings and Their Role in Benefit Awards☍ Click to Copy a Link to This Chapter
The next step in determining permanent disability benefits is to assign a permanent disability rating to the injured employee. A permanent disability rating is intended to reflect the loss of a disabled employee’s earning capacity. The rating is expressed as a percentage ranging from 0% (no disability that reduces earning capacity) to 100% (permanent total disability).62 Any rating above 0% but less than 100% reflects a permanent partial disability (PPD).
For injuries on or after January 1, 2013,63 a disability rating is generally based on three factors:
- The nature of the physical injury or disfigurement,
- The occupation of the injured employee, and
- The injured employee’s age at the time of injury.64
Nature of Physical Injury or Disfigurement
The “nature of the physical injury or disfigurement” is usually determined by reviewing the P&S report and, if there was one, the report prepared by the AME or QME. The WPI assigned to an impairment by the treating physician or qualified medical evaluator is usually multiplied by an adjustment factor of 1.4 to calculate a disability rating.65
No adjustment factor is applied to certain impairments, including:
- Sleep dysfunction,
- Sexual dysfunction,
- Psychiatric disorder, or
- Any combination of the above.66
Employee’s Occupation
The “occupation of the injured worker” is determined by identifying the employee’s on a list of occupations included in the disability rating schedule, and assigning the occupation to one of 45 occupational groups. Adjustments are then made depending on the type of work the employee actually performs and the nature of the injury. The initial disability rating might be adjusted up or down, depending on the employee’s occupation and the type of work the employee performs.67
More than one occupational group may apply to an applicant’s job. In that event, the rating should be based on the occupation that give the employee the greatest benefit.68
Employee’s Age
The age adjustment typically increases the disability rating if the employee is over the age of 41 and decreases the disability rating if the employee is under the age of 37. Very low and very high disability ratings are less likely to be affected the employee’s age.69
Multiple Impairments
When a worker has multiple work injuries that result in more than one impairment, each impairment must be separately assessed and each will typically result in a separate permanent disability benefit.70 This may result in a lower permanent disability payment than would occur if the injuries were combined and their impact assessed as a whole.71
The general prohibition against combining impairments caused by separate injuries is a consequence of the 2004 “reform” of apportionment rules discussed below. There may be limited circumstances, however, “when the evaluating physician cannot parcel out, with reasonable medical probability, the approximate percentage as to which each distinct industrial injury causally contributed to the employee’s overall permanent disability. In such limited circumstances . . . a combined award of permanent disability may still be justified.”72
Total Disability
A permanent disability rating of 100% is uncommon. However, certain impairments are automatically rated as total disabilities:
- Loss of sight in both eyes,
- Loss of use of both hands,
- Total paralysis, and
- A brain injury resulting in permanent mental incapacity73
No other impairments are conclusively presumed to cause a total disability. Rather, the determination that an employee is totally disabled must be based on the process described above, which requires the nature of the injuries the employee sustained to be carefully evaluated and a WMI to be assigned.74
Apportionment
A disability can have more than one cause. Disputes frequently arise in workers’ compensation cases about the amount of a disability that was caused by a work-related injury (an “industrial” cause) and the amount that was caused by events that are unrelated to work (“nonindustrial” causes).
Employers are generally responsible for permanent disability benefits that relate to the part of a disability that has an industrial cause, not the part that has a nonindustrial cause.75 Determining the percentage of the disability that was caused by an industrial injury and the percentage that was caused by nonindustrial injuries is known as apportionment.76
Treating physicians “apportion” the causes of a permanent disability when they write a P&S report.77 Apportionment is also an issue that can be addressed in by a QME.
Before 2004, if an employee had a preexisting condition that was not disabling but became disabled after suffering a work accident that aggravated the preexisting condition, no apportionment was permitted. In addition, if an employee was awarded a permanent disability benefit and the disability was later rehabilitated or cured, no apportionment was permitted if a new work injury aggravated the preexisting condition, provided the prior condition was no longer disabling at the time of the new accident.78
The 2004 “reform” changed the law by basing apportionment on causation.79 It accomplished that goal in two ways. First, the legislature limited an employer’s liability to the amount of permanent disability directly caused by a current industrial event (such as an accident or an exposure to a toxic substance).80 If a preexisting but nondisabling injury or health condition contributed to the permanent disability, the employer is only liable for the portion of the disability that is caused by the current work injury.81
Second, if the employee previously received a workers’ compensation permanent disability benefit for an impairment, the legislature requires workers’ compensation judges to conclude that the impairment still exists.82 The actual facts make no difference because the judge is not allowed to consider evidence that the employee was not disabled when the new injury occurred.83
Apportionment is only required if the new injury “overlaps” the former injury. An overlap occurs when the prior impairment and the current impairment affect the same abilities, in whole or in part.84 An employer that seeks apportionment has the burden of proving that the employee had a prior injury for which it was not responsible and that the injuries overlap.85
Employees must disclose prior impairments and disabilities when they make a claim for disability benefits.86 When prior impairments or conditions contributed to the employee’s current disability, a physician who writes a P&S report must “make an apportionment determination by finding what approximate percentage of the permanent disability was caused by the direct result of injury arising out of and occurring in the course of employment and what approximate percentage of the permanent disability was caused by other factors both before and subsequent to the industrial injury, including prior industrial injuries.”87
As an example, if an employee has an unstable knee that prevents the employee from squatting or climbing ladders, a physician might decide that 75% of the disability was caused when a forklift drove into the employee’s knee in the workplace, while 25% was caused by an old football injury. The legislature presumably used the word “approximate” because medical science does not permit those determinations to be made with precision. In fact, doctors in workers’ compensation cases often disagree about apportionment issues. How those disagreements are resolved can have a significant impact on the award of permanent disability benefits.
