Just when you thought the issue of when the old rating schedule can be used had been resolved once and for all (if not completely beaten to death by opinion after opinion)...
BUT WAIT, THERE'S MORE!
Enter Genlyte Group v. WCAB (Zavala), a certified-for-publication decision just decided by the Second District Court of Appeal.
This opinion holds that having a comprehensive medical-legal or treater's report which evidences permanent and stationary status prior to 2005 is NOT - we repeat, NOT - specifically necessary in order to be able to use the 1997 rating schedule!
The Court relied heavily on the "liberal construction" mandate of Labor Code Section 3202 in concluding that there is nothing specifically in Section 4660(d) which requires that an injured worker be deemed permanent and stationary prior to 2005 for the exception for allowing the use of the old rating schedule to apply.
The facts of the case:
In several reports written prior to 2005, the treating doctor wrote:
"It is my opinion that permanent disability exists with respect to the patient's bilateral shoulder and bilateral upper extremity injuries, however, I will further determine the extent of permanent disability after further evaluations of the patient's condition"
The doctor didn't actually describe the level of permanent disability until well into 2005.
Also before 2005, the defense's QME issued a report which included the following comments:
"The patient was a picture of evolution with her upper extremity problems just getting significantly worse over time... Certainly at this point, the patient is not permanent and stationary [and] . . . remains temporarily totally disabled pending her additional surgery."
This doctor, as well, didn't issue an actual permanent and stationary report until 2005.
At the trial level, the WCJ ruled that the old rating schedule applied because the above-referenced reports showed the existence of permanent disability prior to 2005.
On reconsideration, the employer contended the new rating schedule should have been used because the comprehensive medical-legal report indicated the applicant was not permanent and stationary before 2005 and, although permanent disability was expected, it did not currently exist as expressly required to fall within this exception in section 4660(d).
The Board affirmed the WCJ - that the old rating scheduled applied - but based its decision on the first en banc Baglione decision.
On appeal, the appellate court first dispensed with the Baglione issue as basically a red herring. It concluded that Baglione "II" established that it was irrelevant whether the report was a "comprehensive medical-legal" or treater's report. Either required that the existence of permanent disability be shown before the 4660(d) exception for using the old rating schedule applied.
So the issue really came down to whether the Section 4660(d) exception requires that a pre-2005 report show that a permanent and stationary status existed prior to 2005, or merely whether permament disability existed prior to 2005.
The Court did note that the Vera case had ruled that actual "permanent and stationary status" must exist prior to 2005 in order for the exception to apply. The Vera court had based this conclusion on the fact that the terms "permanent disability" and "permanent and stationary status" were used interchangeably in administrative rules.
Disagreeing with this argument, the Court held that the liberal construction mandate required that the actual language of Section 4660(d) be interpreted to mean that a mere showing that permanent disability exists (regardless of when the P&S date ultimately occurs), or the language of that subsection of the statute would have otherwise made this distinction more clear!
"[The employer's] argument and the Vera court's conclusion miss the mark: The Legislature has repeatedly demonstrated its ability to specify "permanent and stationary status" when that is what it intends. (See, e.g., §§ 4658, subd. (d)(2) [providing for increase or decrease of permanent disability indemnity depending on whether employer offers injured employee regular, modified or alternative work "within 60 days of a disability becoming permanent and stationary"]; 4061, subd. (a)(2) [specifying required notice upon last payment of temporary disability indemnity when amount of permanent disability indemnity payable cannot be determined "because the employee's medical condition is not yet permanent and stationary"].)
"It did not do so in section 4660(d)...
"Recognizing permanent disability may exist before permanent and stationary status has been reached under the statutory scheme, moreover, is fully consistent with existing case law."
Based on this "liberal" interpretation the Court opinion concluded:
"Must a comprehensive medical-legal report or treating physician's report state the injured worker's condition has reached permanent and stationary status to indicate the existence of permanent disability within the meaning of section 4660(d)?
"Neither the plain meaning of the statutory language nor the legislative history of section 4660(d) supports that conclusion, which would be at odds with the general mandate to construe workers' compensation statutes liberally in favor of extending benefits to injured workers. (§ 3202.)
"Accordingly, we reject [the employer's] contention the WCAB should not have awarded Zavala permanent disability benefits based on the 1997 schedule... because neither a comprehensive medical-legal report nor a treating physician's report indicated Zavala... was permanent and stationary prior to January 1, 2005."
However, because the specific question of whether the reports showed that permanently disability actually existed prior to 2005 had never been specifically addressed (since the WCJ's and WCAB's decisions were based on other grounds), the Court remanded the case to determine "whether one of the specified medical reports indicated, based on substantial evidence, the existence of permanent disability prior to January 1, 2005."
To read the full opinion,
PLEASE CLICK HERE.
- Help for the Injured Worker
