Applicant sustained physical and psychological injuries on February 24, 2004. His TD ended in 2006 after 104 weeks had been paid, was later deemed MMI orthopedically on December 13, 2006, but was not MMI psychologically until over five years later on June 17, 2015 at which time the applicant was considered 100% disabled. The question raised in Vertis Communications v. WCAB (Garietz) 2019 Cal. Wrk. Comp. LEXIS 28 is whether the COLA increases on PD begin in 2007 (after MMI orthopedically) or in 2016 (after MMI psychologically and deemed 100%)?

Labor Code Section 4659(c) provides that COLA increases begin the January 1st after becoming entitled to a life pension or 100% PPD benefits. This would imply that in this case the COLA increases should begin January 1, 2016 since he was first deemed 100% in 2015. However, the WCAB held that COLA increases could apply retroactively once the applicant is entitled to any PD, whether due to being MMI or because TD was terminated under the 104 week cap under Labor Code Section 4656(c). Therefore, in this case the COLA increases applied retroactively starting January 1, 2007 because the applicant's TD ended and/or was deemed MMI physically in 2006.

[COMMENT: The WCAB stated their decision was consistent with the holdings in Baker (2011) and Brower (2014) notwithstanding the plain wording of Labor Code Section 4659 which discusses COLA applying only upon the applicant becoming "entitled to receive a life pension or total permanent disability indemnity."]