1

Filed 9/25/18

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----

DEPARTMENT OF CORRECTIONS AND 

REHABILITATION,

Petitioner,

v.

WORKERS’ COMPENSATION APPEALS BOARD 

and DEAN FITZPATRICK,

Respondents.

C085850

(Super. Ct. No. ADJ8815575)

ORIGINAL PROCEEDING: Petition for writ of review. Petition granted. Noah 

Tempkin, Judge.

Carla R. Anene, Mary R. Huckabaa, and Lisa A. Stolzy, for Petitioner.
2

Finnegan, Marks, Theofel & Desmond, Randall G. Poppy, for the California 

Chamber of Commerce, as Amicus Curiae on behalf of Petitioner.

John F. Shields, for Respondent Workers Compensation Appeals Board.

Metzinger & Associates and Ronald M. Metzinger, for Respondent Dean 

Fitzpatrick. 

Law Office of Joseph Waxman and James Achermann, for the California 

Applicants’ Attorneys Association, as Amicus Curiae on behalf of Respondent Dean 

Fitzpatrick.

We granted the Department of Corrections and Rehabilitation’s (Department) 

petition for a writ of review (Petition) of a Workers’ Compensation Appeals Board 

(Board) opinion, which raises the following statutory construction question: Must a

finding of permanent total disability1 be made in accordance with Labor Code2

section 4660,3 or does section 4662, subdivision (b), provide a separate path to such a 

finding? We conclude section 4660 governs how the finding and award of permanent 

total disability shall be made “in accordance with the fact,” as provided in section 4662, 

subdivision (b).

GENERAL BACKGROUND

“The right to workers’ compensation benefits is wholly statutory and is not 

derived from common law.” (DuBois v. Workers’ Comp. Appeals Bd. (1993) 5 Cal.4th 

382, 388.) To assist in a better understanding of the finding and award subject to this 

appeal and the discussion that follows, we begin with the general background of the 

 

1 Other than those permanent disabilities conclusively presumed to be total as 

identified in Labor Code section 4662, subdivision (a).

2 All further section references are to the Labor Code unless otherwise specified.

3 Section 4660 applies “to injuries occurring before January 1, 2013.” The injury at 

issue in this case occurred “during a cumulative period ending December 7, 2011.”
3

applicable statutory and regulatory framework underlying workers’ compensation 

permanent disability awards.

I

The Permanent Disability System Generally

“Employers are responsible to workers who sustain permanent disabling injuries 

that arise out of and in the course of their employment.” (Ogilvie v. Workers’ Comp. 

Appeals Bd. (2011) 197 Cal.App.4th 1262, 1269.) “A permanent disability is the 

irreversible residual of a work-related injury that causes impairment in earning capacity, 

impairment in the normal use of a member or a handicap in the open labor market.” (Id. 

at p. 1270.) “A disability is considered permanent when the employee has reached 

maximal medical improvement, meaning his or her condition is well stabilized, and 

unlikely to change substantially in the next year with or without medical treatment.” 

(Cal. Code Regs., tit. 8, § 10152.)

There are two types of permanent disability: partial and total. Permanent total 

disability is “a permanent disability with a rating of 100 percent permanent disability 

only.” (§ 4452.5, subd. (a).) Permanent partial disability is “a permanent disability with 

a rating of less than 100 percent permanent disability.” (§ 4452.5, subd. (b).)

“ ‘Permanent disability payments are calculated by first expressing the degree of

permanent disability as a percentage and then converting that percentage into an award 

based on a table.’ [Citation.] Since 1937, permanent disability awards have been 

assessed using a schedule that ‘was always expressly intended to manifest “prima facie 

evidence of the percentage of permanent disability to be attributed to each injury covered 

by the schedule.” ’ ” (Ogilvie v. Workers’ Comp. Appeals Bd., supra, 197 Cal.App.4th at 

p. 1270.) “In 2004, the Legislature enacted omnibus changes to California’s workers’

compensation system as ‘an urgency measure designed to alleviate a perceived crisis in 

skyrocketing workers’ compensation costs.’ ” (Ibid.) The revised provisions, including 

section 4660, “substantially affected the assessment of an injured worker’s permanent 
4

disability.” (Milpitas Unified School Dist. v. Workers’ Comp. Appeals Bd. (2010) 187 

Cal.App.4th 808, 818; Stats. 2004, ch. 34, § 32.) 

