A Workers’ Compensation Appeals Board en banc decision announced Friday overturns a 30-year-old precedent that provided an injured worker who sustains two separate injuries to the same part of the body, which become permanent and stationary at the same time, is entitled to receive a combined award of permanent disability.
The WCAB, in a 4-1 ruling, said passage of Senate Bill 899 undermines the reasoning that led the Supreme Court to establish the so-called “Wilkinson rule” in 1977. The split decision came in Diane Benson v. Permanente Medical Group (Athens Administrators), Nos. OAK 0297895 and OAK 0326228, 12/13/2007.
“We hold that the rule in Wilkinson is not consistent with the new requirement that apportionment be based on causation and, therefore, Wilkinson is no longer generally applicable,” the WCAB said in its opinion. “Rather, we now must determine and apportion to the cause of disability for each industrial injury. Therefore, all potential causes of disability – whether from a current industrial injury, a prior or subsequent industrial injury, or a prior or subsequent non-industrial injury or condition – must be taken into consideration.”
Benson, a file clerk for Permanente, felt a pain in her neck on June 3, 2003, while pulling out a plastic bin to file a medical chart. The condition grew worse and she was placed on temporary total disability on July 15, 2003.
Benson’s treating physician concluded that Benson had suffered two separate injuries. One was a cumulative injury to her neck and the other was the specific injury suffered on June 3, 2003. He assigned 50% of her disability to the cumulative trauma and 50% to the specific injury.
At trial, the workers’ compensation judge assigned a combined award of 62% permanent disability, following Wilkinson.
The WCAB, however, said the provision of SB 899 that requires apportionment for causation also changed the way awards for separate injuries should be calculated. Specifically, the 2004 reform bill repealed former Labor Code Section 4750 and enacted Sections 4663 and 4664.
In addition to requiring apportionment for causation, those code sections require that the apportionment of permanent disability must be determined based on the approximate percentage of the permanent disability that was caused by the direct result of injury and what approximate percentage of the permanent disability was caused by other factors. Employers are liable only for the percentage of permanent disability caused by the injury arising out of and occurring in the course of employment.
“Apportionment based upon causation is generally not consistent with combined awards of permanent disability, where such awards are based solely upon the fact that the injuries became permanent and stationary at the same time,” the WCAB said in its ruling. “In enacting SB 899, the Legislature mandated that each potential cause of disability be considered for each claim of injury.”
Commissioner Ronnie G. Caplane dissented. She said it is presumed when the Legislature enacts a statute that it has in mind existing law and long-established principles.
“The Legislature easily could have stated an intent to invalidate Wilkinson’s long-established principles, but it did not do so,” Caplane wrote in her dissenting opinion.
Moreover, Caplane said nothing in the plain language of Section 4663 prohibits a combined disability award for two injuries that become permanent and stationary at the
same time. Lastly, Caplane said a requirement that workers’ compensation laws be liberally construed in favor of injured workers requires the court to allow the combined award.
Commissioners Janice Jamison Murray and William O'Brien, whose terms ended last month, did not participate in the decision, although they remain on the board until Gov. Arnold Schwarzenegger appoints their replacements.
Defense attorney Richard "Jake" Jacobsmeyer said the WCAB relied heavily on the recent Brodie decision in reaching its conclusion. He said there will likely be resistance from medical doctors, who consider apportionment to be speculative and also expects the decision to be "heavily appealed" by applicants' attorneys.
Sue Borg, president of the California Applicants' Attorneys Association, agreed, noting that injured workers will receive smaller awards if the decision stands.
"This is bad news for injured workers -- terrible news," she said. "And I really think that they got it wrong, and the dissent has it right."
Borg said she's "certain that the issue will go back up to the Court of Appeal and probably to the Supreme Court," and when it does, she said, she expects CAA will be involved in the case.
Friday, December 28, 2007
Monday, October 22, 2007
Summary of Evidence
Appellate Court Orders W.C.A.B. to Provide Summary of Evidence
The Court of Appeals has considered the consequence of the W.C.A.B.’s issuing a decision after Reconsideration without a Summary of Evidence from the Trial Judge and ruled that the Summary of Evidence is a required document and must be completed before the decision on Reconsideration can be properly reviewed. A Summary of Evidence is required pursuant to Labor Code § 5313 and ADR 10566. In this case an arbitrator was used and the same rules apply according to Labor Code § 5272.
