Permanent disability

AuthorDavid L. Pollak/Roger A. Tolman, Jr./Monika R. Reyes
Pages397-486
PERMANENT
DISABILITY
8-1
CHAPTER 8
PERMANENT DISABILITY
I. PERMANENT DISABILITY GENERALLY
§8:01 Def‌inition of Permanent Disability
§8:02 Adjudication v. Rulemaking in Permanent Disability
§8:03 The Rating Manuals
§8:04 The Four Manuals of the Two Systems of Permanent Disability
II. PD UNDER THE OLD RATING SYSTEM
§8:10 Def‌initions
§8:11 Disability Percentage
§8:12 Rating Dichotomy: Physical Impairment vs. Wage Loss; Prof. Larson’s Discussion
§8:13 The California Solution — Hutchinson
§8:14 Return to Work No Bar; Ability to Work Does Not Preclude 100% Permanent Disability Finding
§8:15 Further Deterioration No Bar
§8:16 Time of Determination
§8:17 Theory of Self-Rehabilitation
§8:18 Objective Disability Factors
§8:19 The Guidelines
§8:20 Subjective Disability Factors
§8:21 Effect of Pain Levels on Work Preclusions
§8:22 Frequency of Occurrence of Pain
§8:23 Work Capacity Guidelines
§8:24 Psychiatric Protocols — IMC Rule 43
§8:25 Lower Extremity Work Capacity Guidelines
§8:26 Upper Extremity Work Capacity Guidelines
§8:27 Work Capacity Guidelines for Skin Sensitivity
III. PD UNDER THE POST2005 RATING SYSTEM
§8:40 Effective Date
§8:41 The AMA Rating System
§8:42 Rebutting the AMA Guidelines
§8:43 Analysis in Light of Almaraz/Guzman, Foote, and Ogilvie
§8:44 No 15% Increase or Decrease for Return to Work for Injuries on or After 1/1/13
§8:45 $120 Million Return to Work Fund
§8:46 No PD for Compensable Consequence Injuries to Psyche, Sleep Dysfunction,
and Sexual Dysfunction for Injuries After 1/1/13
§8:47 Reservation of Jurisdiction
§8:48 The New Rating Formula
§8:49 Body Part Injured (Impairment Number)
§8:50 Impairment Standard
§8:51 Diminished Future Earning Capacity (FEC)
§8:52 Occupational Adjustment
PERMANENT
DISABILITY
California Workers’ Compensation 8-2
§8:53 Occupations List
§8:54 Multiple Occupations
§8:55 Compare Integrated Duties
§8:56 Adjustment for Age
§8:57 COLA Increases for Life Pension and Permanent Total Disability
IV. MULTIPLE DISABILITIES TABLE AND COMBINED VALUE CHART
§8:70 MDT & CVC Used to Prevent Compounding Exceeding 100%
§8:71 Application to Single Injury or Period of Employment
§8:72 Mechanics of MDT and CVC
§8:73 Guide Only — MDT (or CVC) Is Sometimes not Required
§8:74 Compare Successive Injuries with Same Disability
§8:75 Overlapping Disabilities
V. TOTAL PERMANENT DISABILITY
§8:80 Five Ways of Establishing 100% Disability
§8:81 The Combined Values Chart or Multiple Disabilities Table
§8:82 Permanent Total Disability Using the Conclusive Presumption §4662 & Fitzpatrick
§8:83 Proving Total Permanent Disability Using Vocational Evidence under LeBoeuf
§8:84 Proving Total Permanent Disability Using Addition instead of CVC (Kite)
§8:85 Proving Total Permanent Disability Using Medical Evidence of PTD
VI. TRIAL, PROOF & SUFFICIENCY OF EVIDENCE OF PERMANENT DISABILITY
§8:90 Blackledge: Role of Physician, DEU, and WCJ in Determining Rating
§8:91 Employee Testimony and Other Evidence on Issue of Pain and Extent of Disability
§8:92 Lay Testimony Suff‌icient in Other Areas
§8:93 Range of Evidence Rule
§8:94 Independent or Agreed Medical Evaluation
§8:95 Omitted Factors
§8:96 Overlapping, Duplicative, or “Swallowed Up”/ Subsumed Factors Single Injury — The Hegglin Case
§8:97 Nominal Permanent Disability
VII. RATINGS FROM THE DISABILITY EVALUATION UNIT (DEU)
§8:110 DEU in General
§8:111 Types of Ratings
§8:112 Formal Rating Determinations
§8:113 Summary Rating Determinations
§8:114 Consultative Rating Determinations
§8:115 “Informal Ratings”
§8:116 Formal Ratings
§8:117 Right to Cross-Examine and Rebut