II

The Pertinent Statutes And Administrative Rule

A

Section 4660

“Section 4660 prescribes the method for determining the percentages of permanent 

disability for workers’ compensation purposes” for “injuries occurring before January 1, 

2013.” (Chang v. Workers’ Comp. Appeals Bd. (2007) 153 Cal.App.4th 750, 753; 

§ 4660.) “In determining the percentages of permanent disability, account shall be taken 

of the nature of the physical injury or disfigurement, the occupation of the injured 

employee, and his or her age at the time of the injury, consideration being given to an 

employee’s diminished future earning capacity.” (§ 4660, subd. (a).) The “ ‘nature of 

the physical injury or disfigurement’ ” requirement “shall incorporate the descriptions 

and measurements of physical impairments and the corresponding percentages of 

impairments published in the American Medical Association (AMA) Guides to the 

Evaluation of Permanent Impairment (5th Edition)” (hereinafter Guides) and “an 

employee’s diminished future earning capacity shall be a numeric formula based on 

empirical data and findings from [a 2003 report] prepared by the RAND Institute for 

Civil Justice, and upon data from additional empirical studies” (§ 4660, subd. (b)(1) & 

(2)).

Although “[a] schedule for assessing permanent disability had been required since 

1937 . . . no guidance was provided for the formulation of the schedule until the 2004 

amendment.” (Milpitas Unified School Dist. v. Workers’ Comp. Appeals Bd., supra, 187 

Cal.App.4th at p. 818.) In section 4660, subdivision (c), the Legislature directed the 

administrative director “to develop and regularly amend the rating schedule based on 

specified data from empirical studies.” (Milpitas, at p. 818.) “The schedule is to 
5

‘promote consistency, uniformity, and objectivity’ [citation], and the scheduled rating 

continues to be ‘prima facie evidence of the percentage of permanent disability to be 

attributed to each injury covered by the schedule.’ ” (Ogilvie v. Workers’ Comp. Appeals 

Bd., supra, 197 Cal.App.4th at p. 1271; § 4660, subds. (c) & (d).) 

B

Administrative Rule

In accordance with the Legislature’s directive in section 4660, subdivision (c), the 

administrative director adopted and published a revised schedule for rating permanent 

disabilities effective January 1, 2005 (2005 Schedule), “which incorporated the fifth 

edition of the Guides in its entirety.” (Milpitas Unified School Dist. v. Workers’ Comp. 

Appeals Bd., supra, 187 Cal.App.4th at p. 818; Cal. Code Regs., tit. 8, § 9805; 2005 

Schedule, p. 1-2.) 

The 2005 Schedule states: “A permanent disability rating can range from 0% to 

100%. Zero percent signifies no reduction of earning capacity, while 100% represents 

permanent total disability. A rating between 0% and 100% represents permanent partial 

disability. Permanent total disability represents a level of disability at which an employee 

has sustained a total loss of earning capacity. Some impairments are conclusively 

presumed to be totally disabling. (Lab. Code, § 4662.)” (2005 Schedule, pp. 1-2-1-3.) 

The process for calculating the permanent disability rating consists of multiple steps.

Generally, the evaluating physician first prepares an impairment rating for each 

body part arising out of the injury in accordance with the Guides. (2005 Schedule, p. 1-

2.) “Initial impairment ratings are consolidated by body part . . . and converted to a 

whole person impairment rating.” (Ibid.) A psychiatric impairment is evaluated by a 

physician using the global assessment of function (GAF) scale and the resultant score is

then converted to a whole person impairment rating using the conversion table in the 
6

2005 Schedule. (2005 Schedule, p. 1-12.) The whole person impairment rating is 

expressed as a percentage (Almaraz v. Environmental Recovery Services/Guzman v. 

Milpitas Unified School Dist. (2009) 74 Cal.Comp.Cases 1084, 1092) and “then adjusted 

to account for diminished future earning capacity, occupation and age at the time of 

injury to obtain a final permanent disability rating” (2005 Schedule, p. 1-2).

As applicable here, “[a] single injury can result in multiple impairments of several 

parts of the body. . . . Multiple impairments must be combined in a prescribed manner to 

produce a final overall rating.”4 (2005 Schedule, p. 1-5.) “When combining two or more 

ratings to create a composite rating, the ratings must be expressed in the same scale” and 

the numbers “are generally combined using the following formula where ‘a’ and ‘b’ are 

the decimal equivalents of the impairment or disability percentages: [¶] a+b(1-a)”

(Formula). (2005 Schedule, pp. 1-3, 1-10.) Except for specified impairments (not 

applicable here), “all impairments are converted to the whole person scale, adjusted, and 

then combined to determine the final overall disability rating.” (2005 Schedule, p. 1-11.) 

Section 8 of the 2005 Schedule contains the combined values chart (Chart), and 

states: “Use this chart to combine two or more impairments, or two or more disabilities.” 

(2005 Schedule, p. 8-1.) The combined values in the Chart range from 2% to 100%. 

(2005 Schedule, pp. 8-2-8-4.) The Guides describe the Chart as “[a] method used to 

combine multiple impairments, derived from the formula A+B(1-A) = combined values 

of A and B, which ensures that the summary value will not exceed 100% of the whole 

person.” (Guides, p. 600.)

 

4 We note that, where separate injuries are involved, separate awards are required 

for each injury. (Benson v. Workers’ Comp. Appeals Bd. (2009) 170 Cal.App.4th 1535.) 

