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 []

Putting some teeth in the SAWW
Putting some teeth in the SAWW

We’ve all seen charts with the State Average Weekly Wage (“SAWW”) increases printed on them.1 But, how useful are these when you’re dealing with an opposing counsel who won’t accept your chart or calculations based on that chart?

It sure would be nice to have all the SAWW information from the Division of Workers’ Compensation all in once place.  Well, it just so happens I’ve already done this for you.

Here is a copy of every DWC Newsline from 2003 through 2009 with information on every SAWW increase from 2004 through 2010, all ready to go in one handy-dandy PDF.

[Download not found]

Share and enjoy!

More on Duncan v. WCAB, COLA’s, and SAWW increases tomorrow!

(Don’t forget to download a copy of Duncan v. WCAB here!)

  1. Photo courtesy of Aeioux []

Mini version of Duncan v. WCAB
Mini version of Duncan v. WCAB

In the spirit of my recent post summing up Ogilvie II and Almaraz/Guzman II in just three sentences each, I bring you a summary of the recent Duncan v. WCAB decision in just one sentence:1

The COLAs found in section 4659, subdivision (c) should be applied to life pensions or total permanent disability compensation as from January 1, 2004.2

Yes, that’s really it.  The Duncan decision consists mostly of background and discussion.  The actual decision is basically that one line above.

Come back tomorrow for more information about SAWW increases, COLA calculations, and more!

(Don’t forget to download a copy of Duncan v. WCAB here!)

  1. Photo courtesy of MarkAllanson []
  2. Duncan v. WCAB, page 18. []