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05/25/07 First Appellate Court Opinion Cements WCAB En Bancs

05/04/07 Justices Say SB 899
Left Apportionment Formula
Alone

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The San Francisco-based 1st District Court of Appeal beat three other district courts to the punch with a ruling on exceptions to the new permanent disability rating schedule.

The court's published opinion on the exception clause in Labor Code Section 4660 effectively affirms the conclusion reached by the Workers' Compensation Appeals Board the second time in Baglione and Pendergrass.

The board on April 6 issued en banc opinions saying that a doctor's medical-legal report written before Jan. 1, 2005, must indicate permanent disability to qualify for an exception to the 2005 rating schedule. The commissioners on a 4-3 re-vote also decided that an employer's duty to notify an employee begins with the last payment of temporary disability, rather than the first.

Justice Maria Rivera of the 1st District Court of Appeal wrote an opinion released Wednesday in which the judges rejected a claimant's construction of Labor Code Section 4660(d) to require no indication of permanent disability in a comprehensive medical-legal report.

Such an interpretation of the provision in Senate Bill 899 would be "contrary to the spirit of the statute and the workers' compensation reform package as a whole," Rivera wrote.

"Under Labor Code Section 4660(d), a medical-legal report, like a treating physician's report, must contain an indication of permanent disability to trigger use of the pre-2005 rating schedule," her opinion said.

The case is Costco Wholesale Corp. v. WCAB (Chavez), A116145, 05/23/2007, and is the first of as many as 11 appeals before California courts on the old vs. new disability rating schedule.

The 1st District Court also decided that the final payment -- rather than the first one -- triggers the employer's obligation to notify an injured worker whether permanent disability is expected.

With 4660(d) exceptions before the 3rd, 4th and 6th District Courts of Appeal, it remains to be seen if there will be a split among the courts. And the 1st District Court in San Francisco has three more of the permanent disability rating cases accepted on appeal. It's even possible the separate panels within the 1st District Court could disagree on what qualifies for exception to the 2005 schedule.

The opinion can be viewed by clicking on the case title in the side bar at right.

-- Source WorkCompCentral

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