Nothing in the record or the briefs indicates separate injuries are at issue here. 
7

“In many cases, . . . the revision to the schedule for rating permanent disabilities 

[in the 2005 Schedule] reduces the amount a worker will be compensated for a permanent 

disability,” as compared to the prior schedule. (Genlyte Group, LLC v. Workers’ Comp. 

Appeals Bd. (2008) 158 Cal.App.4th 705, 715-716, fn. omitted; see, e.g., Vera v. 

Workers’ Comp. Appeals Bd. (2007) 154 Cal.App.4th 996, 1000 [new schedule resulted

in permanent disability rating of 26 percent; former schedule resulted in rating of 59 

percent].) The scheduled rating is not absolute however. The scheduled rating (or 

component parts of the rating) may be rebutted based on the specific circumstances of a 

case. (See Ogilvie v. Workers’ Comp. Appeals Bd., supra, 197 Cal.App.4th at pp. 1263-

1276; Contra Costa County v. Workers’ Comp. Appeals Bd. (2015) 240 Cal.App.4th 746, 

755-761; Milpitas Unified School Dist. v. Workers’ Comp. Appeals Bd., supra, 187 

Cal.App.4th at pp. 827-829.) 

C

Section 4662

Section 4662, subdivision (a), identifies four instances of “permanent disabilities 

[that] shall be conclusively presumed to be total in character.” None of those instances is

at issue here. Section 4662, subdivision (b), provides that “[i]n all other cases, permanent 

total disability shall be determined in accordance with the fact.” For our purposes, 

section 4662 has remained substantively unchanged since its adoption in 1913.5

FACTUAL AND PROCEDURAL BACKGROUND

A workers’ compensation administrative law judge found Dean Fitzpatrick “100 

percent permanently totally disabled” as a result of injury to his heart and psyche 

 

5 The statute has been amended twice since its enactment. In 2007 and 2014, it was 

amended regarding injuries resulting in mental incapacity, and the 2014 amendment 

further renumbered the statute into subdivisions (a) and (b). (Stats. 2007, ch. 31, § 2; 

Stats. 2014, ch. 144, § 46.)
8

sustained during the course of his employment as a correctional officer. In his written 

findings, award and order, and accompanying opinion on decision (Decision), the

administrative law judge relied on the reports of two doctors regarding Fitzpatrick’s 

injury -- Peter Chang-Sing for his heart and Richard Lieberman for his psyche. 

Chang-Sing rated Fitzpatrick’s whole person impairment for his heart at 75 

percent and his resulting permanent disability at 97 percent. Lieberman rated 

Fitzpatrick’s GAF score at 45, resulting in 40 percent whole person impairment, and 

permanent disability of 71 percent for his psyche. It is undisputed that, combining the 97

percent and 71 percent ratings under the Chart and in accordance with the Formula, 

Fitzpatrick’s permanent disability scheduled rating is 99 percent -- permanent partial 

disability. 

In his Decision, the administrative law judge quoted substantial portions from 

Lieberman’s reports, in which Lieberman detailed his dissatisfaction with Fitzpatrick’s 

medications and treatment. In the section entitled “PERMANENT DISABILITY,” the 

administrative law judge wrote: “In the July 16, 2015 report, Dr. Lieberman felt that 

applicant was ‘ ...on strict psychiatric grounds totally and permanently disabled’ . . . Dr. 

Lieberman elaborated further: [¶] ‘I am dubious that this patient will return to work in 

any capacity. From a strict psychiatric standpoint, there is that possibility remotely that if 

he undergoes a cardiac transplant, and if this is successful, that his anxiety will 

significantly abate, which could allow him to return to work in some capacity, but 

assuming that he does not have this, and if his cardiac condition does not improve, he will 

not return to work.’ ” 

The administrative law judge concluded: “Based upon [Fitzpatrick’s] credible 

testimony, the medical reports of Dr. Chang-Sing and Dr. Lieberman, and in accordance 

with the facts (see Labor Code §4662(b)), it is found that applicant is permanently totally 

disabled.” The administrative law judge did not mention or discuss the combined rating 

under the 2005 Schedule.
9

The Department appealed the Decision to the Board through a petition for 

reconsideration. The Board summarized the grounds for the Department’s petition as 

follows: “[The Department] contests the finding that [Fitzpatrick] is totally permanently 

disabled, arguing that the opinion of [Lieberman] is not substantial medical evidence to 

support the award, nor is it adequate to rebut the scheduled rating of 99% permanent 

disability, as [Lieberman] fails to address the issue of [Fitzpatrick’s] vocational 

feasibility. [The Department] further argues that the vocational expert evidence does not 

support the [judge’s] determination, even though the [judge] did not rely upon this 

evidence. Finally, [the Department] argues that [Lieberman’s] opinion does not provide a 

basis for finding [Fitzpatrick] totally permanently disabled ‘in accordance with the fact,’ 

under Labor Code section 4662(b), where the scheduled rating of [Fitzpatrick’s] 

psychiatric disability alone does not come close to total permanent disability, and a rating 

combining his cardiac disability only rates at 99%.” 

