Permanent Total Disability

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Jul
18
2011
Almaraz / Guzman, Conference, Permanent Disability Rating Schedule, Permanent Partial Disability, Permanent Total Disability, Workers Compensation Resources

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Boot Camp
Boot Camp

The Workers’ Compensation Specialization Boot Camp on July 16 and 17 in Los Angeles was a packed house. 1  If you missed out, there’s another chance to attend on July 30 and 31 in Concord.

If you did attend the seminar in Los Angeles, I promised you a copy of all of the cases cited during the presentation on Permanent Disability.  Here’s the basic outline along with a download link for every case I cited:

  1. Permanent Disability
    1. Cal. Labor Code. Section 4660
    2. LeBoeuf v. Workers’ Comp. Appeals Bd.
    3. Costa v. Hardy
    4. Almaraz/Guzman “II”
    5. Guzman “III”
    6. Ogilvie “II”
    7. (Updated 7/29/2011!) [Download not found]
      1. Read a summary of Ogilvie III here!
    8. Argonaut Ins. v. Ind. Acc. Comm (Montana)
  2. Psychiatric Injuries
    1. Cal. Labor Code Section 3208.3
    2. Dept. of Corrections v. Workers’ Comp. Appeals Bd. (Garcia)
  3. Apportionment
    1. Cal. Labor Code Section 4662
    2. Cal. Labor Code Section 4663
    3. Cal. Labor Code Section 4664
    4. Cal. Labor Code Section 3213 – 3213.2
    5. Escobedo v. Marshall’s
    6. Benson v. Workers’ Comp. Appeals Bd.
    7. Brodie / Welcher
  4. Rating
    1. Blackledge v. Bank of America
    2. Policy & Procedures Manual of the WCAB
  5. (Updated 7/18/2011!) Flash Card Take Away
    1. Please register for a free account with PDRater.com to download this file.
    2. Seriously – free as in free.  There’s no charge, no credit card anything.

  1. Permanent Disability

    1. Cal Labor Code § 4660

    1. Description of disability

    1. 1997 Permanent Disability Rating Schedule

      1. Rebutting the 1997 Permanent Disability Rating Schedule

      1. LeBeouf

    1. 2005 Permanent Disability Rating Schedule

      1. Permanent Impairment

      1. Rebutting the 2005 Permanent Disability Rating Schedule

      1. Costa/Harding

      1. Almaraz/Guzman II

      1. Guzman “III”

      1. Ogilvie II

  1. Photo courtesy of jumpinjimmyjava [↩]
Dec
18
2009
Average Weekly Wage, Case Law, COLA, Life Pension, Permanent Total Disability, SAWW, Temporary Total Disability, Workers Compensation Resources

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Double dip done right
Double dip done right

Some commentators have suggested that the recent Duncan v. WCAB (X.S.) case creates a “double dip” for injured workers entitled to permanent total disability benefits. 1  While I would take issue with much of that commentary, I would agree that permanent total disability benefits are affected by changes in the state average weekly wage twice under Duncan v. WCAB (X.S.).  Of the four benefits in California workers’ compensation system that are affected by changes in the SAWW, only permanent total disability benefits are affected twice.

It took the patient guidance of a very smart friend to help me to understand how this works:

  • When determining the proper starting rate for a permanent total disability case, you must first turn to Cal. Labor Code § 4453(a)(10).  This statute dictates that the limits (as in the statutory minimum and statutory maximum limits) are to be increased by the increase in the state average weekly wage (or SAWW).
  • However, according to Cal. Labor Code § 4659(c) as interpreted by Duncan v. WCAB (X.S.), the benefit rates themselves are then increased by the increase in the state average weekly wage (or SAWW).

Is it “double dipping” to have both the upper/lower limits and benefit rates increased by the SAWW?

Perhaps, but that’s what the two statutes say and what the Court of Appeals has decided.

  1. Photo courtey of alex012 [↩]
Dec
17
2009
Average Weekly Wage, Case Law, COLA, Death Benefits, Life Pension, Permanent Total Disability, SAWW, Temporary Total Disability, Workers Compensation Resources

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Getting a handle on the SAWW
Getting a handle on the SAWW

Four benefits in California workers’ compensation are affected by changes in the state average weekly wage (or SAWW).1

