Calif. Workers' Comp.; What is the status of LC4662; is there an appellate or en bane decision?

Asked 7 months ago - Anaheim, CA

2011 Cal. Wrk. Comp

The Board indicated that Labor Code Sections 4662 and 4659(b) establish separate statutory provisions may apply in cases of permanent total disability. They also noted that Section 4662 was unchanged by SB 899. In part it provided "permanent and total disability shall be determined in accordance with the fact". The Board also acknowledged this language had not been definitively interpreted in a binding appellate or en bane decision. However, they indicated or characterized it as appearing to authorize a finding of permanent total disability based on an evaluation of the evidentiary record of an individual case.

Additional information

The Board also discussed the rather troublesome provision of Labor Code Section 4662 related to situations and circumstances in which permanent and total disability is presumptively found. Except for these presumptive cases, "in all other cases, permanent and total disability shall be determined in accordance with the fact". There is a very refined and elaborate discussion of the interplay between Labor Code Sections 4658(d), 4659(b), and Labor Code Sections 4660, and 4662. The Board noted that Labor Code Section 4658(d) covers disabilities from 0%-99.75%.
However, computation of any benefit owed when there is a permanent total disability is
governed by Labor Code Section 4659(b). Because there are separate sections for computing disability payments in the cases of partial and total permanent disability, which lends support to the view there is a legally significant difference between disabilities that are a percentage of total disability and those that are total.

Attorney answers (5)

  1. Darin Laine Powell

    Contributor Level 5

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    Answered . In my review of these particular sections of the Labor Code, I believe that Section 4662 and Section 4659 (b) are obviously related. Section 4662 provides for a finding of total permanent disability and Section 4659 (b) provides the disability rate for a total permanent disability case.

    Similar to the statements made by Mr. Borah above, I too believe that Section 4662 is still good law. Your statements seem to be taken from a case law review; however, I could find no citation referenced. In looking at the California Compensation Cases indices at the end of each booklet, you can search for Section 4662 case law. For example, in 2013, Section 4662 was discussed in various cases, including 78 CCC 869; 78 CCC 825; and 78 CCC 518. There are other cases which include a discussion of Section 4662; however, none of these cases go into detail as to the impact Senate Bill 899 had on 4662.

    I would try a FindLaw search for Section 4662 to see if there are any published appellate decisions. Best of luck to you.

    THIS ANSWER WAS WRITTEN MADE AVAILABLE BY MITCHELL & POWELL A P.L.C. THE LAWYER OR LAW FIRM PUBLISHED THIS ANSWER... more
  2. Brett A. Borah

    Contributor Level 20

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    Answered . I'm not sure I understand your question but if you're asking if LC 4662 remains good law in California, the answer is "Yes."

  3. Michael Ian Rott

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    Answered . In response to your question, there is a wonderful two-part article featured through the LexisNexis Legal Newsroom regarding Workers' Compensation Law. I have added the link so you can review this article. As of this date, California Labor Code Section 4662 is still "good" law. Until a binding appellate or en banc decision comes down interpreting this statute in a different way, most Judges will continue handing down the same or similar decisions.

    Bear in mind however, certain facts can sometimes arise which influence Courts to change their thinking. If you have a specific fact pattern, please advise so that my colleagues and I can offer additional advice.

    Hope this helps,

    Michael Ian Rott, Esq.
    Managing Partner

    HIDEN, ROTT & OERTLE, LLP

    Please be advised that the advice provided does not create any attorney/client relationship; that due to the... more
  4. Bonnie Jean Binder-Wilson

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    Answered . Judges are providing disability based upon (a)-(d) of 4662. They are also considering the latter part of the code section and find permanent and total disability if there is medical and vocational evidence supporting that finding.

  5. Gerald Franklin Batchelder

    Contributor Level 13

    Answered . First of all, I agree with what my colleagues have already said. I just want to add a possible qualifier.

    For injuries on or before 12/31/2012, I don't think there is much dispute that proving a total loss of earning capacity will result in a permanent total award. However, for injuries on or after 1/1/2013, some doubt exists, as references in the Labor Code to diminished earning capacity have been deleted. There is no longer a statutory connection between permanent disability and loss of earning capacity. The better view probably still supports the idea that a total loss of earning capacity justifies a finding of total permanent disability "in accordance with the fact," but this is certain to be the subject of appellate review.

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