This case involves an undercover witness who provided assistance to several law enforcement agencies in Contra Costa County. It was unrebutted that on several occasions the applicant had made drug buys for some officers pursuant to an investigation. Labor Code § 3366 provides that one who assists a police officer at the officer’s request is deemed an employee of the law enforcement agency and entitled to worker’s compensation benefits. There was a factually dispute, resolved against the applicant, regarding the circumstances leading to his being shot in the throat. The applicant claimed he was shot for assisting another officer in a drug related matter. The potential employer deemed the applicant to be a volunteer witness who simply came forward with information on the basis that the applicant had approached an officer and offered to assist rather than being contacted by the police officer.
The parties proceeded to hearing using an independent arbitrator. However that arbitrator failed to provide a Summary of Evidence (the record does not reflect who the hearing officer was or why there was no Summary provided). The W.C.A.B. on reconsideration upheld the denial of compensability for the arbitrator and deemed the Summary of Evidence unnecessary to decide the case.
The Court of Appeals disagreed with the W.C.A.B.’s determination that the Summary was not necessary, holding that the Summary is required to complete the record and that without the information, the decision must be reversed and remanded back to the W.C.A.B. for creation of a Summary of Evidence (which includes the Summary of Testimony) by the arbitrator and the W.C.A.B. is to then review the record again and issue its decision. In doing so the Court rejected the proposal by applicant that the failure to provide the summary of evidence should be deemed fatal to the defendant’s case and the Appellate Court be required to assume the facts as set out in the Petitioner’s brief to be true. The Court held that this standard applies in consideration of pleadings, but not evidence. The Appellate court also rejected several suggestions by defendants that the record was adequately addressed by other information provided by the arbitrator and the W.C.A.B.’s review on Reconsideration.
While not making a determination that the W.C.A.B. should reverse the arbitrator’s decision the Appellate Court did make some comments on the W.C.A.B.’s reasoning in its decision and criticized some of the analysis. Specifically the Appellate Court noted the arbitrator and the W.C.A.B. seemed to be fixated on the applicant’s motivation in offering to assist the police officer in the even that got him injured. The court noted that there is no requirement in the statute for the applicant’s motivation to be considered in the factual pattern. The issue was whether the applicant actually assisted the officer, not why he might have done so. The Appeals Court also rejected the idea that the Police officer must initiate the contact for compensability to attach. The Court deemed that the acceptance of an offer of assistance compelled compensability also.
This case has very limited application other than the principle that the Statement of Evidence is a required document. In the vast majority of hearings, the WCJ provides such a Summary and there is no issue. However where a summary is not prepared, for it is fairly common for the W.C.A.B. on reconsideration to grant the appeal and order a summary to be prepared by the Trial judge. The Board may not have felt that it had similar authority over an arbitrator. Clearly in the mind of the Court of Appeals the W.C.A.B. not only has the authority to require the Summary of Evidence, but the obligation as well.
The case can be located by the following link: Sharareh v. WCAB
The Court of Appeals has considered the consequence of the W.C.A.B.’s issuing a decision after Reconsideration without a Summary of Evidence from the Trial Judge and ruled that the Summary of Evidence is a required document and must be completed before the decision on Reconsideration can be properly reviewed. A Summary of Evidence is required pursuant to Labor Code § 5313 and ADR 10566. In this case an arbitrator was used and the same rules apply according to Labor Code § 5272.
This case involves an undercover witness who provided assistance to several law enforcement agencies in Contra Costa County. It was unrebutted that on several occasions the applicant had made drug buys for some officers pursuant to an investigation. Labor Code § 3366 provides that one who assists a police officer at the officer’s request is deemed an employee of the law enforcement agency and entitled to worker’s compensation benefits. There was a factually dispute, resolved against the applicant, regarding the circumstances leading to his being shot in the throat. The applicant claimed he was shot for assisting another officer in a drug related matter. The potential employer deemed the applicant to be a volunteer witness who simply came forward with information on the basis that the applicant had approached an officer and offered to assist rather than being contacted by the police officer.
