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.