ADJ11130675 · June 5, 2025

No evidence applicant is permanently mentally incapacitated; WCJ's finding of permanent total disability under section 4662(a)(4) was in error and rescinded

From the decision · page 11A traumatic injury may lead to permanent mental incapacity in severe cases; however, a traumatic brain injury is not synonymous with having permanent mental incapacity. "Incapacity" is "the quality or state of being incapable; especially lack of physical or intellectual power or of natural or legal qualifications." ("Incapacity", Merriam-Webster Dictionary, online ed., https://www.merriam-webster.com/dictionary/incapacity, last reviewed September 17, 2024 (emphasis added).) Here, no evidence exists to find that applicant is permanently mentally incapacitated. Applicant was able to coherently testify to the events of his case. The WCJ found applicant's testimony credible.4

No evidence applicant is permanently mentally incapacitated

Favours Defendant prevailed

Applicant was able to coherently testify and WCJ found testimony credible, undermining the basis for conclusive presumption of permanent total disability under Labor Code section 4662(a)(4)

From the decision · page 11A traumatic injury may lead to permanent mental incapacity in severe cases; however, a traumatic brain injury is not synonymous with having permanent mental incapacity. "Incapacity" is "the quality or state of being incapable; especially lack of physical or intellectual power or of natural or legal qualifications." ("Incapacity", Merriam-Webster Dictionary, online ed., https://www.merriam-webster.com/dictionary/incapacity, last reviewed September 17, 2024 (emphasis added).) Here, no evidence exists to find that applicant is permanently mentally incapacitated. Applicant was able to coherently testify to the events of his case. The WCJ found applicant's testimony credible.4

Appeals Board's administrative delay in acting on petition for reconsideration was not the fault of parties

Favours Applicant prevailed

Equitable tolling applied to extend time for Appeals Board to act, allowing reconsideration on merits

From the decision · page 9In this case, the WCJ issued the Findings and Award on November 18, 2022, and applicant filed a timely petition on December 12, 2022. According to EAMS, the case file was first transmitted to the Appeals Board on February 22, 2023, which was beyond 60 days from the petition for reconsideration being filed. Accordingly, the Appeals Board failed to act on the petition within 60 days, through no fault of the parties. The Appeals Board granted the petition on March 7, 2023, within 60 days of the petition being transmitted to the Appeals Board. In so doing so, we sent a clear signal to the parties of our intention to exercise jurisdiction and issue a final decision after reconsideration. Neither party expressed any opposition to this course of action, and it appears clear from the fact that neither party sought judicial review of our grant of reconsideration that both parties have acted in reliance on our grant.

Has yet to find applicant permanent and stationary

From the decision · page 5(Applicant's Exhibit 11, Report of Lawrence Miller, M.D., August 16, 2019, pp. 2-3.) Dr. Miller has yet to find applicant permanent and stationary. (Applicant's Exhibit 7,

Found multiple disabilities apportioned to respective dates of injury; applicant not precluded from returning to usual employment on orthopedic basis

From the decision · page 5M.D., whose findings were not discussed in the WCJ's assignment of permanent total disability. (See Joint Exhibit 4, Report of Charles Sadler, M.D., July 31, 2019; Joint Exhibit 6, Deposition of Charles Sadler, M.D., December 6, 2019.) Dr. Sadler found multiple disabilities and apportioned them to their respective dates of injury. (See generally, id.) Applicant was not precluded from returning to his usual and customary employment on an orthopedic basis. (Joint Exhibit 4, supra at p. 29.)

Assigned 40% whole person impairment for vestibular problem related to 2017 injury; initially no apportionment, later assigned 20% non-industrial apportionment due to diabetes; unable to opine on permanent mental incapacity

Not a psychiatrist, cannot comment on mental capacity

From the decision · page 5Applicant was seen by neurological QME Natalia Ratiner, M.D., who provided the following opinion on impairment and causation:

Labor Code section 4662(a)(4)

Labor Code section 4662(a) conclusive presumption of total disability in cases of permanent mental incapacity

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

From the decision · page 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.

Applicant's credible testimony

From the decision · page 11A traumatic injury may lead to permanent mental incapacity in severe cases; however, a traumatic brain injury is not synonymous with having permanent mental incapacity. "Incapacity" is "the quality or state of being incapable; especially lack of physical or intellectual power or of natural or legal qualifications." ("Incapacity", Merriam-Webster Dictionary, online ed., https://www.merriam-webster.com/dictionary/incapacity, last reviewed September 17, 2024 (emphasis added).) Here, no evidence exists to find that applicant is permanently mentally incapacitated. Applicant was able to coherently testify to the events of his case. The WCJ found applicant's testimony credible.4