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Applicant Fails to Prove Permanent Total Disability Under Labor Code Section 4662

BURR vs. THE BEST DEMOLITION AND RECYCLING COMPANY, INC.
(2018) 2018 Cal. Wrk. Comp. P.D. LEXIS 143

Applicant began working for defendant in February 2008.  After four months on the job, applicant was hospitalized on a non-industrial basis for several medical issues, including low back surgery to address a kyphotic deformity at T12-L3. Applicant was able to return to his usual and customary job duties by September 2008.

On December 1, 2008, he fell at work.  He did not initially report an injury.  However, two months later, he returned to his surgeon complaining of back pain.  Testing showed a progression of the low back deformities and applicant underwent additional surgery.

After becoming represented by counsel, applicant filed a worker’s compensation claim which was denied.  The AOE/COE issue was tried and, on June 11, 2013, there was a finding that applicant sustained a compensable injury.

Applicant continued to treat for his low back injury, including with additional surgery.  He also claimed to have developed numerous additional injuries as a compensable consequence of the back injury, including injury to the psyche, gastrointestinal system, urologic system, aggravation of diabetes, and hypertension.

Following one of the surgeries, the applicant developed an abscess and an infection.  He developed weakness in the lower extremities and was required to use a wheelchair.

Following a Trial to address permanent disability, the applicant was awarded 88% permanent disability after apportionment to non-industrial factors.

Applicant filed a Petition for Reconsideration arguing that he should be considered permanently, totally disabled under Labor Code Section 4662 (a)(3) because his injuries resulted in “practically total paralysis”.  He also argued that vocational evidence showed that he would be unable to return to employment and, thus, was permanently, totally disabled “according to the fact” per Labor Code Section 4662 (b).  Finally, citing Hikida, applicant argued that apportionment was not appropriate because his impairment was the result of treatment for his industrial injury.

The WCAB denied the Petition and adopted and incorporated the Workers Compensation Judge’s Report and Recommendation as its opinion.

The Workers Compensation Judge noted that “practically total paralysis” under Labor Code Section 4662 (a)(3) requires a finding that the applicant is practically a quadriplegic.  Here, the applicant’s lower extremities were affected, but he still had functional use of the upper extremities.  Therefore, he did not meet the requirements for a finding of “practically total paralysis”.

Addressing the vocational argument, the Workers Compensation Judge noted that applicant’s vocational expert’s report contained conclusory language that “applicant meets the definition of 100% conclusively disabled without regard to apportionment issues due to his paraplegia.”  Also, “even taking apportionment into consideration, applicant would still not be able to benefit from vocational rehabilitation and return to employment.”  However, the vocational expert did not provide any explanation of how she arrived at these conclusions.  Therefore, the vocational opinion was not substantial evidence.

Finally, the Workers Compensation Judge rejected the Hikida argument because in this case, unlike in Hikida, the applicant’s symptoms were part of a long pattern of progression of the low back injury.  These were not new symptoms (such as the complex regional pain syndrome in Hikida) that resulted from the surgery.  There was no medical evidence that the worsening of the applicant’s symptoms was due solely to the last spinal  surgery.

Written by Edward L. Hummer, Associate Attorney in our Santa Rosa office, June 2018.