The administrative law judge prepared a report and recommendation on petition 

for reconsideration (Report) for the Board’s review. The Board affirmed the Decision in 

its opinion and order denying the petition for reconsideration (Opinion), and adopted and 

incorporated the Report “as the decision of the Board.” 

In the Report, the administrative law judge wrote: “With regard to the argument 

that [Fitzpatrick] didn’t rebut the rating schedule, total permanent disability may be 

shown by presenting evidence showing total permanent disability ‘in accordance with the 

fact’ as provided in Labor Code section 4662, subdivision (b), or by rebutting a Labor 

Code section 4660 scheduled rating [citations]. The Appeals Board specifically 

discussed the different paths provided by these two Labor Code sections in [Coca-Cola 

Enterprises, Inc. v. Workers’ Comp. Appeals Bd. (Jaramillo) (2012) 77 Cal.Comp.Cases 

445 [writ. den.] (Jaramillo)]. In the present case, the undersigned relied upon Labor 

Code section 4662, subdivision (b), [Fitzpatrick’s] credible testimony, and the opinions 

of [Lieberman and Chang-Sing]. Specifically, the undersigned relied upon Dr. 
10

Lieberman’s opinion that applicant was permanently and totally disabled psychiatrically . 

. . . [¶] . . . [The Department] has not presented evidence that would compromise Dr. 

Lieberman’s opinion that [Fitzpatrick] was permanently and totally disabled. Dr. 

Lieberman clearly felt that [Fitzpatrick] was 100% disabled psychiatrically and was 

dubious that applicant could return to work in any capacity . . . .” 

The Department subsequently petitioned for a writ of review of the Opinion, 

which we granted. 

DISCUSSION6

The Department and amicus curiae the California Chamber of Commerce argue 

the Board exceeded its jurisdiction by relying on section 4662, subdivision (b), to find 

permanent total disability because it should have proceeded pursuant to section 4660, 

which resulted in an unrebutted scheduled permanent disability rating of 99 percent. 

Fitzpatrick and amicus curiae the California Applicants’ Attorneys Association argue the 

Board’s Opinion should be affirmed because section 4662 applies to permanent total 

disability and section 4660 applies to permanent partial disability, and the Board’s 

permanent total disability finding under section 4662, subdivision (b), “in accordance 

with the fact” was appropriate and is supported by substantial medical evidence. 

In its opposition to the Petition, the Board acknowledges that Board panels have 

“provided varying analyses on how the [2004 amendments] should be construed,” but 

does not defend the position taken in its Opinion. Instead, the Board raises a new theory 

on appeal -- that the finding of permanent total disability was made “within the 

parameters of section 4660, the Guides and the [2005 Schedule]” because the 

 

6 The Department’s request for judicial notice of legislative history documents and 

the 2005 Schedule is granted. 
11

administrative law judge appropriately added the two disability ratings together rather 

than using the combined rating under the Chart.7

I

Standard Of Review

Our review is limited to determining whether the Board acted “without or in 

excess of its powers” and whether its decision was unreasonable, not supported by 

substantial evidence, or procured by fraud. (§ 5952, subds. (a)-(d).) However, “[t]he 

findings and conclusions of the appeals board on questions of fact are conclusive and 

final and are not subject to review. Such questions of fact shall include ultimate facts and 

the findings and conclusions of the appeals board.” (§ 5953.) 

Unless clearly erroneous, the Board’s interpretation of workers’ compensation 

laws is entitled to great weight. (Genlyte Group, LLC v. Workers’ Comp. Appeals Bd., 

supra, 158 Cal.App.4th at p. 714.) “Nevertheless, issues of statutory interpretation and 

questions of law are subject to our independent review, and we need not defer to the 

[Board’s] legal determinations where they are contrary to the plain meaning of the statute 

or prevailing case law.” (Contra Costa County v. Workers’ Comp. Appeals Bd., supra, 

240 Cal.App.4th at p. 756.) When the statutory language is clear and unambiguous, there 

is no room for the Board’s interpretation. (DuBois v. Workers’ Comp. Appeals Bd., 

supra, 5 Cal.4th at pp. 387-388.) 

 

7 At oral argument, the Board’s counsel stated it was not arguing a new theory on 

appeal because “it’s the same facts, the same evidence, the same law that’s being argued 

here.” We disagree. Neither the administrative law judge nor the Board discussed or 

explained why or how it could add disability ratings together to arrive at the final 

disability rating in this case, and they did not do so to reach the finding of permanent total 

disability. Therefore, the Department was not given an opportunity to object to or argue 

against such an application. This clearly shows the Board did, in fact, raise a new theory 

on appeal. 
12

The Board argues our review is limited by section 5953 because “in this case the 

[Board’s] finding of permanent total disability is in accordance with the fact and should 

be affirmed because it is [sic] was made within the statutory process and is supported by 

substantial evidence in light of the entire record.” We disagree. The question presented 

on appeal is whether the Board correctly interpreted and applied sections 4660 and 4662, 

subdivision (b). This is an issue of statutory construction, subject to our independent 

review. Only if the Board correctly interpreted and applied the statutes do we review the 

Board’s Opinion for substantial evidence.