The parties proceeded to hearing using an independent arbitrator. However that arbitrator failed to provide a Summary of Evidence (the record does not reflect who the hearing officer was or why there was no Summary provided). The W.C.A.B. on reconsideration upheld the denial of compensability for the arbitrator and deemed the Summary of Evidence unnecessary to decide the case.
The Court of Appeals disagreed with the W.C.A.B.’s determination that the Summary was not necessary, holding that the Summary is required to complete the record and that without the information, the decision must be reversed and remanded back to the W.C.A.B. for creation of a Summary of Evidence (which includes the Summary of Testimony) by the arbitrator and the W.C.A.B. is to then review the record again and issue its decision. In doing so the Court rejected the proposal by applicant that the failure to provide the summary of evidence should be deemed fatal to the defendant’s case and the Appellate Court be required to assume the facts as set out in the Petitioner’s brief to be true. The Court held that this standard applies in consideration of pleadings, but not evidence. The Appellate court also rejected several suggestions by defendants that the record was adequately addressed by other information provided by the arbitrator and the W.C.A.B.’s review on Reconsideration.
While not making a determination that the W.C.A.B. should reverse the arbitrator’s decision the Appellate Court did make some comments on the W.C.A.B.’s reasoning in its decision and criticized some of the analysis. Specifically the Appellate Court noted the arbitrator and the W.C.A.B. seemed to be fixated on the applicant’s motivation in offering to assist the police officer in the even that got him injured. The court noted that there is no requirement in the statute for the applicant’s motivation to be considered in the factual pattern. The issue was whether the applicant actually assisted the officer, not why he might have done so. The Appeals Court also rejected the idea that the Police officer must initiate the contact for compensability to attach. The Court deemed that the acceptance of an offer of assistance compelled compensability also.
This case has very limited application other than the principle that the Statement of Evidence is a required document. In the vast majority of hearings, the WCJ provides such a Summary and there is no issue. However where a summary is not prepared, for it is fairly common for the W.C.A.B. on reconsideration to grant the appeal and order a summary to be prepared by the Trial judge. The Board may not have felt that it had similar authority over an arbitrator. Clearly in the mind of the Court of Appeals the W.C.A.B. not only has the authority to require the Summary of Evidence, but the obligation as well.
The case can be located by the following link: Sharareh v. WCAB
Thursday, October 18, 2007
Governer Signs New Work Comp Legislation
California -- Gov. Signs Bills on TD and 24-Visit Cap; Vetoes Others: Top [10/15/07]
Gov. Arnold Schwarzenegger over the weekend signed bills that extend the two-year cap on temporary disability benefits, lift the hard 24-visit cap on chiropractic treatment and physical therapy and make other mid-course corrections to a workers' compensation system that was sharply redirected by reforms in 2003 and 2004.
Schwarzenegger vetoed measures that would have required hospitals to use power devices to lift patients, increased penalties for misclassifying employees and allowed audiologists to become qualified medical evaluators (QMEs).
The governor's signature on AB 338 by Assemblyman Joe Coto, D-San Jose, puts into law a hard-fought compromise between business and labor. The bill, while still limiting collection of temporary disability benefits to 104 weeks in total, allows injured workers within five years after injury to return to work and cease benefits but take time off later and resume benefits.
Employers and labor also compromised on AB 1073 by Pedro Nava, D-Santa Barbara. As originally introduced, the bill would have lifted the 24-visit cap on chiropractic and physical therapy treatment for patients recovering from surgery.
Schwarzenegger signed an amended version that lifts the cap for post-surgical patients, but gives the Division of Workers' Compensation authority to impose limits through its medical treatment guidelines.
The governor also signed:
* SB 869 by Senator Mark Ridley-Thomas, D-Los Angeles. The bill requires the labor commissioner to establish a data-matching program to identify uninsured employers and target those employers for enforcement.
* AB 812 by Ed Hernandez, D-West Covina. The measure, sought by the insurance industry, allows carriers to increase rates of employers who refuse to turn over records necessary for thorough payroll audits.
