California Labor Code § 4662

Determinative passage · p.1Applicant petitioned for reconsideration of the Findings and Award issued on September 9, 2025 by the workers' compensation administrative law judge (WCJ) in this matter. Therein, the WCJ found that applicant sustained injury arising out of and in the course of employment (AOE/COE) to his thoracic spine, right shoulder, chest/ribs, right-upper extremity, and in the form of peripheral vascular disease/deep vein thrombosis, while employed as a log chocker on October 5, 2015. The WCJ further found that the injury caused permanent disability of 61%, after apportionment.

Applied to permanent disability determination.

Determinative passage · p.3In Department of Corrections and Rehabilitation v. Workers' Comp. Appeals Bd. (Fitzpatrick) (2018) 27 Cal.App.5th 607 [83 Cal.Comp.Cases 1680], the court concluded that the issue of whether an applicant is permanently and totally disabled must be determined through impairment ratings by application of the AMA Guides to the Evaluation of Permanent Impairment (AMA Guides) pursuant to Labor Code section46602. In addition, a finding under section 4662(b), "in accordance with the fact," does not provide a second independent path to permanent total

Applied to reject vocational expert opinion as sole basis for permanent total disability.

Determinative passage · p.8It clarified that section 4662(b) does not provide an independent, alternative path to a finding of PTD that bypasses the permanent disability rating schedule (PDRS) and its requirement to use the Combined Values Chart (CVC). The court determined that section 4662(b), which allows for PTD to be found "in accordance with the fact" for injuries not listed as presumed total in section 4662(a), must still follow the rating process outlined in section 4660. This means a Workers' Compensation Judge (WCJ) cannot simply ignore the scheduled rating (which uses the CVC to combine multiple disabilities) and find

Section 4662(b) does not provide an alternative path to PTD that bypasses the rating schedule; the rating schedule must be rebutted properly.

Determinative passage · p.10(1) Loss of both eyes or the sight thereof. (2) Loss of both hands or the use thereof. (3) An injury resulting in a practically total paralysis. (4) An injury to the brain resulting in permanent mental incapacity. In all other cases, total disability is determined in accordance with the fact. (Lab. Code § 4662(b).) Section 4662(a) originally provided for a conclusive presumption in cases of "An injury to the brain resulting in incurable imbecility or insanity." (Former Lab. Code, § 4662(d) (enacted 1937) amended by (Stats. 2007, ch. 31, § 2), further amended by (Stats. 2014, ch.

WCJ's finding of permanent total disability under section 4662(a)(4) was reviewed and found unsupported by evidence

Determinative passage · p.1Applicant and defendant both seek reconsideration of the October 23, 2024 Joint Findings and Awards (F&A), in which the workers' compensation administrative law judge (WCJ) found in Case No. ADJ12405860, that applicant, while employed on January 9, 2008 by the California Department of Corrections and Rehabilitation (CDCR) as a corrections office sustained injury arising out of and in the course of employment to her right shoulder. The WCJ further found in ADJ7255430, that applicant, while similarly employed from July 7, 1998 to January 15, 2010, sustained industrial injury to her psyche, but did not sustain injury to her neck, low back, bilateral shoulders, bilateral hands, bilateral wrists, and/or in the form of bilateral carpal tunnel syndrome. The WCJ further found in ADJ7241349 that applicant, while similarly employed on January 15, 2010, sustained industrial injury to her bilateral shoulder, wrists, and in the form of bilateral carpal tunnel syndrome, and to the psyche.

Applied to determine compensability of injuries arising out of and in the course of employment.

Determinative passage · p.5Labor Code § 4662, states, in pertinent part: (a) Any of the following permanent disabilities shall be conclusively presumed to be total in character:... (4) An injury to the brain resulting in permanent mental incapacity. (Cal. Lab. Code § 4662(a)(4).)

The applicant's traumatic brain injury meets the criteria for conclusive presumption of permanent total disability, rebutting apportionment.

Determinative passage · p.3Defendant further contends that in addressing the issue of permanent disability, the WCJ erred in determining that applicant sustained permanent and total disability "in accordance with the fact" under Labor Code section 4662(b). In so contending, defendant relies upon Department of Corrections & Rehabilitation v. Workers' Comp. Appeals Bd. (Fitzpatrick) (2018) 27 Cal.App.5th 607 [83 Cal.Comp.Cases 1680]. Therein the Court of Appeal held that section 4662(b) does not provide an independent basis to find permanent and total disability "in accordance with the fact," where the medical record justifies a scheduled rating of less than 100% and the scheduled rating is not rebutted.

The Board affirmed the WCJ's finding of permanent and total disability supported by substantial evidence.

Determinative passage · p.28In summary, we agree with the WCJ's decision to rely on the reporting of applicant's treating physicians along with the QME in this matter, and do not find that applicant obtained the reporting in contravention of section 4062.2. We further affirm the WCJ's determination as to the date of injury pursuant to section 5412. We agree that applicant has not established that he is totally disabled "in accordance with the fact" pursuant to section 4662(b), but will defer the issue of whether applicant has established presumptive total disability under section 4662(a)(4). We conclude that the record at present does not adequately address the issue of whether applicant has sustained compensable psychiatric injury or sleep disorder, and we will return the matter to the

Deferred determination of presumptive total disability and permanent disability pending further evidence.