BOARD UPHOLDS VALIDITY OF NEW RATING SCHEDULE
Joey M. Costa v. Workers’ Compensation Appeals Board;
Hardy Diagnostic (GRO 0031810)

In a unanimous en banc decision, the Board held 1) that the applicant had not met his burden of proving that the new Permanent Disability Rating Schedule (PDRS) under Labor Code 4660 was invalid, and 2) that as under former Labor Code section 4660, current Labor Code section 4660 allows the parties to present rebuttal evidence to a proposed rating and that the costs of such rebuttal evidence may be allowable.

In this particular case, the WCJ issued a Findings and Award on January 20, 2006 and found pursuant to the parties stipulation, that the applicant sustained an industrial injury to his low back, but not to his neck, while employed as a shipping and receiving clerk from August 30, 1996 to August 18, 2004, causing 6% permanent disability after apportionment of 50% to a pre-existing non-industrial condition. The WCJ determined applicant’s permanent disability by applying the new PDRS effective January 1, 2005. The WCJ also found that, among other things, “nothing in the RAND Report: Evaluation of California’s Permanent Disability Rating Schedule interim report December 2003 supports applicant’s claims that either the new rating schedule was improperly adopted or that the future earning capacity (FEC) factor contained in the new rating schedule was inappropriate.”

A Board panel granted reconsideration of the WCJ’s decision that had rejected the applicant’s attack on the validity of the diminished future earning capacity (DFEC) adjustment in the 2005 Rating Schedule.

After a lengthy analysis, the Board found that the applicant had not met his burden of providing that the administrative director’s action in formulating the DFEC were arbitrary or capricious or inconsistent with Labor Code section 4660. Further, since the new rating schedule is considered under Labor Code section 4660 (c) to be prima facie evidence of the percentage of permanent disability attributable to an injury covered by the schedule, the parties are free to present rebuttal evidence to ratings under the new schedule. What evidence might actually rebut a rating will be decided on a case-by-case basis. The Board also ruled that costs for such evidence may be allowable under Labor Code section 5811.

Also, of significance is the Board held that the new permanent disability rating schedule applies to injuries before January 1, 2005, unless one of the exceptions to Labor Code section 4660 (d) applies. The Board relied upon its en banc decision in Elizabeth Aldi v. Carr, McClellan, et al and specifically stated that the permanent disability rating schedule adopted by the Administrative Director effective January 1, 2005, does apply to injuries which occurred before that date, pursuant to Labor Code section 4660 (d) “when there has been either no comprehensive medical-legal report or no report by a treating physician indicating the existence of permanent disability, or when the employer is not required to provide the notice as required by Labor Code section 4061 to the injured worker.”

The Board held the applicant in this instance had not alleged that any of these exceptions to Labor Code section 4660 (d) were applicable, and therefore ruled that the applicant’s cumulative back injury ending in August 2004, should be rated under the new permanent disability rating schedule.

Therefore, though this decision upholds the validity of the new PDRS, we can continue to expect attacks to the same by applicants’ in light of the fact the parties are allowed the opportunity to present rebuttal evidence to ratings under the new PDRS.

Disclaimer: The information contained in this publication is intended for informational purposes only and should not be construed as legal advice. You should seek competent legal counsel for advice on any legal matter.