Disability Ratings for “Accumulated” Injuries
Another apportionment-related “reform” in 2004 limited the disability rating that can be assigned for an accumulation of injuries to the same regions of the body to 100% during the employee’s lifetime.88 In other words, if a first spinal injury produced a disability rating of 35% and a second spinal injury produced a disability rating of 40%, a third spinal injury cannot result in a disability rating of more than 25%, no matter how severe it might be. For the purpose of the statute, the “regions of the body” are:
- Hearing;
- Vision;
- Mental and behavioral disorders;
- The spine;
- The upper extremities, including the shoulders;
- The lower extremities, including the hip joints; and
- The head, face, cardiovascular system, respiratory system, and all other systems or regions of the body not listed above.
It is possible for the combined disability ratings of separate injuries sustained in the same job-related accident to exceed 100%.89 As we have seen, however, disability ratings for separate injuries are not combined for the purpose of awarding permanent disability benefits.
Chapter 6
Resolving Disputes About Disability Ratings☍ Click to Copy a Link to This Chapter
Given all the variables that determine a disability rating, it isn’t surprising that injured employees and claims administrators often disagree about the correct disability rating. In many cases, the injured employee’s lawyer and the claims administrator will each determine a disability rating and then will negotiate a settlement that bridges their differences. If they cannot come to an agreement, it may be necessary to have a workers’ compensation judge resolve the dispute after taking evidence at a contested hearing. The judge will probably request the preparation of a formal rating by the Disability Evaluation Unit (DEU) of the Division of Workers’ Compensation.90
When an employee is not represented by counsel, either the employee or the claims administrator may ask the DEU to prepare a permanent disability rating.91 This is known as a summary rating.92
For the purpose of facilitating a settlement, the DEU may prepare a consultative rating determination to offer an opinion about certain matters that might be in dispute.93 A consultative rating determination may be requested by officials of the Workers’ Compensation Division,94 by an injured employee’s attorney, or by a claims administrator.95
A consultative rating determination must usually be requested before an application for a contested hearing is filed with the Workers’ Compensation Appeals Board.96
Chapter 7
Calculating the Amount of Permanent Disability Benefits☍ Click to Copy a Link to This Chapter
A formula is used to calculate permanent disability benefits. Disability ratings are divided into seven ranges. A number of weeks for which benefits will be paid is assigned to each range. Each weekly benefit payment equals two-thirds of the employee’s average weekly earnings for each 1 percent of permanent disability.97 However, for injuries occurring in 2014 or later, “average weekly earnings” are not less than $240 and not more than $435.98
For example, an employee with a disability rating between 15% and 24.75% is entitled to 5 weeks of disability benefits for each percentage of disability. An employee with a permanent disability rating of 20% would therefore receive a benefit payment for 100 weeks. If the employee’s average weekly earnings are $435, the employee will receive two-thirds of that amount, or $290, each week for 100 weeks, for a total benefit of $29,000.
To the extent that the “percentage of permanent disability” is based on the rating schedule described above, a workers’ compensation judge will accept the rating as presumptively correct and will calculate the permanent disability benefit accordingly.99 Under limited circumstances, however, a judge may depart from the schedule and award a larger disability benefit than the formula would otherwise allow. Those circumstances include:
- The schedules were based on an error of fact;
- The injury impairs the employee’s rehabilitation, and for that reason, the employee’s diminished future earning capacity is greater than the employee’s scheduled rating reflects; or
- The nature or severity of the employee’s injury is not captured within the sampling of disabled workers that was used to compute the adjustment factor.100
Under those circumstances, employees have an opportunity to argue for higher benefits than their disability rating would otherwise permit. That opportunity is important, since workers’ compensation “reform” has historically reduced the benefits that injured workers receive for their permanent disabilities.
Finally, benefits are extended for particularly serious disabilities. When a permanent disability is at least 70% (but not total), the employee is entitled to a life pension.101 When an employee has a total permanent disability, the employee is entitled to a life pension at the rate paid for total temporary disabilities.102 Claims administrators generally fight to avoid a disability rating of 70% or higher because of the extra benefits that must be paid.
Chapter 8
Mental Health Disabilities☍ Click to Copy a Link to This Chapter
Permanent disability benefits are usually awarded for physical injuries, but they are also available for permanent impairments of mental health. Workers’ compensation law in California describes mental health impairments as “psychiatric injuries.” The law defines a compensable psychiatric injury as a “mental disorder” that needs treatment or is disabling.103 Standardized descriptions of mental disorders appear in the Diagnostic and Statistical Manual of Mental Disorders, which is now in its fifth edition.104
When an injury causes a physical disability that produces a mental disorder, the disability rating is usually based only on the physical injury.105 However, when a job-related accident produces both a physical disability and a mental disorder, the mental disorder can be rated as a separate impairment, provided that it was caused by the accident and not by the physical injury.106
For example, if an employee is holding a tool that explodes, an impairment rating for a disabled hand cannot be increased simply because the disability caused the employee to become severely depressed. However, if the explosion itself caused post-traumatic stress disorder, the employee would be entitled to a disability rating that includes the disorder.
