Original Labor Code Section 4661 WCAB Panel Decision Upheld

Saturday, September 8, 2007 | 0

By Jake Jacobsmeyer

One of the first cases from the WCAB to issue on the old vs. new PDRS schedule controversy, almost two years ago, has wound its way through the appellate courts and is now the sixth published decision and 13th total in the line of cases ruling on theses issues, not including the WCAB en banc decisions in Pendergrass II and Baglione II. The Vera v. S.C.I.F. WCAB panel decision originally that a report describing permanent disability but also indicating the injured worker was not actually permanent and stationary did not constitute substantial evidence of the existence of permanent disability at that time. In that decision the WCAB had reversed a workers' compensation judge who awarded permanent disability using the old permanent disability rating schedule based on a report describing the existence of permanent disability but also advising that the injured worker is not yet permanent and stationary.

Applicant initially filed a Petition for Reconsideration from that WCAB decision, but was denied using the same rational as the original opinion. Applicant took the issue up to the appellate level arguing that the treating physician's report describing permanent disability (even though not permanent and stationary) still constituted evidence of the existence of permanent disability for purposes of the application of the old permanent disability rating schedule.

Applicant also argued the use of the old schedule on the basis of the commencement of temporary total disability prior to Jan. 1, 2005, the same argument as had been presented in now on multiple occasions to different appellate courts, all with uniform results rejecting the argument.

The 4th Appellate District issued its decision approximately three weeks ago as an unpublished decision. On Aug. 31, the court ordered publication of its decision it in now falls into the rapidly developing line of cases limiting the use of the old permanent disability rating schedule to the specific exceptions in Labor Code Section 4061(d).

While this case is similar to the holdings in the other five published cases in this line, there is some important language in the holding that adds to our understanding of when the old schedule does not apply. This case has particular utility in those cases where reports were generated prior to Jan. 1, 2005, with the intent to trigger use of the old permanent disability rating schedule. This case makes it clear that such reports are not to be considered substantial evidence of the existence of permanent disability:

"As we will explain, we conclude that the treating physician's report must indicate that the claimant has a ratable disability that has reached permanent and stationary status, and that in enacting section 4660, subdivision (d), the Legislature was using the term 'permanent disability' as another way of referring to the status of having a ratable disability that is 'permanent and stationary.'"

By making it a condition of the description of permanent disability that the injured workers condition be permanent and stationary, the court has effectively rendered irrelevant all of those one line or check box reports in response to applicant attorney's requests for comments on permanent disability. None of the prior cases had addressed this issue at least not a definitively as this decision.

The court also had little difficulty in disposing of the temporary disability commencement issue, adopting the same rational as the WCAB in Pendergrass II and the other appellate cases that have addressed this issue.

The case is Vera v. WCAB and can be located by clicking on the case name at the side bar on right.

Attorney Richard "Jake" Jacobsmeyer is a partner in the firm Shaw, Jacobsmeyer, Crain, Claffey & Nix and can be reached at jakejacobsmeyer@shawlaw.org.

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