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  July 14, 2008
  Source:  WorkInjury.com
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CA/5:   Use of Old PDRS Reversed, Must Look to Pre-2005 Reports Only

In this unpublished case, the employer (Payless) petitioned for a writ arguing that the WCJ's use of the "old" (1997) Permanent Disability Rating Schedule to rate the disability was improper.

Payless contended that it was wrong for the judge to look at post-2005 evidence to determine that the employer "should have" sent a Section 4061 temporary disability benefit termination notice "back in time" so as to trigger the use of the 1997 PDRS.

The Court remanded the case so that the WCAB could consider whether the case truly fell under one of the enumerated exceptions listed in Labor Code Section 4660(d), which would permit the use of the old schedule here.

"We agree with Payless that the WCAB may not look to evidence prepared after January 1, 2005, to establish that an employer, unaware of the employee's medical condition, was required to send the employee a section 4061 temporary disability benefit termination notice "back in time" before that date so as to trigger the use of the 1997 PDRS.

"We therefore vacate the WCAB's order denying reconsideration and remand the matter to the WCAB to consider whether another exception exists to apply the 1997 PDRS, and if not, to rate the injured employee's permanent disability under the 2005 PDRS."

The case is Payless Shoe Source v. WCAB.

To read the full opinion,

PLEASE CLICK HERE.