Limitations on benefits for mental health injuries
An employee must usually work for an employer for six months before becoming eligible for permanent disability benefits related to mental health injuries. The six month period need not be continuous employment. However, the six-month employment requirement does not apply to mental disorders that are caused by “a sudden and extraordinary employment condition.”107
Accidents that are “uncommon, unusual, and totally unexpected” meet the “sudden and unexpected employment condition” exception if they are the kind of events that would naturally be expected to cause a mental health injury even in an honest, hardworking employee.108 On the other hand, routine accidents and known occupational hazards, such as falling from a ladder, do not usually qualify as a “sudden and unexpected employment condition.”109
After six months of employment, permanent disability benefits are available for job-related mental health injuries that qualify as mental disorders,110 but only if the employee can prove that “actual events of employment were predominant as to all causes combined of the psychiatric injury.”111
Courts have interpreted that language to mean that workers’ compensation benefits are available only if work-related events caused more than 50% of the mental health injury.112
However, if the employee’s mental health injury “resulted from being a victim of a violent act or from direct exposure to a significant violent act,” the employee is entitled to workers’ compensation benefits if the violent act was a “substantial cause” of the injury.113 A “substantial cause” is one that contributed at least 35 to 40 percent of the injury, even if combined with other causes.114
The term “violent act” could be understood to mean intentional acts of violence in the workplace, but the Workers’ Compensation Appeals Board has construed the phrase to include “an act that is characterized by either strong physical force, extreme or intense force, or an act that is vehemently or passionately threatening.”115 The Board determined that a severe traffic accident causing a broken neck that threatened the employee’s life was a “violent act” under that definition.116 Whether California courts will adopt a similarly expansive view of the term “violent act” is not yet known.
Personnel Actions
An employee cannot receive workers’ compensation benefits for psychiatric injuries that were “substantially caused by a lawful, nondiscriminatory, good faith personnel action.”117 In other words, an employee cannot obtain benefits for mental health injuries caused by a routine personnel decision (such as discipline, evaluations, transfer, demotion, layoff, or termination) that is carried out with subjective good faith and is objectively reasonable.118
All causes of a psychiatric injury must be taken into account when deciding whether a good faith personnel decision was a substantial cause of the injury.119
Rating Mental Health Injuries
To determine a disability rating for psychiatric injuries, a physician must first determine the employee’s Global Assessment Functioning (GAF) score. A conversion table is then used to assign a whole person impairment rating.120 That impairment rating is a factor that determines the disability rating using the method discussed above.
References
Labor Code, § 4650, subd. (b).↥
Labor Code, § 4650, subd. (b)(1) [“If the injury causes permanent disability, the first payment shall be made within 14 days after the date of last payment of temporary disability indemnity”].↥
Labor Code, § 4660, subd. (a) [“In determining the percentages of permanent disability, account shall be taken of the nature of the physical injury or disfigurement, the occupation of the injured employee, and his or her age at the time of the injury, consideration being given to an employee’s diminished future earning capacity.”].↥
See Brodie v. Workers’ Comp. Appeals Bd., 40 Cal. 4th 1313, 57 Cal.Rptr.3d 644, 648, 156 P.3d 1100 (2007) (citing Kopping v. Workers’ Comp. Appeals Bd., 142 Cal.App.4th 1099, 1111, 48 Cal.Rptr.3d 618 (2006)).↥
Ogilvie v. Workers’ Comp. Appeals Bd., 197 Cal.App.4th 1262, 1270, 129 Cal.Rptr.3d 704 (2011).↥
City of Sebastopol v. Workers’ Comp. Appeals Bd., 208 Cal.App.4th 1197, 1208, 146 Cal.Rptr.3d 713 (2012) (“the terms ‘diminished future earning capacity’ and ‘ability to compete in an open labor market’ have no meaningful difference”).↥
See Ogilvie, 197 Cal.App.4th at 1270 (“Payments for permanent disability are designed to compensate an injured employee both for physical loss and reduction in earning capacity.”); Mark Gearheart, Post SB 863 PDRS Rebuttal: The Return to Simplicity, Cal. Applicant’s Att’ys Ass’n (2015), wrklyrs.com/2Lg3MFD (Opens in new window) (permanent disability can consist of the impairment itself or the effect of the impairment upon the ability to perform work activities, to perform the activities of daily living, or to earn a living).↥
City of Sebastopol v. Workers’ Comp. Appeals Bd., 208 Cal.App.4th 1197, 1207, 146 Cal.Rptr.3d 713 (2012) (“Loss of earning power is not a prerequisite to permanent disability status. Moreover, an injured employee need not be out of work in order to receive PDI.”) (citation omitted).↥
City of Sebastopol, 208 Cal.App.4th at 1207 (“Where, as here, temporary disability payments have not been made, payment of PDI is typically owed following the date permanent and stationary status is achieved.”).↥
Milpitas Unified Sch. Dist. v. Workers’ Comp. Appeals Bd., 187 Cal.App.4th 808, 819, 115 Cal.Rptr.3d 112 (2010) (quoting AMA, Guides to the Evaluation of Permanent Impairment § 1.2 (5th Edition 2000).↥