II

Permanent Total Disability Determinations Under 

Section 4662, Subdivision (B), Are Subject To Section 4660

We consider questions of statutory interpretation in accordance with wellestablished principles of statutory construction. “Our primary task is to ascertain the 

Legislature’s intent so as to effectuate the purpose of the law. [Citation.] Toward this 

end we must accord a reasonable and commonsense interpretation consistent with the 

Legislature’s purpose.” (Donald v. Cafe Royale, Inc. (1990) 218 Cal.App.3d 168, 176-

177.) “[W]e turn to the words in the statute and give effect to the statute according to the 

usual, ordinary import of the language used in framing it.” (Klee v. Workers’ Comp. 

Appeals Bd. (1989) 211 Cal.App.3d 1519, 1523.) We do not, however, look at those 

words in isolation. “ ‘The meaning of a statute may not be determined from a single 

word or sentence; the words must be construed in context, and provisions relating to the 

same subject matter must be harmonized to the extent possible.’ ” (People v. Shabazz

(2006) 38 Cal.4th 55, 67.) “When the language is clear and there is no uncertainty as to 

the legislative intent, we look no further and simply enforce the statute according to its 

terms.” (DuBois v. Workers’ Comp. Appeals Bd., supra, 5 Cal.4th at pp. 387-388.)
13

We easily harmonize sections 4660 and 4662, subdivision (b).8 Section 4662, 

subdivision (b), provides that, in nonconclusively presumed permanent total disability 

cases (i.e., those cases not enumerated in section 4662, subdivision (a)), permanent total 

disability may be found “in accordance with the fact.” This section does not, however, 

address how such a determination shall be made; read plainly, it merely provides that a 

determination of permanent total disability shall be made on the facts of the case. 

Section 4660 addresses how the determination on the facts shall be made in each 

case for injuries occurring before January 1, 2013.

9

 Indeed, section 4660 expressly 

 

8 Amicus curiae the California Applicants’ Attorneys Association points us to 

section 4660.1, subdivision (g), which provides: “Nothing in this section shall preclude a 

finding of permanent total disability in accordance with Section 4662.” Section 4660.1 

was added to the statutory scheme in 2012, with an effective date of January 1, 2013, 

addressing the determination of “the percentages of permanent partial or permanent total 

disability” for “injuries occurring on or after January 1, 2013.” (§ 4660.1 & subd. (a); 

Stats. 2012, ch. 363, § 60.) As we can best surmise, it appears the California Applicants’ 

Attorneys Association believes this subdivision supports its interpretation that the 

Legislature intended for section 4662 (both subdivisions (a) and (b)) to be construed 

independent and separate from section 4660. There are two problems with this argument. 

First, the language in section 4660.1, subdivision (g), does not appear in section 4660. 

We note that section 4660 was amended in 2012 when section 4660.1 was added (see 

Stats. 2012, ch. 363, § 59), but the Legislature did not add the language in section 4660.1, 

subdivision (g), to section 4660. We decline to read words into a statute that do not exist

in its text. (Code Civ. Proc., § 1858.) Second, Fitzpatrick’s injury occurred “during a 

cumulative period ending December 7, 2011,” rendering section 4660.1 inapplicable

because the injury did not occur on or after January 1, 2013. Accordingly, we do not 

address or interpret any provision of section 4660.1.

9 Although we did not expressly address this issue, we noted this relationship 

between sections 4660 and 4662, subdivision (b), in Vincent v. Industrial Acc. Com.

(1955) 136 Cal.App.2d 679, in which we explained: “[T]he determination referred to in 

subsection (a) of Labor Code, section 4660, will of necessity be arbitrary to a degree, and 

no one can determine with nicety exactly how much an injured employee should receive 

for the permanent loss, or loss of use, of a particular member of his body. This is 

illustrated by the provisions of section 4662 which provide that except as to certain 

enumerated cases, the determination and extent of permanent disability shall be made by 

the commission ‘in accordance with the fact.’ [¶] To assist the commission in this 
14

applies to the determination of “the percentages of permanent disability” and permanent 

total disability is defined by statute as a percentage of permanent disability, i.e., 100 

percent. (§§ 4660, subds. (a), (d), 4452.5, subd. (a).) This definition of permanent total 

disability applies to the division in which section 4660 appears and was added in 1973

(predating the 2004 amendment to section 4660). (§ 4452.5; Stats. 1973, ch. 1023 § 1.) 

We presume the Legislature, when amending section 4660, was aware of existing related 

laws and intended to maintain a consistent body of statutes on the same subject matter. 

