First, they told us - in a 4/3 en banc opinion - only one type of medical report required mention of PD prior to 2005 in order to use the old PDRS.
Then, a few weeks later (when another commissioner was appointed), in another 4/3 en banc decision, they told us - no - it didn't matter what kind of report it was, either had to include the magic words. (Also known as the "It's Not About the Comma, Stupid" opinion.)
Then just when you thought you'd figured it all out... Wait there's more!
In a brand-new published case before the Second District Court of Appeal - Zenith v. WCAB (Cugini) - a new twist has been added to the issue: What's a "report"??
While this case also dealt with - and reiterated - the holding that the ending date of TD is what determines when the duty to issue an end-of-TD notice arises (which is another exception to when the "old" PDRS can be used), the case was remanded to the WCAB for a determination on a potentially far more interesting issue:
What exactly constitutes a "report" for purposes of when the old or new rating schedule should be used?
Specifically, must it be one single report that says all the magic words (about PD existing prior to 2005)? Or can it be two or more reports which - when read together - show the existence of PD?
The Court's published remand came with these instructions:
"Zenith also contends that the new schedule applies because Dr. Fenton's report of December 28, 2004, is a three sentence conclusion that permanent disability exists, which is unsupported by the history, facts, a diagnosis or reasoning and is not substantial evidence...
"[Applicant] contends that Dr. Fenton's report should be read with his initial report of October 12, 2004, and there are numerous medical reports indicating the existence of permanent disability under section 4660(d)...
"Accordingly, we remand the matter to the WCAB to determine whether Dr. Fenton's December 28, 2004, report, or any other qualifying report, indicates the existence of permanent disability under section 4660(d)."
Hmmm....
To read this published opinion,
PLEASE CLICK HERE.
[And don't forget the other conflicts regarding this issue: Whether the report (or reports) must just indicate the existence of PD or whether they must also indicate the worker is permanent and stationary.
As of last week, at least two cases say only the mention of pre-2005 PD is required, while another Court says that P&S status must also be indicated. To read more about these conflicts elsewhere in this week's edition, CLICK HERE.
Paraphrasing Rodney King, Oh can't we all just get better reform-writers next time around??]
- Help for the Injured Worker
