As we are all now supposed to know, using the new Permanent Disability Rating Schedule (which applicants generally don't want and defendants do) is supposed to happen either (a) when the injury occurs before January 1, 2005 and a treating report indicating the existence of PD or "comprehensive med-legal report" hasn't been generated by then, or (b) when the employer isn't required to give the worker a Section 4061 notice (regarding what happens after temporary disability).
In this case, the temporary disability payments began before January 1, 2005 but ended after. The defense therefore sent the required LC 4061 notice after January 1, 2005 and argued (with a seeming straight face) that the new PDRS should be used because the notice wasn't technically required before January 1, 2005 (since TD was still being paid).
The applicant argued so what? The defense's "duty" to send out the LC 4061 notice still arose well before January 1, 2005 (when TD started in 2004). They just didn't physically have to send out the notice until 2005 and, thus, the exception for using the old PDRS for a pre-2005 injury applied.
A bare majority of Commissioners agreed with applicant's position, ruling that even though the actual notice itself didn't need to be "provided" under the statute under TD stopped in July 2005, the duty to provide that notice arose in 2004 when TD started.
Thus, the old Permanent Disability Rating Schedule was to be used.
The case is Josh Pendergrass v. Duggan Plumbing;SCIF
To read the full decision,
PLEASE CLICK HERE.*
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