Minor schism follows newest Labor Code Section 4660(d) opinion

Thursday, January 31, 2008 | 0

Yet another decision from the Court of Appeals, this time the 2nd District, has upheld the WCAB's interpretation of Labor Code Section 4660(d) in Pendergrass II, rejecting a WCAB decision that issue prior to that en banc decision applying the 1997 Permanent Disability Rating Schedule (PDRS) based on the commencement of temporary total disability (TTD) before Jan. 1, 2005. The case is Zenith Ins. Co. v. WCAB.

This Court recently also issued a similar decision in Genlyte Group et al. v. WCAB. (Jan. 3, 2008, B198100).  While the
principle issue follows the rational of the unanimous case law previous to the opinion, the Court does confirm its holding in Genlyte that the existence of permanent disability is not contingent upon a finding that the injured workers' condition was also permanent and stationary. In so holding, this court creates a schism in authority with the 4th Appellate District's holding in Vera v. WCAB, 154 Cal.App.4th 996.

In Vera, the Court had equated permanent disability with permanent and stationary status, holding that both were required to trigger use of the 1997 PDRS. This court again rejected that requirement and remanded the case back to the WCAB for a determination as to whether the reports of the treating physician constituted "substantial evidence" of the existence of permanent disability.

"Moreover, section 4660(d) is worded broadly to include any comprehensive medical-legal or treating physician report "indicating the existence of permanent disability." The language is not limited to what the Vera court describes as the typical final or  permanent and stationary report, in which the extent of ratable permanent disability is reported. In an appropriate case, a physician is not precluded from reporting that permanent disability exists prior to permanent and stationary status or the extent of ratable
permanent disability is known..."

This decision, as in Genlyte, did also require that any such opinion must be substantial evidence when considered in light the entire record:

"...We conclude that determining whether Dr. Fenton's Dec. 28, 2004 report is substantial evidence "indicating the existence of permanent disability" under Section 4660(d),... should be based on the entire record..."

The court noted neither the workers' compensation judge nor the two of the three WCAB commissioners considered whether Dr. Fenton's reports met the substantial evidence requirement and therefore the matter was remanded to the board to be reconsidered with the correct standard being considered. The court also justified its remand by commenting on the WCAB's substantial expertise and experience in interpreting medical reports as being a crucial element of arriving at a determination of this issue.

Until we see how the WCAB addresses the issue of what kind of report, or combination of reports, meets the substantial evidence standard, we are left in something of a quandary regarding which case law to follow. We have four other appellate districts that could conceivably side with one district or the other, or possibly come up with their own interpretations.

The good news is that the number of cases where this difference of opinion is going to have in impact on case values is diminishing daily as we continue to resolve older cases usually with some kind of compromise based on the relative values of these cases.  There are still pending in the appellate courts a number of cases where petitions for writ of review have been granted. Conceivably some of these cases might shed some light on how other districts view this issue. For now, we know the law in the 4th and 2nd
districts and the courts in the other appellate districts are free to choose their own way.

In the absence of a definitive holding from the Supreme Court, whether additional cases on this issue will be clarifying or confusing may depend as much on ones geography as anything else.
 
To read the Zenith case, click the case title in the sidebar at right.