(People v. Vessell (1995) 36 Cal.App.4th 285, 289.)

The 2005 Schedule (a formal administrative rule), implementing the requirements 

in section 4660, also identifies permanent total disability as a percentage of disability: 

“A permanent disability rating can range from 0% to 100%. Zero percent signifies no 

reduction of earning capacity, while 100% represents permanent total disability. A rating 

between 0% and 100% represents permanent partial disability.” (2005 Schedule, p. 1-2.) 

A “final permanent disability rating” is obtained by going through the steps outlined in 

the 2005 Schedule. (2005 Schedule, pp. 1-2-1-16.)

Importantly, an employee can obtain a disability rating of 100 percent under 

section 4660.10 “[T]he final overall permanent disability rating percentage for a single 

 

regard, and to maintain as much uniformity as possible, the Legislature has authorized it 

to adopt a schedule for the determination of percentages of permanent disability. 

[Citation.] It is therein provided that, ‘The commission may prepare, adopt and from 

time to time amend . . .’ such a schedule and that it shall be ‘prima facie evidence’ of the 

percentage of disability to be attributed to each injury covered by the schedule.” 

(Vincent, at p. 681.) While the statutes have been amended since 1955, their 

interrelationship has not changed.

10 We posed the question, whether an applicant can obtain a 100 percent permanent 

disability rating under section 4660, to the parties during oral argument. While counsel 

for the Board and the California Applicants’ Attorneys Association conceded that an 

applicant can obtain a permanent total disability rating under section 4660 (although it 

would be difficult to do so), Fitzpatrick’s counsel argued section 4660 “does not get to 
15

impairment” is shown “on the age adjustment table,” which contains a 100 percent 

disability rating. (2005 Schedule, pp. 1-9, 6-5.) For combined impairments or 

disabilities, the Chart also contains over 50 combined ratings of 100 percent. (2005 

Schedule, pp. 8-1, 8-3-8-4.) We further note the scheduled rating under section 4660 is 

rebuttable, which gives an applicant the opportunity to present evidence supporting a 100 

percent disability rating when the scheduled rating is less. 

In Ogilvie, the court addressed “ ‘whether, in light of the amendments to 

section 4660 enacted in Senate Bill No. 899 (2003-2004 Reg. Sess.), it is permissible to 

depart from a scheduled rating on the basis of vocational expert opinion that an employee 

has a greater loss of future earning capacity than reflected in a scheduled rating.’ 

[Citation.] Giving consideration to the purpose behind and the language of the 

amendments, the Ogilvie court answered this question with a qualified ‘yes.’ It held that 

there are three permissible methods by which the scheduled rating could be rebutted.” 

(Contra Costa County v. Workers’ Comp. Appeals Bd., supra, 240 Cal.App.4th at p. 751.)

“First, the court concluded that the Legislature left unchanged the case law 

allowing ‘the schedule to be rebutted when a party can show a factual error in the 

application of a formula or the preparation of the schedule.’ [Citation.] Second, the 

Legislature also left intact the cases, including [LeBoeuf v. Workers’ Comp. Appeals Bd.

(1983) 34 Cal.3d 234], recognizing ‘that a scheduled rating has been effectively rebutted 

. . . when the injury to the employee impairs his or her rehabilitation, and for that reason, 

the employee’s diminished future earning capacity is greater than reflected in the 

employee’s scheduled rating.’ [Citation.] The court interpreted LeBoeuf and its progeny 

as limited in application ‘to cases where the employee’s diminished future earnings are 

directly attributable to the employee’s work-related injury, and not due to nonindustrial 

 

total permanent disability” and “by definition and review of the section shows that it only 

goes to 99 percent.” As we explain, Fitzpatrick’s counsel is mistaken. 
16

factors.’ [Citation.] Third and finally, the court held ‘[a] scheduled rating may be 

rebutted when a claimant can demonstrate that the nature or severity of the claimant’s 

injury is not captured within the sampling of disabled workers that was used to compute 

the adjustment factor.’ ” (Contra Costa County v. Workers’ Comp. Appeals Bd., supra, 

240 Cal.App.4th at p. 751.)

Accordingly, by proceeding under section 4660, Fitzpatrick would have had the 

opportunity to rebut the 99 percent scheduled disability rating to show the appropriate 

rating is permanent total disability.11 That it is difficult or onerous to obtain a 100 

percent rating under section 4660 or through rebuttal of the scheduled rating does not 

affect our analysis. Such policy considerations are left to the Legislature; we interpret 

and apply the law as provided in the statutes.

Our interpretation of sections 4660 and 4662, subdivision (b), is squarely at odds 

with the Board panel’s interpretation of those statutes in Jaramillo (on which the 

administrative law judge and the Board relied in this case), in which the panel stated “in 

contrast to Labor Code § 4662, which applies to [permanent total disability], Labor Code 

§ 4660 addresses partial disability, i.e. ‘the percentages of permanent disability.’ ”12 

(Jaramillo, supra, 77 Cal.Comp.Cases at p. 447.) We thus disapprove of Jaramillo with 

respect to its analysis on this issue, and annul the Board’s Opinion for the same reason.