§8:118 Limitations on Cross-Examination
§8:119 Challenging the Judgment of the DEU Rater
§8:120 Rating Instructions
VIII. APPORTIONMENT POSTSB899 (2004)
§8:130 Apportionment under LC §§4663 and 4664
§8:131 Effective Date
§8:132 LC §4663: Apportionment to Causation (Escobedo)
§8:133 LC §4663 Apportionment Does Not Apply to Safety Off‌icer Presumption Cases
§8:134 Apportionment Analysis in Light of Escobedo
§8:135 Apportionment to Cause of Disability, Not Risk Factors for Cause of Injury and Other
Impermissible Apportionment
§8:136 Substantial Evidence
§8:137 LC §4663 Apportionment When Pre-Existing Pathology Surgically Removed
§8:138 Medical Rehabilitation From Prior Injury That Did Not Result in a Prior Award of Permanent
Disability Still Viable
PERMANENT
DISABILITY
8-3 Permanent Disability
§8:139 Multiple Injuries to the Same Body Part — Benson Overturns Wilkinson
§8:140 Apportionment Tips
§8:141 Apportionment to Permanent and Total Disability and LeBoeuf
§8:142 No Apportionment to Conclusively Presumed Total Disability
§8:143 No Apportionment to Consequence of Treatment
§8:144 LC §4664: Apportionment to Prior Awards
§8:145 LC §4664: Apportionment to Prior Awards: Lifetime Cap of 100%
IX. SUBSEQUENT INJURIES BENEFITS TRUST FUND (SIBTF)
§8:160 Introduction
§8:161 Timing to File Petition for SIBTF Benef‌its
§8:162 Purpose: Hire the Handicapped
§8:163 Requirements: Actual Prior Disability
§8:164 Requirements: Combination of Disability of Prior and Subsequent Injury Must Be Greater Than
the Subsequent Injury Alone
§8:165 Requirements: Subsequent Industrial Injury 35% or5% Corresponding Member, Considered Alone
§8:166 Manner of Awarding Fund Benef‌its — Moran
§8:167 No Commutation
§8:168 DWC Staff Defense — Settlements
§8:169 Credit
§8:170 Pleading
§8:171 Not Applicable to Non-Disabling Prior Injuries
§8:172 No Payment of SIBTF Funds if Applicant Dies and There Is No Formal Award of SIBTF Benef‌its
X. PERMANENT DISABILITY PAYMENTS AND CREDIT RIGHTS
§8:180 How Permanent Disability Is Paid
§8:181 Commencement of Liabilit y for Payment of Permanent Disability Indemnity for Injuries After 1/1/13
§8:182 Commencement of Liability for Payment of Permanent Disability Indemnity for Injuries Before 1/1/13
§8:183 Commencement of Liability for Payment of Permanent Total Disability upon a Petition for New
and Further Disability
§8:184 Credit for Overpayment in Different Case
§8:185 Overpayment of TD, Credit Rights Against PD
§8:186 Computations Involving Pre-Existing Disability
§8:187 Permanent Total Disability
§8:188 Earning Capacity and Compensation Rate
§8:189 Permanent Disability Indemnity for Disaster Service Workers
§8:190 New and Further Disability
XI. JOB DISPLACEMENT SERVICES AND BENEFITS
A. Benef‌its Available to an Injured Worker
1. The Demise of Vocational Rehabilitation Benef‌its
§8:200 Evolution of California Vocational Rehabilitation
§8:201 Rehabilitation System Repealed in 2003
§8:202 Board Jurisdiction
2. Supplemental Job Displacement Benef‌its
§8:210 Supplemental Job Displacement Benef‌its
(Injuries Occurring Between January 1, 2004 to December 31, 2012)
§8:211 Job Displacement Benef‌it Rules (Injuries Occurring Between January 1, 2004 to December 31, 2012)
§8:212 Modif‌ied or Alternate Work in Lieu of Supplemental Benef‌it
§8:213 Supplemental Job Displacement Benef‌it (Injuries Occurring on or After January 1, 2013)
§8:214 Job Displacement Benef‌it Rules (Injuries Occurring on or After January 1, 2013)
§8:215 Termination of Liability for Voucher
§8:216 Dispute Resolution Process
3. Return to Work Supplemental Program
§8:230 Introduction
§8:231 Application for the Return to Work Program

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT