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“NEW WCAB DECISIONS ADDRESS ISSUE OF THE APPLICATION OF THE NEW
PDRS FOR INJURIES PRIOR TO JANUARY 1, 2005”
By Robert B. Hill, Esq.
In a recently issued en banc decision after reconsideration, Aldi
v. Carr, McClellan, Ingersoll, Thompson & Horn/Republic Indemnity
Co. (2006) 8 Appeals Board Rptr. 10,199, the WCAB has considered
the issue of the application of the new Permanent Disability Rating
Schedule (PDRS) for injuries occurring prior to January 1, 2005.
In this case, the applicant had sustained a cumulative trauma injury
ending November 18, 2002 to her neck and upper extremities. The sole
issue presented at trial was the application of the PDRS,
specifically whether the old or new schedule would apply to this
injury which occurred prior to the implementation of the new PDRS on
January 1, 2005. It was the determination of the workers’
compensation judge (WCJ) Hettick that the new PDRS was effective
only to dates of injury after its implementation (on January 1,
2005), and that the old PDRS applied to all dates of injury before
that date.
The defendant sought reconsideration, indicating that the WCJ had
misinterpreted the provisions of Labor Code Section 4660(d), and
that the new PDRS would apply unless one of the exceptions under
that code section applied, these being the existence of a
comprehensive medical-legal report or report by a treating physician
indicating the existence of permanent disability, or the requirement
that the employer issue the notice under Labor Code Section 4061
regarding the termination of temporary disability benefits.
It was the applicant’s contention that even if the WCJ’s opinion was
rejected, the fact that the initial payment of TTD benefits in
January 2003 was sufficient to “trigger” one of the statutory
exceptions thus bringing the case under the old PDRS, On
reconsideration, the WCAB rejected the WCJ’s legal conclusion,
holding that the express intent of Labor Code Section 4660(d) (and
further noting that SB 899 was “urgency legislation”) was to apply
the new PDRS as to all dates of injury unless one of the statutory
exceptions applies.
Further relying on A.D. Rule 9805, which clearly indicates that the
new PDRS is effective for all dates of injury unless one of the
three statutory exceptions applies, the WCAB determined that the
WCJ’s conclusion limiting the application of the new PDRS to dates
of injury January 1, 2005 and thereafter as being in error.
As such, the WCAB granted reconsideration for purposes of remand to
the WCJ to determine whether any of the statutory exceptions applied
which would bring the case under the old PDRS, and further to
consider whether the applicant’s contention of the notice under
Labor Code Section 4061 (termination of TTD benefits) would flow
from the initiation of benefits in 2003.
In an earlier panel decision Habiballah v. Starbucks (LBO
0363837), the WCAB on reconsideration considered more closely the
definition and application of the exceptions under Labor Code
Section 4660(d).
In this instance, the applicant had sustained a compensable
(although initially denied) cumulative trauma injury ending
September 28, 2004. Applicant was treated by Dr. Easley who provided
TTD reports of November 23, 2004 and December 16, 2004, followed by
a permanent and stationary report of April 6, 2005. Prior to this
time, the defendants had obtained the report (under Labor Code
Section 4060 on the issue of injury AOE COE) of Dr. Paul from which
the defendant denied liability for the claim on November 15, 2004.
Interestingly the dissent was written by the WCAB chairman Joseph
Miller, with the majority opinion written by Commissioners O’Brien
and Rabine. Noteworthy was this panel’s analysis as to whether a
“comprehensive medical-legal report” obtained prior to January 1,
2005 would need to indicate “the existence of permanent disability”
as was the case with the second exception dealing with the reporting
of the treating physician. In this case, the panel held that the
comprehensive report of the defense qualified medical evaluator (QME)
Dr. Paul dated November 13, 2004, even though it did not indicates
the “existence of permanent disability”, would be sufficient to
“trigger” the statutory exception and thus applying the old PDRS to
this case.
This raises the obvious question that if the defendants had
delayed in obtaining Dr. Paul’s report until after January 1, 2005
(which would not have provided them a basis to timely deny the
claim), whether under these facts the WCAB would have been
duty-bound to apply the new PDRS.
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