13

 

 

11 We note that, although not relied upon by the administrative law judge or the 

Board, a vocational evaluator did submit a report in this case.

12 While courts permit citation of California Compensation Cases and occasionally 

cite them in published opinions, such writ-denied summaries of decisions by the Board 

have no stare decisis effect and we are not bound by them. (Parker v. Workers’ Comp. 

Appeals Bd. (1992) 9 Cal.App.4th 1636, 1646; Wings West Airlines v. Workers’ Comp. 

Appeals Bd. (1986) 187 Cal.App.3d 1047, 1053, fn. 4.)

13 We asked Fitzpatrick’s counsel during oral argument to what extent the outcome 

of this case depended on us accepting the interpretation of sections 4660 and 4662 in

Jaramillo. Although the administrative law judge and the Board relied on the statutory 
17

To limit section 4660’s application to permanent partial disability only, as proposed in 

Jaramillo and the Board’s Opinion, we would have to add or read the word “partial” or 

other words excluding permanent total disability into the statute. We decline to do so. 

(Code Civ. Proc., § 1858 [we do not insert what has been omitted or omit what has been 

inserted into a statute].) If the Legislature intended to exclude permanent total disability 

ratings from the requirements of section 4660, it would have said so. (Cf. Repass v. 

Workers’ Comp. Div. (W.Va. 2002) 212 W.Va. 86, 95 [West Virginia statute states “the 

degree of permanent disability other than permanent total disability shall be determined 

exclusively by the degree of whole body medical impairment that a claimant has 

suffered” per the Guides], italics added.)

The Jaramillo panel’s reliance on sections 4658, subdivision (d), and 4659, 

subdivision (b), is also unavailing. (Jaramillo, supra, 77 Cal.Comp.Cases at p. 447.) 

Section 4658, subdivision (d), provides disability payment computations for injuries 

depending on “the percentage of disability to total disability” up to 99.75 percent, while 

section 4659, subdivision (b), provides that “[i]f the permanent disability is total, the 

indemnity . . . shall be paid during the remainder of life.” The Jaramillo panel stated 

these “separate sections for computing disability payments in cases involving partial and 

total disability confirms that there is a meaningful difference between disabilities that are 

 

interpretation in Jaramillo, and Fitzpatrick argued in favor of Jaramillo’s reasoning in his

briefing, Fitzpatrick’s counsel responded that Jaramillo was inapplicable to the outcome 

of this case because the permanent total disability finding was based on the medical 

information introduced. The Board’s counsel also attempted to distinguish Jaramillo, 

stating: “In this case there was never a stipulation as to a rating of the disability. This is 

unlike the Jaramillo or Anaya cases or other cases [unintelligible] Ogilvie. There the 

parties stipulated to what the scheduled rating would be. That . . . there was no such 

stipulation here.” Nothing in Jaramillo indicates the parties stipulated to the rating of 

disability. Nor do we understand how the Board seeks to distinguish Jaramillo on such 

grounds when the administrative law judge and the Board in this case relied on Jaramillo

for its discussion of “the different paths” provided by sections 4660 and 4662, i.e., the 

statutory interpretation set forth in Jaramillo with which we disagree. 
18

a percentage of total disability and those that are total.” (Jaramillo, at p. 447.) These 

statutes, however, only provide different methods for calculating disability payments

based on the final permanent disability rating; they do not inform the process for reaching 

the final permanent disability rating finding. (See Ogilvie v. Workers’ Comp. Appeals 

Bd., supra, 197 Cal.App.4th at p. 1270 [“ ‘Permanent disability payments are calculated 

by first expressing the degree of permanent disability as a percentage and then converting 

that percentage into an award based on a table’ ”], italics added.)

We further see no basis for concluding section 4662, subdivision (b), provides a 

second independent path to permanent total disability findings separate from section 

4660. Section 4660 is mandatory. There is nothing ambiguous or unclear in section 

4660’s directive that “[i]n determining the percentages of permanent disability, account 

shall be taken of the nature of the physical injury or disfigurement, the occupation of the 

injured employee, and his or her age at the time of the injury, consideration being given 

to an employee’s diminished future earning capacity” and the 2005 Schedule “shall be 

prima facie evidence of the percentage of permanent disability to be attributed to each

injury covered by the schedule.” (§§ 4660, subds. (a), (c), italics added, 15 [“ ‘[s]hall’ is 

mandatory and ‘may’ is permissive”].)

Moreover, our interpretation harmonizes provisions relating to the same subject 

matter and gives effect to the Legislature’s intent to promote “consistency, uniformity, 

and objectivity in the overall process of determining disability across individuals.” 

