When I was growing up, I loved to read books, especially horror novels. As any good horror reader knows, Stephen King is one of the best. The novel I enjoyed the most as a teenager was Misery. The story focuses on a writer who sustains severe injuries due to a motor vehicle accident and the writer is “saved” by a crazy fan.
I always found it terrifying the writer did not have the ability to get out of the situation, in part due to him being “practically totally paralyzed”. Recently, the noteworthy panel decision Burr v. The Best Demolition & Recycling Co., Inc., 2018 Cal. Wrk. Comp. P.D. LEXIS was released which brought me right back to the fear I felt when reading Misery.
Essentially, the applicant underwent numerous lumbar spine surgeries. Major complications resulted in applicant being wheelchair bound due to his inability to use his lower extremities. The applicant attorney argued applicant was presumed totally disabled per Labor Code Section 4662(a)(3), which states in part that one shall be conclusively presumed to be total in character if the injury results in finding of “practically total paralysis.” As a surprise to many, the court concluded the applicant did not meet the threshold because he was not a quadriplegic or even close to being a quadriplegic.
However, the court did not completely define “practically total paralysis”. What constitutes “practically total paralysis”? Must the applicant be quadriplegic or only comparable to a quadriplegic?
For example, the applicant sustains injuries which results in severe psychological issues that prevent the applicant from being able to function on any level. The applicant literally cannot move a muscle due to the crippling fear. Does this constitute “practically total paralysis” since the applicant cannot move similar to a quadriplegic?
Another example posed by like-minded thinkers from this case would be severe arthritis, preventing the applicant from being able to move their upper and lower extremities. Does this constitute “practically total paralysis”?
This distinction in thinking is extremely important from a defense standpoint because Labor Code Section 4662 creates a conclusive presumption and case law has stated there is no apportionment for these type of disabilities. The truly terrifying aspect for defendants is the open “Wild West” field the WCAB has left open. If creative, applicant attorneys make the right arguments to the right judges, we could all be left in Misery!
Hayden M. Beach is a workers’ compensation defense attorney and Assistant Managing Attorney at Bradford & Barthel’s Woodland Hills location. Mr. Beach can be contacted at email@example.com or (818) 654-0411.
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