Milpitas Unified Sch. Dist., 187 Cal.App.4th at 819 (“The impairment ratings provided in the Guides ‘were designed to reflect functional limitations and not disability.’ (Guides, § 1.2, p. 4.) They ‘reflect the severity of the medical condition and the degree to which the impairment decreases an individual’s ability to perform common activities of daily living (ADL), excluding work.’ (Guides, § 1.2, p. 4.)”) (footnote omitted).↥
Cal. Code Regs., tit. 8, § 10152.↥
Livitsanos v. Superior Court (1992) 2 Cal. 4th 744, 753 (“Thus, compensable injuries may be physical, emotional or both, so long as they are disabling.”).↥
Livitsanos, 2 Cal. 4th at 753-54.↥
Ogilvie v. Workers’ Comp. Appeals Bd., 197 Cal.App.4th 1262, 1270, 129 Cal.Rptr.3d 704 (2011) (“workers’ compensation benefits are not damages awarded due to injury, and are not designed to restore to the worker all he has lost”).↥
Courts frequently refer to a “compensation bargain” between employers and workers. The bargain is said to reflect the employers’ agreement to accept liability for workplace deaths and injuries without regard to fault, in exchange for limiting the wide range of damages that are available in fault-based personal injury cases. See, e.g., Charles J. Vacanti, M.D., Inc. v. State Comp. Ins. Fund, 24 Cal. 4th 800, 102 Cal. Rptr. 2d 562, 573, 14 P.3d 234 (2001) (discussing the terms of the “theoretical” or “presumed” compensation bargain).↥
Gamble v. Workers’ Comp. Appeals Bd., 143 Cal.App.4th 71, 49 Cal.Rptr.3d 36, 40 (2006) (“Permanent disability indemnity is awarded injured workers in California in lieu of tort damages against employers.”).↥
Labor Code, § 3600(a) (“Liability for the compensation provided by this division . . . shall, without regard to negligence, exist against an employer for any injury sustained by his or her employees arising out of and in the course of the employment . . . .”); Privette v. Superior Court of Santa Clara County, 5 Cal. 4th 689, 697, 21 Cal. Rptr. 2d 72, 854 P.2d 721 (1993) (describing the payment of compensation for industrial injuries regardless of fault as one of the objectives of California’s workers’ compensation scheme).↥
Gamble v. Workers’ Comp. Appeals Bd., 143 Cal.App.4th 71, 49 Cal.Rptr.3d 36, 39 (2006) (“the purpose of an award under the workers’ compensation scheme ‘is not to make the employee whole for the loss which he has suffered but to prevent him and his dependents from becoming public charges during the period of his disability.'”) (citation omitted).↥
Brodie v. Workers’ Comp. Appeals Bd., 57 Cal.Rptr.3d 644, 648, 40 Cal. 4th 1313, 156 P.3d 1100 (2007).↥
Livitsanos v. Superior Court, 2 Cal. 4th 744, 753, 7 Cal. Rptr. 2d 808, 828 P.2d 1195 (1992), (“the workers’ compensation system is designed to compensate only for such disability or need for treatment as is occupationally related”).↥
See Labor Code, § 3208.1 (“An injury may be either: (a) ‘specific,’ occurring as the result of one incident or exposure which causes disability or need for medical treatment; or (b) ‘cumulative,’ occurring as repetitive mentally or physically traumatic activities extending over a period of time, the combined effect of which causes any disability or need for medical treatment.”).↥
Labor Code, § 3600(a).↥
Labor Code, § 3600(a)(2).↥
Labor Code, § 3600(a)(3).↥
“The ‘primary treating physician’ is the physician who is primarily responsible for managing the care of an employee, and who has examined the employee at least once for the purpose of rendering or prescribing treatment and has monitored the effect of the treatment thereafter.” Cal. Code Reg., tit. 8, § 9785(a)(1).↥
Cal. Code Reg., tit. 8, § 9785(d) (“The primary treating physician shall render opinions on all medical issues necessary to determine the employee’s eligibility for compensation . . . .”).↥
Cal. Code Regs., tit. 8, § 10152.↥
See Sweeney v. Indus. Acc. Comm’n., 107 Cal. App. 2d 155, 159 (1955) (disability is permanent when healing period is over and an unchanging aftermath of the injury exists); Gamble v. Workers’ Comp. Appeals Bd., 143 Cal.App.4th 71, 49 Cal.Rptr.3d 36, 39-40 (2006) (an employee who is still in a healing period receives temporary disability benefits, while permanent disability benefits are paid after the employee’s condition becomes permanent and stationary).↥
Dahlbeck v. Indus. Acc. Comm’n., 135 Cal. App. 2d 394, 400 (1955) (“No reason other than easy practical application of the law suggests itself in support of the view that one whose occupational disease has been arrested may receive the benefit of a subsequent injury award when one who is fatally stricken as a result of industrial injury (e.g., silicosis, asbestosis, radiation toxemia, carbon tetrachloride poisoning) may not enjoy the beneficent balm of that same statute.”). When an employee has a progressive disease, the Workers’ Compensation Appeals Board can prevent the expiration of the statute of limitations for making a claim for permanent disability benefits by reserving jurisdiction to decide whether the condition has become permanent and stationary. The Board can instead award permanent disability benefits while reserving jurisdiction to modify the benefits if the disability becomes more severe in the future. General Foundry Service v. Workers’ Comp. Appeals Bd., 42 Cal. 3d 331, 337, 228 Cal. Rptr. 243, 721 P.2d 124 (1986).↥
Huston v. Workers’ Comp. Appeals Bd., 95 Cal.App.3d 856, 868, 157 Cal. Rptr. 355 (1979) (“Permanent and stationary status refers to medical rehabilitation from an injury, not the ability to work.”)↥
