A legal certified specialist Workers’ Compensation attorney and an expert employment law attorney in the state of California, Lawyer Michael Burgis provides a brief overview of California Workers’ Hirschberger v.s. Stockwell, Harris, Woolverton, and Muehl where Parkinson’s disease leading to mental incapacity aggravated by industrial factors entitles worker to 100% award without apportionment under LC Section 4662(a)(4). Great case for injured workers!
Issues and Holding: Whether apportionment of the applicant’s 100% permanent total disability award found on the basis of the application of the conclusive presumption set forth in Labor Code § 4662(a)(4) “an injury to the brain resulting in permanent mental incapacity,” precluded apportionment even though the applicant’s brain was already damaged as a result of the progressive nature of Parkinson’s disease that existed prior to the industrial injury.
The WCAB rescinded the WCJ’s award of 66% permanent disability after apportionment and awarded applicant 100% permanent total disability based on the conclusive presumption set forthin Labor Code § 4662(a)(4) related to “an injury to the brain resulting in permanent mental incapacity.”
Factual and Procedural Overview: Applicant was employed as an attorney and filed a cumulative trauma for the period of November 30, 2007 through April 22, 2009. It appears in May of 2010 there was a stipulation between the parties in which the applicant was found to have sustained industrial injury “in connection with high blood pressure, Parkinson’s disease and lung injury.” The parties also stipulated at that time that applicant’s “Parkinson’s disease involved “sequelae” of high blood pressure, lung injury, sleep disturbance, and psyche, brain, and back problems.”
The WCJ in awarding the applicant 66% Permanent Disability after apportionment determined that applicant was not entitled to the conclusive presumption related to brain injury causing permanent mental incapacity under Labor Code § 4662(a)(4) because the applicant’s brain was already damaged as a result of the progressive nature of Parkinson’s that existed prior to the industrial injury and also the WCJ concluded that the damage to the applicant’s brain was not a brain injury “resulting in permanent mental incapacity” pursuant to 4662(a)(4).
The WCJ further elaborated in her report on reconsideration that it was her opinion the brain injury referred to in 4662(a)(4) must come within one or more of the categories of being either a specific injury, occupational disease injuries and cumulative injuries. She felt that applicant’s Parkinson’s as a brain injury did not come within the parameters of those categories.
Applicant filed a Petition for Reconsideration that was granted by the WCAB. The WCAB relied on a number of cases all dealing with the conclusive presumption under 4662 (a) and rejected the WCJ’s failure to apply the conclusive presumption under 4662(a)(4). The other factor that supported the WCAB’s holding that the Labor Code 4662(a)(4) conclusive presumption applied was that applicant’s Parkinson’s disease had already been found industrial
back in May 10, 2010. The WCAB also indicated that the medical evidence indicated that applicant’s permanent total disability was the result of mental incapacity caused by the Parkinson’s disease. The Board stated as follows:
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Nothing in the statute or case law precludes application of the section 4662(a)(4) conclusive presumption when the brain
malfunction causing mental incapacity is a result of the progression of an insidious disease, as in this case. The impact of the industrially aggravated disease on applicant’s brain is an injury to the brain, and the consequence of that brain injury is permanent mental incapacity that is conclusively presumed to be total in character under 4662(a)(4).
In applying the conclusive presumption of Labor Code § 4662(a)(4) the Board stated:
The medical evidence establishes that applicant’s current total permanent disability is the result of mental incapacity caused by the effect of the Parkinson’s disease on his brain. Nothing in the statute or case law precludes application of the section 4662(a)(4) conclusive presumption when the brain malfunction causing mental incapacity as a result of the progression of an insidious disease, as in this case. The impact of the industrially aggravated disease on applicant’s brain is an injury to the brain, and the consequence of that brain injury is permanent mental incapacity that is conclusively presumed to be total in character under §4662(a)(4).”
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