  1. Temporary total disability benefits
    • The maximum and minimum benefit rates can be affected by the SAWW.
    • “Commencing on January 1, 2007, and each January 1 thereafter, the limits specified in this paragraph shall be increased by an amount equal to the percentage increase in the state average weekly wage as compared to the prior year.”  Cal. Labor Code § 4453(a)(10).
  2. Life pension benefits
    • The statutory life pension rates are now increased by the SAWW as directed by the recent Duncan v. WCAB (X.S.) case.
    • “For injuries occurring on or after January 1, 2003, an employee who becomes entitled to receive a life pension or total permanent disability indemnity as set forth in subdivisions (a) and (b) shall have that payment increased annually commencing on January 1, 2004, and each January 1 thereafter, by an amount equal to the percentage increase in the “state average weekly wage” as compared to the prior year.”  Cal. Labor Code § 4659(c).
  3. Permanent total disability benefits
    • First, the minimum and maximum limits for permanent total disability benefits are increased, then the benefit rates themselves are increased.
    • “Commencing on January 1, 2007, and each January 1 thereafter, the limits specified in this paragraph shall be increased by an amount equal to the percentage increase in the state average weekly wage as compared to the prior year.”  Cal. Labor Code § 4453(a)(10).
    • “For injuries occurring on or after January 1, 2003, an employee who becomes entitled to receive a life pension or total permanent disability indemnity as set forth in subdivisions (a) and (b) shall have that payment increased annually commencing on January 1, 2004, and each January 1 thereafter, by an amount equal to the percentage increase in the “state average weekly wage” as compared to the prior year.”  Cal. Labor Code § 4659(c).
  4. Death benefits
    • “A death benefit in all cases shall be paid in installments in the same manner and amounts as temporary total disability indemnity would have to be made to the employee, unless the appeals board otherwise orders.” Cal. Labor Code § 4702(b).

Did I just describe two increases to the permanent total disability benefit rate?  Huh, so I did.

Tune in tomorrow for more on Duncan v. WCAB, COLA’s, and SAWW increases!

  1. Photo courtesy of Sean Venn [↩]
Dec
16
2009
Case Law, COLA, Life Pension, Permanent Total Disability, SAWW, Workers Compensation Resources

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Putting some teeth in the SAWW
Putting some teeth in the SAWW

We’ve all seen charts with the State Average Weekly Wage (“SAWW”) increases printed on them.1 But, how useful are these when you’re dealing with an opposing counsel who won’t accept your chart or calculations based on that chart?

It sure would be nice to have all the SAWW information from the Division of Workers’ Compensation all in once place.  Well, it just so happens I’ve already done this for you.

Here is a copy of every DWC Newsline from 2003 through 2009 with information on every SAWW increase from 2004 through 2010, all ready to go in one handy-dandy PDF.

[Download not found]

Share and enjoy!

More on Duncan v. WCAB, COLA’s, and SAWW increases tomorrow!

(Don’t forget to download a copy of Duncan v. WCAB here!)

  1. Photo courtesy of Aeioux [↩]
Dec
15
2009
Case Law, COLA, Life Pension, Permanent Total Disability, SAWW, Workers Compensation Resources

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Mini version of Duncan v. WCAB
Mini version of Duncan v. WCAB

In the spirit of my recent post summing up Ogilvie II and Almaraz/Guzman II in just three sentences each, I bring you a summary of the recent Duncan v. WCAB decision in just one sentence:1

The COLAs found in section 4659, subdivision (c) should be applied to life pensions or total permanent disability compensation as from January 1, 2004.2

Yes, that’s really it.  The Duncan decision consists mostly of background and discussion.  The actual decision is basically that one line above.

Come back tomorrow for more information about SAWW increases, COLA calculations, and more!

(Don’t forget to download a copy of Duncan v. WCAB here!)

  1. Photo courtesy of MarkAllanson [↩]
  2. Duncan v. WCAB, page 18. [↩]
Dec
6
2009
Calculators, Case Law, COLA, Commutation, Death Benefits, Permanent Total Disability, SAWW, Workers Compensation Resources

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It looks like someone took a SAWW to that COLA
It looks like someone took a SAWW to that COLA!!!

You’re probably just here to download the latest workers’ compensation case about the Cost of Living Adjustment and State Average Weekly Wage increases. 12 I’m not going to hold you in suspense – here’s the download link:

[Download not found]

Obviously, you need to read the entire decision for yourself.  Here’s my oversimplification of the case:

Whenever the injured worker is due life pension payments for injuries on or after 1/1/2003, you calculate those benefits, whenever they are due, by increasing them according to the yearly increases in the state average weekly wage starting on 1/1/2004.

If some of this seems familiar, its because this is the same case as XYZZXSJO2 which came out back in February 2009.   I had suggested back in February that the effect of the COLA increases on life pension payments today would be to increase them some 44% or so.

