Understanding Accumulation of Permanent Disability Under LC 4664(c)(1)

by Sure S. Log

Labor Code § 4664(c)(1) states, “The accumulation of all permanent disability awards issued with respect to any one region of the body in favor of one individual employee shall not exceed 100 percent over the employee’s lifetime unless the employee’s injury or illness is conclusively presumed to be total in character pursuant to Section 4662.” The regions of the body for the purposes of the statute are:

A. hearing

B. vision

C. mental and behavioral disorders

D. the spine

E. the upper extremities, including the shoulders

F. the lower extremities, including the hip joints

G. the head, face, cardiovascular system, respiratory system and all other systems or regions of the body not listed in subparagraphs (A) – (F), inclusive.

LC 4664(c)(1) prevents employees from accumulating permanent disability awards exceeding 100 percent over their lifetime for a single region of the body. It functions fundamentally as an apportionment statute. For example, in Russell v. WCAB (2021) 86 CCC 1011 (writ denied), an employee previously received an award of 83 percent PD for orthopedic and digestive tract injuries, a skin disorder, dietary restrictions, bruxism and TMJ. He subsequently sustained an injury resulting in colon cancer, which resulted in 100 percent PD. The WCAB, however, rated the applicant’s prior PD award for the injured body regions that fell within the “catch-all” provision of LC 4664(c)(1)(G) at 34 percent PD. The WCAB subtracted that from the 100 percent PD for the applicant’s colon cancer, resulting in an award of 66 percent PD for the new injury. The applicant’s petition for writ of review was later denied by the Court of Appeal.

Perhaps responding to that and similar decisions, the WCAB recently issued a decision, Stranak v. City of Los Angeles, 2024 Cal. Wrk. Comp. P.D. LEXIS 179, establishing new standards for application of LC 4664(c)(1). In that case, the parties stipulated that the applicant received prior awards totaling 90 percent PD under LC 4664(c)(1)(G). That would have limited the employer’s liability for any further disability to a body part/system arising under LC 4664(c)(1)(G) to 10 percent PD for any new injury. The applicant sustained a subsequent injury to multiple body parts. The WCJ found that his disability in the form of sleep, cognitive and psyche problems were characterized as mental and behavioral disorders under LC 4664(c)(1)(C). The WCJ categorized these disabilities as arising under LC 4664(c)(1)(G): hypertension, erectile dysfunction, GERD, deep vein thrombosis (DVT), gait derangement, apraxia, agnosia and headaches. The applicant asserted, however, that the DVT should be characterized as a disorder of the lower extremities per LC 4664(c)(1)(F), and that his apraxia and agnosia were mental and behavioral disorders under LC 4664(c)(1)(C).

The WCAB granted reconsideration and noted that in prior decisions, it took a commonsense approach to assignment of disability to a body system under LC 4664(c)(1). It explained, however, that on further review, the issue of assignment of a disability to a body system is a disputed medical issue, and the determination should be based on substantial medical evidence. It explained that in many cases, it might be apparent, even to the lay person, which body system is affected by a disability, and in such cases, the parties may stipulate to body systems under LC 4664(c)(1). But when the parties dispute the body system, resolution requires medical evidence.

The WCAB recognized that a prior disability could fall within multiple body systems. For example, it noted that deep vein thrombosis of the leg could be a disability of the lower extremities or cardiovascular system, or both, or multiple other systems. It held that without a medical expert reviewing the body systems under LC 4664(c)(1), and explaining which systems are disabled in each case, a decision assigning a body system is not based on substantial evidence. The WCAB also held that, “Where a disability impacts multiple body systems, it may be assigned to any of the impacted systems, and it should be assigned to the body system that will generate the higher rating.”

In addition, the WCAB established that the employer bears the burden of proof when it seeks to apply LC 4664(c)(1) and there is a dispute. It explained that a defendant must:

1. Establish a prior award(s) of disability.
2. Establish through expert medical evidence which body systems were impacted by the prior disability.
3. Establish a current award of disability.
4. Establish through expert medical evidence which body systems are impacted by the current disability.

Ultimately, Stranak makes it more difficult for employers to reduce an employee’s award pursuant to LC 4664(c)(1). The WCAB will not automatically apply the statute just because an employee has a prior award. If an employee disputes the application of the statute, an employer must obtain medical evidence to establish overlap in the body systems involved in the prior and current disabilities. The WCAB has held that an employer has the affirmative burden of proving apportionment and it generally has denied apportionment under LC 4663 and LC 4664(b) when an employer cannot meet that burden. So, the WCAB probably will deny the application of LC 4664(c)(1) if an employer does not prove overlap in the body systems with substantial medical evidence.

In addition, even if LC 4664(c)(1) applies, Stranak allows employees to mitigate the impact of the statute on their awards. If an employee can establish with medical evidence that a disability affects multiple body regions/systems for the purposes of LC 4664(c)(1), he or she would be entitled to have the disability assigned to the body system that will achieve the highest PD rating.

Although Stranak is only a panel decision and is not binding on WCJs or other panels, it likely represents the WCAB’s position on application of LC 4664(c)(1) moving forward. So employers must be more proactive and must comply with the guidelines established in the decision if they seek to reduce an employee’s award pursuant to LC 4664(c)(1).