See Bstandig v. Workers’ Comp. Appeals Bd., 68 Cal. App. 3d 988, 996, 137 Cal. Rptr. 713 (1977) (a knee condition could be permanent and stationary even if it would require a lifetime of treatment to relieve symptoms).↥
Cal. Code Regs., tit. 8, § 9785(h) (“When the primary treating physician determines that the employee’s condition is permanent and stationary, the physician shall, unless good cause is shown, report within 20 days from the date of examination any findings concerning the existence and extent of permanent impairment and limitations and any need for continuing and/or future medical care resulting from the injury.”).↥
Cal. Code Regs., tit. 8, § 9785(h).↥
Cal. Code Regs., tit. 8, § 9785(h) (“For permanent disability evaluation performed pursuant to the permanent disability evaluation schedule adopted on or after January 1, 2005, the primary treating physician’s reports concerning the existence and extent of permanent impairment shall describe the impairment in accordance with the AMA Guides to the Evaluation on Permanent Impairment, 5th Edition (DWC Form PR-4).”).↥
See Cal. Code Reg., tit. 8, § 9785.4 (“Form PR-4 ‘Primary Treating Physician’s Permanent and Stationary Report'”).↥
See Labor Code, § 4660 (applicable to pre-2013 injuries); Bontempo v. Workers’ Comp. Appeals Bd., 173 Cal.App.4th 689, 695, 93 Cal.Rptr.3d 229 (2009) (“As part of the 2004 comprehensive revisions, the Legislature amended section 4660 to require a new rating schedule incorporating the American Medical Association (AMA) guidelines for the evaluation of permanent disability.”).↥
Milpitas Unified Sch. Dist. v. Workers’ Comp. Appeals Bd., 187 Cal.App.4th 808, 818, 115 Cal.Rptr.3d 112 (2010) (“As so directed, the administrative director published a new PDRS effective January 1, 2005, which incorporated the fifth edition of the Guides in its entirety.”).↥
Labor Code, § 4660.1(b) (“For purposes of this section, the “nature of the physical injury or disfigurement” shall incorporate the descriptions and measurements of physical impairments and the corresponding percentages of impairments published in the American Medical Association (AMA) Guides to the Evaluation of Permanent Impairment (5th Edition) with the employee’s whole person impairment, as provided in the Guides, multiplied by an adjustment factor of 1.4.”).↥
Milpitas Unified Sch. Dist., 187 Cal.App.4th at 814 n.5.↥
Milpitas Unified Sch. Dist., 187 Cal.App.4th at 822 (“Section 4660, subdivision (b)(1), recognizes the variety and unpredictability of medical situations by requiring incorporation of the descriptions, measurements, and corresponding percentages in the Guides for each impairment, not their mechanical application without regard to how accurately and completely they reflect the actual impairment sustained by the patient . . . . By using the word ‘incorporation,’ the Legislature recognized that not every injury can be accurately described by the classifications designated for the particular body part involved.”).↥
See City of Sacramento v. Workers’ Comp. Appeals Bd., 222 Cal. App.4th 1360, 1371-72, 167 Cal.Rptr.3d 1 (2013) (physician reasonably exercised clinical judgment in assigning WPI to plantar fasciitis because the condition is manifested only by the subjective experience of pain).↥
Labor Code, § 4061(a).↥
Labor Code, § 4061(b), (c).↥
See Labor Code, § 4060(c) (“If a medical evaluation is required to determine compensability at any time after the filing of the claim form, and the employee is represented by an attorney, a medical evaluation to determine compensability shall be obtained only by the procedure provided in Section 4062.2.”); Labor Code, § 4062.2(b) (“No earlier than the first working day that is at least 10 days after the date of mailing of a request for a medical evaluation pursuant to Section 4060 . . . either party may request the assignment of a three-member panel of qualified medical evaluators to conduct a comprehensive medical evaluation.”).↥
See Labor Code, § 4060(d) (“If a medical evaluation is required to determine compensability at any time after the claim form is filed, and the employee is not represented by an attorney, the employer shall provide the employee with notice either that the employer requests a comprehensive medical evaluation to determine compensability or that the employer has not accepted liability and the employee may request a comprehensive medical evaluation to determine compensability. Either party may request a comprehensive medical evaluation to determine compensability. The evaluation shall be obtained only by the procedure provided in Section 4062.1.”); Labor Code, § 4062.1(b) (“If either party requests a medical evaluation pursuant to Section 4060, 4061, or 4062, either party may submit the form prescribed by the administrative director requesting the medical director to assign a panel of three qualified medical evaluators in accordance with Section 139.2. However, the employer may not submit the form unless the employee has not submitted the form within 10 days after the employer has furnished the form to the employee and requested the employee to submit the form. The party submitting the request form shall designate the specialty of the physicians that will be assigned to the panel.”).↥
This is sometimes referred to as a “comprehensive medical evaluation” or a “comprehensive medical-legal evaluation.”↥
Labor Code, § 4062(a) (“If either the employee or employer objects to a medical determination made by the treating physician concerning any medical issues not covered by Section 4060 or 4061 and not subject to Section 4610, the objecting party shall notify the other party in writing of the objection within 20 days of receipt of the report if the employee is represented by an attorney or within 30 days of receipt of the report if the employee is not represented by an attorney. These time limits may be extended for good cause or by mutual agreement.”).↥
