The total disability payment is at the rate of the TTD payment at the date of the injury. The TTD payment increases under LC 4661.5 but after P&S the payment is set at the TTD rate at the date of the injury. Claims admin wants a P&S date before the 2 year period.  Employee wants to be on TTD as long as possible to get the 2-year increase.

LC§4659(b) says pay rate is same as total temporary disability indemnity; Duncan v. The Singer Co. 43 CCC 467 (4661.5 not applicable to total permanent disability)

For injuries occurring on or after 1/1/03 commencing on 1/1/04 the payment is increased by SAWW percentage increase from prior year as reported by the US department of Labor for California.

LC§4453(a)(10)

For injuries occurring on or after 1/1/05 commencing 1/1/06 the limits on actual earnings to get Average Weekly Earnings are increased annually by the percentage increase of SAWW.

LC§4453(a)(10)

A panel again confirmed that the TD COLA, per L.C. Section 4659, does apply to less than maximum earners in 100% PD cases.

Wilson v. SCIF (2011) 39 CWCR 145 (WCAB)

Injured worker is entitled to a 100% award without reduction for a prior 18% award because the loss of use of both hands (in effect) requires a 100% award per Labor Code section 4662.

Dragomir-Tremoureux v. Kaiser Foundation Hospitals (2005) 33 CWCR 302 (WCAB)

 

Def denied credit against award of 100% PD for PD previously paid on a 30% PD award for same body parts against same defendant, which award had been reopened and was contributing cause to 100% PD.  Per WCJ, the awards were for distinctly different benefits and applicant was entitled to full benefit of each award.

City of Buenaventura v. WCAB (Schulte) (2006) 71 CCC 823 (CA 2d wd)

 

100% PD caused by multi-chemical sensitivity alone, so no overlap by 15% prior award for neck and back injuries

United Airlines v. WCAB (Dodson) (2010) 75 CCC 389 (CA 2nd – wd)

After WCAB awards weekly indemnity at 100% PD rate in case involving amputation of both legs, but defers issue of disability as temporary or permanent,  Court of Appeal reverses, holding that status of TD vs. PD must be determined in order to apply apportionment rules of SB 899.

Lindsay District Hospitals v. WCAB (Fuller) (2005) 33 CWCR 184 (CA 5th – non pub)

 

Attorney’s Fees in 100% cases:  Award of fees of 15% of PV of 100% PD award upheld, and commutation of fees based on DEU life expectancy tables was proper, in spite of defendant’s contention that applicant’s life expectancy was lower than tables indicated.

Wilton Fire Protection District v. WCAB (2008) 73 CCC 1380 (CA 3rd - wd)

 

Board panel preferred that fees be commuted in a 100% case by use of UIR method (uniform increasing reduction) rather UR method (uniform reduction)

Martinez-Reyes v. SCIF (2010) 38 CWCR 68 (WCAB)

 

In determining appropriate attorney fee in 100% case, WCJ must consider present value of award; including future expected COLA increases. WCAB concluded that 12% fee award was to low in this case because it was of above-average complexity.

Wilson v. SCIF (2011) 39 CWCR 145 (WCAB)

 

Apportionment in 100% cases:

 

No apportionment of 100% award b/c of limited education and poor English skills [Applicant performed her job for 29 years w/her education and language skills; these items were not the direct cause of her disability.]

University of Cal v. WCAB (Barraza) (2007) 72 CCC 1421 (CA 1st wd)

 

Following Vargas 71 CCC 500, 10% of   new and further PD   properly apportioned to pre-existing symptomatic and partially disabling Guillain-Barre syndrome, reducing PD award to 99% (in spite of fact that there was no apportionment of underlying award)

Wilson-Marshall v. WCAB (2007) 72 CCC 1431 (CA 4th wd)

 

Ok to apportion 60% of TPD (100%) to non-industrial pulmonary condition which was not disabling before I/W fell from scaffold.

Mills v. WCAB (2008) 36 CWCR 138 (CA 5th-non pub)

Bd panel upheld 74% award based on finding of 100% PD (unable to compete) less 26% pre-existing psych PD based on pre-existing learning disability.

Sherron v. American Cas. Co. (2008) 36 CWCR 201 (WCAB)