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PERMANENT TOTAL DISABILITY (PTD)

Labor Code §4662 provides for permanent total disability (PTD):

 Any of the following permanent disabilities shall be conclusively presumed to be total in character:
   (a) Loss of both eyes or the sight thereof.
   (b) Loss of both hands or the use thereof.
   (c) An injury resulting in a practically total paralysis.
   (d) An injury to the brain resulting in incurable mental incapacity or insanity.
   In all other cases, permanent total disability shall be determined in accordance with the fact.

The worker does not need to be completely unable to work, and for (a) through (d), if caused by a work injury, and the person can still work, it is still 100%. It is the last sentence that has given rise to much litigation. If a worker is unemployable due to the injury (cannot work on a regular basis, cannot reliably show up for work, etc.), and the vocational expert confirms this based on substantial medical evidence, then a finding of PTD is appropriate. In cases where the rating following the schedule is less than but close to 100%, the combination of medical and vocational evidence may make Labor Code §4662 applicable.

The leading Supreme Court case of LeBoeuf v. WCAB (1983) 34 Cal.3d 234 continues to provide the basis for attacking permanent disability ratings that do not accurately reflect the injured worker's ability to work competitively. Injuries pre-1/1/13 would continue to be determined under Ogilvie v. WCAB. Injuries on or after 1/1/13 come under new Labor Code §4660.1, which eliminated diminished future earning capacity (DFEC) and the FEC modifier. For injuries that leave the worker unemployable, where the case is being proved up under Labor Code §4662, presumably LeBoeuf would still be used to show permanent total disability in cases that do not fall under (a) through (d).

Rate of payment: Total permanent disability is paid at the temporary disability rate in effect on the date of injury: "(a) In computing average annual earnings for the purposes of temporary disability indemnity and permanent total disability indemnity only, the average weekly earnings shall be taken at...." Labor Code §4453. If rates subsequently rise, under Labor Code §4453.5 this does not change the amount payable except for the COLA under Labor Code §4659(b).

In Baker v. WCAB (2011) 52 Cal. 4th 434, the Supreme Court noted that "Total permanent disability benefits are weekly payments made for life to injured workers who are 100 percent disabled. (§ 4659, subd. (b).) They commence on the date the injured worker reaches a medically stable condition (permanent and stationary) because, at that point, the full nature and extent of the worker's permanent disability, if any, can be determined." The Court concluded that "the Legislature intended that COLA's be calculated and applied prospectively commencing on the January 1 following the date on which the injured worker first becomes entitled to receive, and actually begins receiving, such benefit payments, i.e., the permanent and stationary date in the case of total permanent disability benefits, and the date on which partial permanent disability benefits become exhausted in the case of life pension payments." See COLA

SB 863 added Labor Code §4660.1, which states: "(g) Nothing in this section shall preclude a finding of permanent total disability in accordance with Section 4662."

Label Item Links Comments
Labor Code There is a statutory conclusive presumption that some injuries are total. In other cases, total disability can be "determined in accordance with the fact."

Paid at temporary disability rate

Subject to COLA
LC §4662



LC §4453


LC §4659(b)
 
Regulations/Rules  
Cases LeBoeuf v. W.C.A.B. (1983) 34 Cal. 3d 234: this is still the leading case for proving PTD
LeBoeuf v. W.C.A.B.  
Websites    
Practice Tips Both medical evidence and vocational evidence must be in writing and be substantial evidence in order to support a finding of PTD. The bigger the numbers (and money) get, the more important it is to nail down every fact you are relying on. If you are relying on a deposition transcript, make sure it definitely says what you need it to say. It is a good idea to follow up with a written report reiterating the basis for the PTD, with the "how" and "why" explained with reasonable medical probability.    
Articles Apportionment, Conclusive Presumptions and Labor Code Section 4662 (Part 1 of 2)

Apportionment, Conclusive Presumptions and Labor Code Section 4662 (Part 2 of 2)

Part 1


Part 2
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