Labor Code, § 4062.2(f) (“The parties may agree to an agreed medical evaluator at any time . . . .”). An AME cannot perform the evaluation if the employee is not represented by counsel. Id. § 4062.1(a) (“If an employee is not represented by an attorney, the employer shall not seek agreement with the employee on an agreed medical evaluator, nor shall an agreed medical evaluator prepare the formal medical evaluation on any issues in dispute.”).↥
Labor Code, § 4062.2(b).↥
Labor Code, § 4062.2(c), (d).↥
Labor Code, § 4062.2(c).↥
Labor Code, § 4062.3(e).↥
Labor Code, § 4062.3(i).↥
Labor Code, § 4062.3(j).↥
Labor Code, § 4062(a).↥
Labor Code, § 4062.1(e).↥
Labor Code, § 4062.2(e).↥
Labor Code, § 4064(a).↥
Labor Code, § 4064(d) (“no party is prohibited from obtaining any medical evaluation or consultation at the party’s own expense”).↥
Labor Code, § 4605 (“Nothing contained in this chapter shall limit the right of the employee to provide, at his or her own expense, a consulting physician or any attending physicians whom he or she desires. Any report prepared by consulting or attending physicians pursuant to this section shall not be the sole basis of an award of compensation. A qualified medical evaluator or authorized treating physician shall address any report procured pursuant to this section and shall indicate whether he or she agrees or disagrees with the findings or opinions stated in the report, and shall identify the bases for this opinion.”).↥
“Permanent disability payments are calculated by first expressing the degree of permanent disability as a percentage and then converting that percentage into an award based on a table.” Brodie v. Workers’ Comp. Appeals Bd., 57 Cal.Rptr.3d 644, 648, 40 Cal. 4th 1313, 156 P.3d 1100 (2007). The percentage “has no real world significance” other than to indicate that employees with higher percentages are more disabled than employees with lower percentages. Id. at 648 n.4.↥
Prior to January 1, 2013, the three factors discussed here were considered, as well as diminished future earning capacity. Contra Costa County v. Workers’ Comp. Appeals Bd., 240 Cal.App.4th 746, 750, 193 Cal.Rptr.3d 7 (2015). The “reform” that took effect in 2013 eliminated future earning capacity as a factor, but added a multiplier to the injured worker’s WPI when calculating a disability rating.↥
Labor Code, § 4660.1(a) (“In determining the percentages of permanent partial or permanent total disability, account shall be taken of the nature of the physical injury or disfigurement, the occupation of the injured employee, and his or her age at the time of injury.”)↥
Labor Code, § 4660.1(b) (“For purposes of this section, the ‘nature of the physical injury or disfigurement’ shall incorporate the descriptions and measurements of physical impairments and the corresponding percentages of impairments published in the American Medical Association (AMA) Guides to the Evaluation of Permanent Impairment (5th Edition) with the employee’s whole person impairment, as provided in the Guides, multiplied by an adjustment factor of 1.4.”).↥
Labor Code, § 4660.1(c)(1) (“Except as provided in paragraph (2), there shall be no increases in impairment ratings for sleep dysfunction, sexual dysfunction, or psychiatric disorder, or any combination thereof, arising out of a compensable physical injury. Nothing in this section shall limit the ability of an injured employee to obtain treatment for sleep dysfunction, sexual dysfunction, or psychiatric disorder, if any, that are a consequence of an industrial injury.”).↥
Cal. Code Reg., tit. 8, § 9805 (“The method for the determination of percentages of permanent disability is set forth in the Schedule for Rating Permanent Disabilities, which has been adopted by the Administrative Director effective January 1, 2005, and which is hereby incorporated by reference in its entirety as though it were set forth below.”). The occupational adjustment appears in sections 4 and 5 of the Schedule for Rating Permanent Disabilities, wrklyrs.com/2LgjeBt (Opens in new window).↥
National Kinney of Cal. v. Workers’ Comp. Appeals Bd., 113 Cal. App. 3d 203, 215, 169 Cal. Rptr. 801 (1980) (“It has been determined that where the duties of the employee embrace the duties of two forms of occupation, the rating should be for the occupation which carries the higher percentage.”).↥
The age adjustment appears in section 6 of the Schedule for Rating Permanent Disabilities, wrklyrs.com/2LgjeBt (Opens in new window).↥
Benson v. Workers’ Comp. Appeals Bd., 170 Cal.App.4th 1535, 1549, 89 Cal.Rptr.3d 166 (2009) (“the plain language of the new statutory scheme requires apportionment to each cause of a permanent disability, including each distinct industrial injury”).↥
See, e.g., Benson, 170 Cal.App.4th at 1541-42 (two separate awards, each based on a 31% disability, produced a total permanent disability award of $49,210, while combining the impairments for a 62% disability would have produced an award of $67,016.25).↥
Benson, 170 Cal.App.4th at 1560.↥
Labor Code, § 4662(a).↥
Labor Code, § 4662(b) (“In all other cases, permanent total disability shall be determined in accordance with the fact.”).↥
Brodie v. Workers’ Comp. Appeals Bd., 40 Cal. 4th 1313, 57 Cal.Rptr.3d 644, 648, 156 P.3d 1100 (2007) (“Employers must compensate injured workers only for that portion of their permanent disability attributable to a current industrial injury, not for that portion attributable to previous injuries or to nonindustrial factors.”)↥
