California -- Calif. 1st: First PD Payment Doesn't Trigger Notice Duty: Top [07/16/07]
The California appellate court in San Francisco issued another ruling Friday that the last -- not the first -- permanent disability payment triggers an employer's duty to provide a Section 4061 notice.
The decision essentially mandates the more meager benefits awarded under the 2005 Permanent Disability Rating Schedule for workers who were receiving temporary disability when Senate Bill 899 was signed into law on April 19, 2004.
In Minatta Transportation v. Workers' Compensation Appeals Board, A117143, 07/13/2007, the 1st District Court of Appeals, Division 4 decided that the language in Labor Code Section 4660 leaves no room for interpretation after being amended by Senate Bill 899.
"But the WCAB's interpretation of section 4061 is simply untenable in light of the section's direction to provide the notice with the last payment of temporary disability," the court wrote. The decision was not published.
Section 4061 reads that the 2005 Permanent Disability Rating Schedule applies retrospectively if before Jan. 1, 2005 "there has been either no comprehensive medical-legal 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 Section 4061 notice informs the worker of the employer's planned dispute of permanent disability.
Paul Lanning sustained an industrial injury on Oct. 5, 2004, while working for Minatta Transportation. He received temporary disability benefits until July 2005, when his condition became permanent and stationary.
Minatta mailed the required Section 4061 notice to Lanning after the last temporary disability payment was made in July 2005.
The workers' compensation judge initially used the new disability rating schedule. Lanning petitioned for reconsideration, and the WCJ recalculated the award using the disability rating schedule in effect when Lanning's injury occurred in 2004. The WCAB upheld the judge's revised decision.
"Because there was no medical report indicating permanent disability before Jan. 1, 2005, and because Minatta was not required to mail a section 4061 notice before that date, the AMA rating schedule applies to Lanning's case," the appellate court wrote.
Both the 1st District's Division 4 and Division 3 have issued similar opinions in other cases in the past two months.
The appellate court annulled the award of permanent disability indemnity and remanded the case for recalculation using the 2005 permanent disability schedule.