* AB 1269 by Ed Hernandez, D-West Covina. The bill directs the Division of Workers' Compensation to increase in-patient fee schedule amounts for Diagnosis Related Groups (DRGs) 504 to 511, regarding hospital treatment of burn victims, after consulting with the Commission on Health and Safety and Workers' Compensation.
Schwarzenegger vetoed:
* SB 557 by Senator Pat Wiggins, D-Santa Rosa, which would have allowed audiologists to become QMEs.
In his veto message, Schwarzenegger said although Wiggins' bill would allow audiologists to issue AME reports, a final diagnosis would still have to be made by a physician.
"This could result in unnecessary delays for injured workers and increased costs to the system by delaying prompt resolution of claims. In addition, the proponents of this measure have not demonstrated an unmet need for evaluating hearing loss in the workers' comp system," the governor said.
* SB 171 by Senate President Don Perata, D-Oakland. The measure would have required hospitals to impose "musculoskeletal injury prevention plans" that must include a "zero lift/safe patient handling policy" that substitutes manual lifting and transferring of patients with powered patient transfer devices, lifting devices, or lift teams.
Schwarzenegger said he had vetoed similar measures in the past that do not give hospitals the flexibility they need to protect worker safety.
* SB 622 by Senator Alex Padilla, D-Pacoima. The bill would have imposed penalties of up to $25,000 on businesses that misclassify employees as independent contractors and exposed employers to civil suits by misclassified employees.
Schwarzenegger adopted language by the California Chamber of Commerce, saying the bill was a "job killer" in his veto message.
"In creating new and redundant exposure to litigation and sanctions, this bill may cause businesses to avoid use of the independent contractor model even where it may be appropriately utilized," the governor said. "This will ultimately contribute to a negative perception of California as an inhospitable business climate."
* SB 906 by George Runner, R-Lancaster. The bill clarifies processing and submission of pharmacy claims and other medical service claims in the workers' compensation system.
"I am concerned that some provisions of this bill may inadvertently undermine existing law," Schwarzengger said in his veto message. "For instance, this bill appears to force health plans that cover medical services later determined to be workers' compensation injuries to accept a loss on their outstanding health plan liens against workers' compensation insurers. In addition, by providing that the changes it makes are declaratory of existing law, this bill would unfairly impact existing liens in the system."
Gov. Arnold Schwarzenegger over the weekend signed bills that extend the two-year cap on temporary disability benefits, lift the hard 24-visit cap on chiropractic treatment and physical therapy and make other mid-course corrections to a workers' compensation system that was sharply redirected by reforms in 2003 and 2004.
Schwarzenegger vetoed measures that would have required hospitals to use power devices to lift patients, increased penalties for misclassifying employees and allowed audiologists to become qualified medical evaluators (QMEs).
The governor's signature on AB 338 by Assemblyman Joe Coto, D-San Jose, puts into law a hard-fought compromise between business and labor. The bill, while still limiting collection of temporary disability benefits to 104 weeks in total, allows injured workers within five years after injury to return to work and cease benefits but take time off later and resume benefits.
Employers and labor also compromised on AB 1073 by Pedro Nava, D-Santa Barbara. As originally introduced, the bill would have lifted the 24-visit cap on chiropractic and physical therapy treatment for patients recovering from surgery.
Schwarzenegger signed an amended version that lifts the cap for post-surgical patients, but gives the Division of Workers' Compensation authority to impose limits through its medical treatment guidelines.
The governor also signed:
* SB 869 by Senator Mark Ridley-Thomas, D-Los Angeles. The bill requires the labor commissioner to establish a data-matching program to identify uninsured employers and target those employers for enforcement.
* AB 812 by Ed Hernandez, D-West Covina. The measure, sought by the insurance industry, allows carriers to increase rates of employers who refuse to turn over records necessary for thorough payroll audits.
* AB 1269 by Ed Hernandez, D-West Covina. The bill directs the Division of Workers' Compensation to increase in-patient fee schedule amounts for Diagnosis Related Groups (DRGs) 504 to 511, regarding hospital treatment of burn victims, after consulting with the Commission on Health and Safety and Workers' Compensation.