Ashley v. Workers’ Comp. Appeals Bd., 37 Cal.App.4th 320, 326, 43 Cal. Rptr. 589 (1995) (“Apportionment is the process employed by the Board to segregate the residuals of an industrial injury from those attributable to other industrial injuries, or to nonindustrial factors, in order to fairly allocate the legal responsibility.”).↥
See Cal. Code Reg., tit. 8, § 9785.4 (“Form PR-4 ‘Primary Treating Physician’s Permanent and Stationary Report'”).↥
Hikida v. Workers’ Comp. Appeals Bd., 12 Cal.App.5th 1249, 1257-59 (2017).↥
Labor Code, § 4663(a) (“Apportionment of permanent disability shall be based on causation.”).↥
Labor Code, § 4664(a) (“The employer shall only be liable for the percentage of permanent disability directly caused by the injury arising out of and occurring in the course of employment.”).↥
See Brodie, 57 Cal.Rptr.3d at 652 (“section 4664, subdivision (a) confines an employer’s liability to the percentage of disability directly caused by the current industrial injury”)↥
Labor Code, § 4664(b) (“If the applicant has received a prior award of permanent disability, it shall be conclusively presumed that the prior permanent disability exists at the time of any subsequent industrial injury. This presumption is a presumption affecting the burden of proof.”)↥
Kopping v. Workers’ Comp. Appeals Bd., 142 Cal.App.4th 1099, 48 Cal.Rptr.3d 618, 630 (2006) (“section 4664(b) creates a conclusive presumption of the continued existence of a prior permanent disability when the claimant received an award of permanent disability benefits based on that disability, thereby precluding the claimant from proving medical rehabilitation from the prior disability”). While the second sentence of § 4664(b) is arguably in conflict with the first sentence, since a “presumption affecting the burden of proof” is typically a rebuttable presumption rather than a conclusive presumption, the court in Kopping concluded that the first sentence reflected the legislature’s unambiguous intent. Id. at 622-24.↥
Kopping, 48 Cal.Rptr.3d at 621. An overlap might involve successive injuries to the same or different parts of the body. Id. at 621 n.5.↥
Kopping, 48 Cal.Rptr.3d at 623.↥
Labor Code, § 4663(d) (“An employee who claims an industrial injury shall, upon request, disclose all previous permanent disabilities or physical impairments.”).↥
Labor Code, § 4663(c).↥
Labor Code, § 4464(c)(1).↥
Labor Code, § 4664(c)(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.”).↥
Cal. Code Reg., tit. 8, § 10156 (“A formal rating determination will be prepared by the Disability Evaluation Unit when requested by the Appeals Board or a Workers’ Compensation Judge on a form specified for that purpose by the Administrative Director.”).↥
Labor Code, § 4061(e) (“The unrepresented employee or the employer may submit the treating physician’s evaluation for the calculation of a permanent disability rating. Within 20 days of receipt of the comprehensive medical evaluation, the administrative director shall calculate the permanent disability rating according to Section 4660 or 4660.1, as applicable, and serve the rating on the employee and employer.”).↥
Cal. Code Reg., tit. 8, § 10159 (“Following the receipt of a comprehensive medical-legal evaluation from a Qualified Medical Evaluator that is eligible for rating under section 10160, the Disability Evaluation Unit shall issue a summary rating determination pursuant to Labor Code section 4061(e) within 20 days of either the date the time has passed for the filing of a request for factual correction under Labor Code section 4061(d)(1), or the date of receipt of a supplemental report submitted to the Disability Evaluation Unit in response to a request for factual correction under section 37 of title 8 of the California Code of Regulations, whichever is later.”).↥
Cal. Code Reg., tit. 8, § 10166(b) (“Consultative rating determinations may be requested for the purpose of determining the ratable significance of factors, reviewing proposed compromise and release agreements for adequacy, determining commuted values, resolving occupational questions or any other matters within the expertise of the disability evaluators. Consultative Rating Determinations will not be admissible in judicial proceedings.”)↥
Cal. Code Reg., tit. 8, § 10166(a) (“The Disability Evaluation Unit will prepare consultative rating determinations upon request of the appeals board, workers’ compensation administrative law judges, settlement conference referees, arbitrators, workers’ compensation judges pro tempore and information & assistance officers.”)↥
Cal. Code Reg., tit. 8, § 10166(c) (“The Disability Evaluation Unit may also prepare consultative rating determinations upon receipt of reasonable requests from employers, injured workers or their respective representatives. A request is not considered reasonable where an insurance carrier or self-insurer seeks a consultative rating determination for the purpose of terminating its liability or for negotiating a compromise and release settlement where the injured worker has no representative. Consultative rating determinations shall not to be used as a substitute for summary rating determinations.”)↥
Cal. Code Reg., tit. 8, § 10166(e) (“No consultative rating determination will be provided on cases in which an application for adjudication of claim has been filed with the appeals board without prior written authorization of the Appeals Board, a workers’ compensation administrative law judge, settlement conference referee, arbitrator, workers’ compensation judge pro tempore, or information & assistance officer. In cases where an application has been filed, the disability evaluator may require that any request for consultative rating determination be accompanied by the appeals board file.”).↥