(Milpitas Unified School Dist. v. Workers’ Comp. Appeals Bd., supra, 187 Cal.App.4th at 

p. 823.) Our interpretation “remain[s] loyal to the Legislature’s design to provide a 

system that is objective and uniform in application.” (Ogilvie v. Workers’ Comp. Appeals 

Bd., supra, 197 Cal.App.4th at p. 1273; see Day v. City of Fontana (2011) 25 Cal.4th 

268, 272 [statute should be interpreted with the aim of “ ‘ “promoting rather than 

defeating” ’ ” its purpose].) The Board’s interpretation and approach would “return us to 

the ad hoc decisionmaking that prevailed prior to 2004” with regard to permanent 
19

disability findings, which is exactly what the Legislature sought to avoid in enacting the 

amendments. (Contra Costa County v. Workers’ Comp. Appeals Bd., supra, 240 

Cal.App.4th at p. 761.) It would allow an administrative law judge to make a subjective 

determination that may lead to inconsistent and nonuniform permanent disability ratings 

with respect to the most expensive claims under our workers’ compensation framework. 

Such a result cannot be squared with the Legislature’s intent.

While we acknowledge section 3202 requires us to liberally construe the workers’

compensation law in favor of the injured worker, it “ ‘cannot supplant the intent of the 

Legislature as expressed in a particular statute.’ [Citation.] If the Legislature’s intent 

appears from the language and context of the relevant statutory provisions, then we must 

effectuate that intent . . . .” (Kopping v. Workers’ Comp. Appeals Bd. (2006) 142 

Cal.App.4th 1099, 1106.) We do so here.

III

We Do Not Consider The Board’s New Theory On Appeal

The Board argues “[n]either the Guides nor the [2005 Schedule] require use of the 

[Chart] to combine multiple disability values” and “the Guides and [2005 Schedule] 

recognize that multiple permanent disability percentages should be combined in the way 

that results in a more accurate rating, and the conclusions of the examining physician are 

key to reaching an accurate result.” The Department argues this new theory should be 

rejected on appeal because neither the administrative law judge nor the Board raised or 

considered this theory in finding and awarding permanent total disability, and, even if we 

did consider the argument, there is insufficient evidence in the record to support the 

Opinion on such grounds. 

Principles of fairness generally militate against allowing a litigant to change his or 

her position on appeal. (Brown v. Boren (1999) 74 Cal.App.4th 1303, 1316; accord, e.g., 

City of Merced v. American Motorists Ins. Co. (2005) 126 Cal.App.4th 1316, 1327.) 

There are exceptions to this rule, including where a new theory pertains only to questions 
20

of law based on undisputed facts. (Sheller v. Superior Court (2008) 158 Cal.App.4th 

1697, 1709.) “[A]ppellate courts are most likely to consider an issue involving 

undisputed facts for the first time on appeal where the issue involves important questions 

of public policy or public concern.” (Duran v. Obesity Research Institute, LLC (2016) 1 

Cal.App.5th 635, 646.) But even then, whether we will entertain a new theory raised for 

the first time on appeal is strictly a matter of discretion. (See Hussey-Head v. World 

Savings & Loan Assn. (2003) 111 Cal.App.4th 773, 783, fn. 7.)

We decline to address the Board’s contention because, even if we were to agree 

with the Board regarding its interpretation of the 2005 Schedule (which we do not 

decide), it would not change the outcome of this case. The permanent total disability 

finding and award must be supported by substantial evidence. (§ 5952, subd. (d); Place 

v. Workers’ Comp. Appeals Bd. (1970) 3 Cal.3d 372, 377-378.) While the Board argues 

that the conclusions of the examining physician may support use of the additive method 

to combine multiple disability values, the Board points to no evidence that addition of the 

disability values would result in a “more accurate rating” than the combined value under 

the Chart in this case, as it contends. Accordingly, even if the Board’s theory proved 

plausible, there would be insufficient evidence to affirm the finding and award on that 

theory.14 

 

14 Although we do not consider the Board’s new theory, we would be remiss in 

failing to comment on the fact that the Board attempted to support its position by relying 

on the Schedule for Rating Permanent Disabilities dated April 1997 (1997 Schedule), 

relying on language not existent in the 2005 Schedule, and cases predating the 2004 

legislative amendments and the 2005 Schedule for the proposition that “[j]udicial 

decisions agreed that combining factors of disability by addition was appropriate if it 

provided a more valid measure, and it was expected that the [Board] would take into 

account the conclusions of the examining physician and would exercise sound discretion 

in rating permanent disability.” The 2005 Schedule differs substantially from the 1997 

Schedule, and appropriately so given the 2004 amendments and the Legislature’s 

directive.
21

DISPOSITION

The Board’s Opinion after reconsideration is annulled and the matter is remanded 

to the Board for further proceedings consistent with our opinion. Each party to bear its 

own costs. (Cal. Rules of Court, rule 8.493(a)(1)(B).)

/s/ 

Robie, J.

We concur:

/s/ 

Hull, Acting P. J.

/s/ 

Mauro, J.