Schwarzenegger vetoed:
* SB 557 by Senator Pat Wiggins, D-Santa Rosa, which would have allowed audiologists to become QMEs.
In his veto message, Schwarzenegger said although Wiggins' bill would allow audiologists to issue AME reports, a final diagnosis would still have to be made by a physician.
"This could result in unnecessary delays for injured workers and increased costs to the system by delaying prompt resolution of claims. In addition, the proponents of this measure have not demonstrated an unmet need for evaluating hearing loss in the workers' comp system," the governor said.
* SB 171 by Senate President Don Perata, D-Oakland. The measure would have required hospitals to impose "musculoskeletal injury prevention plans" that must include a "zero lift/safe patient handling policy" that substitutes manual lifting and transferring of patients with powered patient transfer devices, lifting devices, or lift teams.
Schwarzenegger said he had vetoed similar measures in the past that do not give hospitals the flexibility they need to protect worker safety.
* SB 622 by Senator Alex Padilla, D-Pacoima. The bill would have imposed penalties of up to $25,000 on businesses that misclassify employees as independent contractors and exposed employers to civil suits by misclassified employees.
Schwarzenegger adopted language by the California Chamber of Commerce, saying the bill was a "job killer" in his veto message.
"In creating new and redundant exposure to litigation and sanctions, this bill may cause businesses to avoid use of the independent contractor model even where it may be appropriately utilized," the governor said. "This will ultimately contribute to a negative perception of California as an inhospitable business climate."
* SB 906 by George Runner, R-Lancaster. The bill clarifies processing and submission of pharmacy claims and other medical service claims in the workers' compensation system.
"I am concerned that some provisions of this bill may inadvertently undermine existing law," Schwarzengger said in his veto message. "For instance, this bill appears to force health plans that cover medical services later determined to be workers' compensation injuries to accept a loss on their outstanding health plan liens against workers' compensation insurers. In addition, by providing that the changes it makes are declaratory of existing law, this bill would unfairly impact existing liens in the system."
Sunday, October 14, 2007
TTD Rate Changes Effective 1/1/2008
California's maximum temporary total disability (TTD) rate will increase to $916.33 on Jan. 1, the Division of Workers' Compensation announced this week.
The minimum rate of $132.25 will increase to $137.45.
The DWC said the increases mark the second consecutive year that the TTD rate will be affected by a change in the state average weekly wage.
Beginning in 2006, Labor Code section 4453(a)(10) requires the rate for TTD be increased by an amount equal to the percentage increase in the average weekly wage as compared to the prior year. The average weekly wage is defined as the average weekly wage paid to employees covered by unemployment insurance as reported by the U.S. Department of Labor for California for the 12 months ending Mar. 31 in the year preceding the injury.
The California average weekly wage for the 12 months ending March 31, 2007 was $914.60. For the period ending March 31, 2006, the figure was $880.00, amounting to a percentage increase of 3.932%.
Applying this increase to the prior year's maximum benefit of $881.66 brings the 2008 maximum benefit to $916.33, the DWC said.
Source: Calif. DWC
The minimum rate of $132.25 will increase to $137.45.
The DWC said the increases mark the second consecutive year that the TTD rate will be affected by a change in the state average weekly wage.
Beginning in 2006, Labor Code section 4453(a)(10) requires the rate for TTD be increased by an amount equal to the percentage increase in the average weekly wage as compared to the prior year. The average weekly wage is defined as the average weekly wage paid to employees covered by unemployment insurance as reported by the U.S. Department of Labor for California for the 12 months ending Mar. 31 in the year preceding the injury.
The California average weekly wage for the 12 months ending March 31, 2007 was $914.60. For the period ending March 31, 2006, the figure was $880.00, amounting to a percentage increase of 3.932%.
Applying this increase to the prior year's maximum benefit of $881.66 brings the 2008 maximum benefit to $916.33, the DWC said.