Labor Code, § 4658(e).↥
Labor Code, § 4453(b)(9).↥
Labor Code, § 4660.1(d) (“The Schedule for Rating Permanent Disabilities pursuant to the American Medical Association (AMA) Guides to the Evaluation of Permanent Impairment (5th Edition) and the schedule of age and occupational modifiers . . . shall be prima facie evidence of the percentage of permanent disability to be attributed to each injury covered by the schedule.”).↥
Contra Costa County v. Workers’ Comp. Appeals Bd., 240 Cal.App.4th 746, 751, 193 Cal.Rptr.3d 7 (2015); Ogilvie v. Workers’ Comp. Appeals Bd., 197 Cal.App.4th 1262, 1273-77, 129 Cal.Rptr.3d 704 (2011).↥
Labor Code, § 4659(a) (“If the permanent disability is at least 70 percent, but less than 100 percent, 1.5 percent of the average weekly earnings for each 1 percent of disability in excess of 60 percent is to be paid during the remainder of life, after payment for the maximum number of weeks specified in Section 4658 has been made. . . . For injuries occurring on or after January 1, 2006, average weekly wages shall not be taken at more than five hundred fifteen dollars and thirty-eight cents ($515.38)”). The “maximum number of weeks specified in Section 4658” is 16 weeks for each percentage of disability when the permanent disability is at least 70%. Id. § 4658(e).↥
Labor Code, § 9659(b) (“If the permanent disability is total, the indemnity based upon the average weekly earnings determined under Section 4453 shall be paid during the remainder of life.”).↥
Labor Code, § 3208.3(a) (“A psychiatric injury shall be compensable if it is a mental disorder which causes disability or need for medical treatment . . . .”).↥
Am. Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders (5th ed. 2013).↥
Labor Code, § 4660.1(c)(1) (“Except as provided in paragraph (2), there shall be no increases in impairment ratings for sleep dysfunction, sexual dysfunction, or psychiatric disorder, or any combination thereof, arising out of a compensable physical injury. Nothing in this section shall limit the ability of an injured employee to obtain treatment for sleep dysfunction, sexual dysfunction, or psychiatric disorder, if any, that are a consequence of an industrial injury.”).↥
Decision after Reconsideration, Madsen v. Michael J. Calveto Ranches, No. ADJ9914916 (Workers’ Comp. Appeals. Bd. Feb. 22, 2017).↥
Labor Code, § 3208.3(d) (“Notwithstanding any other provision of this division, no compensation shall be paid pursuant to this division for a psychiatric injury related to a claim against an employer unless the employee has been employed by that employer for at least six months. The six months of employment need not be continuous. This subdivision shall not apply if the psychiatric injury is caused by a sudden and extraordinary employment condition.”).↥
Matea v. Workers’ Comp. Appeals Bd., 144 Cal.App.4th 1435, 51 Cal.Rptr.3d 314, 325 (2006) (a rack of lumber falling on an employee’s leg is a sudden and unexpected employment condition).↥
See, e.g., State Comp. Ins. Fund v. Workers’ Comp. Appeals Bd., 204 Cal.App.4th 766, 769, 139 Cal.Rptr.3d 215 (2012) (employee’s fall “was an occupational hazard of picking avocados while standing on a ladder, and thus was not uncommon, unusual or unexpected”); Travelers Cas. & Surety Co. v. Workers’ Comp. Appeals Bd., 246 Cal.App.4th 1101, 1108-09201 Cal.Rptr.3d 312 (2016) (slip and fall on employer’s wet sidewalk did not result from a sudden and unexpected condition even if the employee did not expect the sidewalk to be slippery).↥
Workplace stress, in itself, is not typically regarded as a mental disorder, but it can contribute to a number of recognized mental disorders, including Anxiety Disorders, Panic Disorders, Depressive Disorders, and Post-Traumatic Stress Disorders.↥
Labor Code, § 3208.3(b)(1).↥
Pacific Gas & Electric Co. v. Workers’ Comp. Appeals Bd., 114 Cal.App.4th 1174, 1180, 8 Cal.Rptr.3d 46 (2004) (“This language has been interpreted to mean that benefits under section 3208.3, subdivision (b)(1) may be awarded only when industrial factors account for more than 50 percent of a psychiatric disability.”).↥
Labor Code, § 3208.3(b)(2).↥
Labor Code, § 3208.3(b)(3).↥
Decision after Reconsideration, Madsen v. Michael J. Calveto Ranches, No. ADJ9914916 (Workers’ Comp. Appeals. Bd. Feb. 22, 2017).↥
Id.↥
Labor Code, § 3208.3(h).↥
Northrop Grumman Corp. v. Workers’ Comp. Appeals Bd., 127 Cal. Rptr. 2d 285, 295, 103 Cal.App.4th 1021 (2002).↥
San Francisco Unified Sch. Dist. v. Workers’ Comp. Appeals Bd., 190 Cal.App.4th 1, 10, 117 Cal.Rptr.3d 824 (2010) (where psychiatric injury was caused 15% by factors unrelated to work, 51% by work activities, and 34% by personnel actions, the personnel actions were not a substantial cause of the psychiatric injury; factors unrelated to work could not be excluded when computing percentages of causal events).↥
See Cal. Code Reg., tit. 8, § 9805 (“The method for the determination of percentages of permanent disability is set forth in the Schedule for Rating Permanent Disabilities, which has been adopted by the Administrative Director effective January 1, 2005, and which is hereby incorporated by reference in its entirety as though it were set forth below.”); Division of Workers’ Compensation, Schedule for Rating Permanent Disabilities 1-12 to 1-16 (2005), wrklyrs.com/2JsUG6j (Opens in new window).↥