It Depends on What the Definition of Is, Is...

Saturday, June 4, 2005 | 0

By Charles R. Wear, Attorney at Law Words are important. What they mean is even more important, especially when it comes to interpreting the meaning of a statute. The new permanent disability schedule will cut permanent disability awards to injured workers. Applicant attorneys will try to have their clients cases decided using the old schedule and defense attorneys will attempt to have cases decided under the new schedule.

There have been reports that California's Administrative Director of the Division of Workers' Compensation, Andrea Hoch has instructed disability evaluators to rate reports regardless of date of injury under the new schedule where there has not been a pre-January 1, 2005 permanent and stationary report by either a QME or an AME or a treating physician, or where the employer-mandated notice has not been issued under Labor Code Section 4061, notifying the injured worker of the termination of temporary disability benefits.

Regardless of that directive, applicant and defense attorneys alike should examine the statutes that determine which cases will be evaluated under which schedule. It should be noted that past revisions of the permanent disability schedule have never been applied retroactively to pending cases.

The applicable statute is Labor Code Section 4660 (d) which states: "The schedule shall promote consistency, uniformity, and objectivity. The schedule and any amendment thereto or revision thereof shall apply prospectively and shall apply to and govern only those permanent disabilities that result from compensable injuries received or occurring on and after the effective date of the schedule, amendment or revision, as the fact may be." The new schedule was adopted on January 1, 2005. It applies to all compensable injuries after that date. There are lawsuits pending to get the schedule set aside. Unless that happens, all claims arising after January 1, 2005 will be under the new schedule.

However, here is where the situation gets muddy. Section 4660 (d) goes on to say: "For compensable claims arising before January 1, 2005, the schedule as revised pursuant to changes made in legislation enacted during the 2003-2004 Regular and Extraordinary Sessions shall apply to the determination of permanent disabilities when there has been either no comprehensive medical report or no report by a treating physician indicating the existence of permanent disability, or when the employer is not required to provide the notice required by Section 4061 to the injured worker."

The Workers' Compensation Appeals Board and the Courts of Appeal interpret statutes according to recognized principles. These are the principles that can be found by reading Board and Appeals decisions:

* In construing a statute, the Appeals Board's fundamental purpose is to determine and effectuate the Legislature's intent.
* Thus, the WCAB's first task is to look to the language of the statute itself. The best indicator of legislative intent is the clear, unambiguous, and plain meaning of the statutory language.
* When the statutory language is clear and unambiguous, there is no room for interpretation and the WCAB must simply enforce the statute according to its plain terms.
* When construing any particular statutory provision, however, [the WCAB] may also consider it in light of the entire statutory scheme of which it is part and harmonize it with related statutes, to the extent possible.

Let's address the exceptions to inclusion in the new schedule one at a time:

1. "When there has been...no comprehensive medical report."

What is a comprehensive medical report? The term comprehensive medical evaluation is used in Labor Code Sections 4060, 4061, and 4062 to describe reports that deal with compensability (4060), disputes concerning medical treatment (4062), and disputes concerning permanent disability (4061). In addition parties may obtain reports under Labor Code Section 4050 and 4064(d). Furthermore, treating physicians are required to render reports pursuant to the regulations contained in section 9785. There is no indication that any of these kinds of reports is "not comprehensive". Particularly, a narrative report that contains a history, medical examination, and sections addressing disability status, causation and treatment would likely be considered to be "comprehensive."

It might be important to note what the code section does not say. It does not say a comprehensive medical evaluation, a comprehensive medical-legal evaluation, or a permanent and stationary report. Applicant attorneys will want to argue that if "any" medical report has been issued, either by a treating physician, a consulting physician or under Labor Code Sections 4050, 4060, 4061, 4062, or 4064(d) that the claim will be evaluated under the old schedule.

2. "No report by a treating physician indicating the existence of permanent disability."

Prior to December 31, 2004 a number of treating physicians issued one paragraph reports indicating the "existence of permanent disability." Will these reports be sufficient? Defense attorneys will argue that they are not because they do not address the "factors of permanent disability." However, applicant attorneys will want to examine the medical examinations contained in narrative reports by the treating physicians. They will look for grip loss measurements, carpal tunnel tests, EMGs and MRIs that show objective injury. They will look for loss of range of motion. All of these "objective" factors of disability that may be contained in treating physician reports would indicate the "existence of permanent disability" and cause the claim to be evaluated under the old schedule. Once again, it is important to note what the code section does not say. It does not say "a permanent and stationary report addressing all of the factors of disability has been issued by the treating physician."

3. "When the employer is not required to provide the notice required by Section 4061 to the injured worker."

The notice referred to in this sentence is to be sent "together with the last payment of temporary disability indemnity [...] in a form prescribed by the administrative director...provide the employee one of the following [notices]..."

It is clear that employers are required to send these notices in all cases in which temporary disability has been paid. The only cases which are exempt from these notices would be cases that are denied or where there has not been a period of temporary disability. Once again, it is important to note what the code section does not say. It does not say "when the employer has been required to provide the notice..." or "when the employer would have been required to provide the notice...".

I am sure that this issue will have greater significance as claims that are for injury dates prior to January 1, 2005 are reaching resolution. At some point the Appeals Board and the Courts of Appeal may have to decide what the definition of "is" is.

Charles R. Wear is an attorney in the workers' compensation practice of Perona, Langer, Beck, Lallande & Serbin in Long Beach, CA. He has been practicing workers' compensation, mainly representing applicants, since 1990. He also comments on workers' compensation at http://calworkerscomp.info.

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