Permanent Total Disability Benefits – deja vu all over again

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 []

Workers' Compensation Defense Attorney Certified Specialist Workers Compensation Law California State Bar Board of Legal Specialization Managing Attorney of Purinton, Jimenez, Labo & Wu, LLP

1 Comment on “Permanent Total Disability Benefits – deja vu all over again

  1. Another issue comes with an case that SAWW applies is how to reduce an injured’s future PTD or LP rate. Munoz case(2007 cal wrk P.D. LEXIS 197) is a WCAB panel decision. The claims manager asked our legal department to appeal a judge’s decision on using the so called Uniformly Increasing Reduction method instead of the the Uniform Reduction method traditionally the only method used in an 100% case. The guys in the legal department cited Munoz and refused to file a recon. I wonder if another panel would differently….Anyone knows which method was used in Duncan case?

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