Still having trouble understanding the impact of this case?  Well, you could try my XYZZXSJO2 calculator to tell you what the life pension rate should be during a given year.  (Remember, this just tells you the rate – it is not a commutation calculator.  These are still in the works).

What are your thoughts on Duncan v. WCAB?

http://www.flickr.com/photos/79874304@N00/386160373/
  1. Photo courtesy of Sister72 [↩]
  2. I refuse to apologize for that pun. [↩]
Mar
28
2009
1997 PDRS, 2005 PDRS, Almaraz / Guzman, Average Weekly Wage, Business, Calculators, COLA, Combined Values Chart, EAMS, Free, Life Pension, Ogilvie, PDRater, Permanent Disability Rating Schedule, Permanent Partial Disability, Permanent Total Disability, PHP, SAWW, Subscription Features, Technobabble, Temporary Partial Disability, Temporary Total Disability, Wage Loss, Website Updates, Wordpress, Workers Compensation Resources

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Getting an upgrade!
Getting an upgrade!

Late last week a user asked for a new feature.1  He wanted to be able to perform the Ogilvie DFEC rebuttal calculation and have the results e-mailed to him.2 Well, I built it!3

To e-mail yourself a calculation, perform the calculation as normal.  When the website returns your calculation, it will say “E-mail Me!”  Just click that button and it will send an e-mail to the address you used to register for this website.

However, here’s the cool part:  I’ve installed this new e-mail system into every calculator! 4 No more having to copy and paste!  Just click one button and your calculation will show up in your inbox!5

Although I intend this to be a paid-subscription-only feature, I am going to leave it open for all users while I get some feedback.  So, what do you think?  Please leave a comment or shoot me an e-mail!

  1. Thanks Dennis! [↩]
  2. Photo courtesy of Vernhart [↩]
  3. Why, what did you do with your Saturday morning? [↩]
  4. I haven’t installed it in some of the EAMS lookup functions [↩]
  5. If you filled in the boxes for Applicant, WCAB #, and File #, it will include this information in your e-mail as well.  This is only for your convenience and not a requirement. [↩]
Feb
25
2009
Calculators, Case Law, COLA, Death Benefits, Life Pension, PDRater, Permanent Total Disability, SAWW, Website Updates, Workers Compensation Resources

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XYZZXSJO2 - The motion picture!
XYZZXSJO2 - The motion picture!

Last week while Steve was at the Sacramento WCAB he heard about a recent case that held the COLA / SAWW adjustments and increases are calculated based upon the first January 1 following the date of injury. 12

This case involving SIF (the subsequent injuries fund) is from the San Jose WCAB.  The name of the case is “XYZZXSJO2 v. Subsequent Injuries Benefits Trust Fund, ADJ 1510738, SJO 0251902”.  The name of the Applicant was anonymized to protect their identity.  34

Download a copy of XYZZXSJO2 now!

Thus far the conventional wisdom has been that the COLA/SAWW increases are calculated starting with the first January 1 after life pension gets paid out.  This is a tremendous change in the COLA/SAWW calculation of life pension.

Assuming a 1/1/2003 injury at exactly 70% permanent partial disability, there would be 426.5 weeks of permanent disability paid after the permanent and stationary date before the life pension gets paid out.  This equates to 8.2 years from the permanent and stationary date that has, thus far, not been taken into account with life pension calculations to date.  To put this in perspective, if someone had an injury on 1/1/2003 and became P&S on that same date5 , the traditional method of calculating the life pension with COLA / SAWW increase would be too low by approximately 44%.

At the moment I’m finalizing a COLA / SAWW life pension calculator to determine what the future life pension rates are assuming a COLA / SAWW increase of 4.7% per year.  If you’re interested in becoming a beta tester for this COLA / SAWW calculator for life pension increases, please drop me a line and ask for access.

Unfortunately, I don’t have a citation for the 4.7% COLA / SAWW increase, but I believe it to be the offiical average used by the DEU6 to calculate commutations of COLA / SAWW increases and adjustments.  If you have an official citation or document from the DEU, please drop me a line so I can include that citation here!

  1. COLA = cost of living adjustment. [↩]
  2. SAWW = state average weekly wage. [↩]
  3. I hope to have a scan of this decision for you soon! [↩]
  4. David DePaolo of WorkCompCentral.com has graciously allowed me permission to offer you a copy of XYZZXSJO2 for download!  Thanks David! [↩]
  5. Not likely. [↩]
  6. Disaiblity Evaluation Unit. [↩]