Source: Calif. DWC
Monday, August 20, 2007
UR PENALTIES
Penalties Pursuant to UR Enforcement Regulations
· $50,000: Failure to establish a UR plan
· $50,000: Failure to have medical director
· $25,000: Decision outside of scope of practice
· $25,000: Non-physician delays, denies, modifies treatment request
· $15,000: Untimely response to expedited request
· $10,000: Failure to discuss concurrent treatment with the treating physician
· $10,000: Failure to file plan or letter
· $ 5,000: Failure to include elements in plan
· $ 5,000: Failure to file modified plan after material modification within 30 days
· $ 5, 000: Denying treatment because the condition is not in the Medical Treatment Utilization Schedule
· $ 2,000: Failure to respond, non-expedited, concurrent
· $ 1,000: Failure to respond, non-expedited, prospective review
· $ 1,000: No documentation of amended request
· $500: Failure to respond to retrospective request
· $100: Failure to disclose UR criteria or guideline to public
· $50,000: Failure to establish a UR plan
· $50,000: Failure to have medical director
· $25,000: Decision outside of scope of practice
· $25,000: Non-physician delays, denies, modifies treatment request
· $15,000: Untimely response to expedited request
· $10,000: Failure to discuss concurrent treatment with the treating physician
· $10,000: Failure to file plan or letter
· $ 5,000: Failure to include elements in plan
· $ 5,000: Failure to file modified plan after material modification within 30 days
· $ 5, 000: Denying treatment because the condition is not in the Medical Treatment Utilization Schedule
· $ 2,000: Failure to respond, non-expedited, concurrent
· $ 1,000: Failure to respond, non-expedited, prospective review
· $ 1,000: No documentation of amended request
· $500: Failure to respond to retrospective request
· $100: Failure to disclose UR criteria or guideline to public
DWC POSTS UR FAQS FOR CLAIMS ADMIN
Division of Workers' Compensation posts utilization review FAQs for claims administrators on its Web site
The Division of Workers' Compensation (DWC) has posted answers to frequently asked questions (FAQs) about utilization review on its Web site to help claims administrators and others better understand utilization review (UR) rules and processes.
"Our goal is to help everyone understand UR so that injured workers receive the correct treatment at the right time," said DWC acting Administrative Director Carrie Nevans. "We intend to continuously update the page as new questions come in or related case law is decided."
The FAQs are posted on the DWC's UR Web page at http://www.dir.ca.gov/dwc/UR_Main.htm and can also be accessed from the DWC “what's new” page at http://www.dir.ca.gov/dwc/whatsnew.htm.
These FAQs are directed to claims administrators but others may also benefit from reading them. The division has a fact sheet on UR specifically for injured workers posted on its fact sheets and guides page at http://www.dir.ca.gov/dwc/iwguides.html.
Last month the DWC issued an advisory to support the establishment of "UR best practices," which allow claims administrators to approve appropriate levels of care for injured workers at the lowest possible levels within the claims organization, without having to send those requests through a third party process.
UR penalty regulations became final June 7, 2007 and UR rules have been in place since September of 2005. Both sets of regulations can be found at http://www.dir.ca.gov/dwc/DWCrulemaking.html.
The Division of Workers' Compensation (DWC) has posted answers to frequently asked questions (FAQs) about utilization review on its Web site to help claims administrators and others better understand utilization review (UR) rules and processes.
"Our goal is to help everyone understand UR so that injured workers receive the correct treatment at the right time," said DWC acting Administrative Director Carrie Nevans. "We intend to continuously update the page as new questions come in or related case law is decided."
The FAQs are posted on the DWC's UR Web page at http://www.dir.ca.gov/dwc/UR_Main.htm and can also be accessed from the DWC “what's new” page at http://www.dir.ca.gov/dwc/whatsnew.htm.
These FAQs are directed to claims administrators but others may also benefit from reading them. The division has a fact sheet on UR specifically for injured workers posted on its fact sheets and guides page at http://www.dir.ca.gov/dwc/iwguides.html.
Last month the DWC issued an advisory to support the establishment of "UR best practices," which allow claims administrators to approve appropriate levels of care for injured workers at the lowest possible levels within the claims organization, without having to send those requests through a third party process.
UR penalty regulations became final June 7, 2007 and UR rules have been in place since September of 2005. Both sets of regulations can be found at http://www.dir.ca.gov/dwc/DWCrulemaking.html.
Wednesday, July 18, 2007
First PD Payment Doesn't Trigger Notice Duty
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.
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.
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