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08/28/07 Seven Comp Bills Still Alive as Legislature Winds Down 08/09/07 WCAB Panel Opens Way for Pre-2005 PD Cases 07/21/07 CAAA Lawyer May Face Criminal Charges 06/29/07 Senate Committee Approves Six Comp Measures 06/25/07 Medical-Billing Decision Upsets Kunz Interpretation |
| WCAB Panel Opens Way for Pre-2005 PD Cases:
08/09/07
A "comprehensive medical-legal report" does not have to indicate a permanent disability in order for a pre-2005 injury claim to be rated under the old schedule, a California Workers' Compensation Appeals Board panel recently decided. The three-member panel decided in Raquel Torres v. SDM Precision Products, No. LAO 832511 (7/24/06), that the grammar of Labor Code Section 4660(d) does not link the medical-legal report and a finding of permanent disability, thus the report by itself can be sufficient to qualify for a rating under the old schedule. "The grammar of the third sentence of section 4660(d) does not require a 'comprehensive medical-legal report' that also indicates the existence of permanent disability, in order for the prior rating schedule to apply," Commissioner Merle Rabin wrote in an opinion joined by Commissioners Frank Brass and Ronnie Caplane. "For the prior rating schedule to apply to a 'comprehensive claim ... arising before Jan. 1, 2005,' it is sufficient that 'there has been' a 'comprehensive medical-legal report' for any reason," the opinion said. The ruling arose from a case filed by applicant Raquel Torres who worked as a machine operator from January through August 2002. She sustained an industrial injury to her hands and neck that caused 16% permanent disability, the trial court found. The judge also found she would need further medical treatment. Torres contended the court erred in not rating her disability under the old schedule rather than the revised schedule, which resulted in an overall 50% decrease in monetary awards to injured workers. The WCAB panel took up her petition on review and remanded the case back to the trial court with instructions to rate Torres' physical impairments under the old permanent disability schedule. The panel said that its reading of Labor Code Section 4660(d) led the commissioners to conclude that there was no linkage -- and therefore no requirement -- that the medical-legal report for a pre-2005 injury claim include a finding of permanent disability. The report cited in Torres' favor in her case, ironically, was submitted by her employer. Dr. Christopher Fleming examined Torres and concluded that her injury was not work related. The WCAB panel said Fleming's report is a "comprehensive medical-legal report" and therefore sufficient to have Torres' permanent disability rated under the prior schedule. The panel explained it applied the grammar rule of construction to the statute and came away with its opinion that the exceptions are separate and distinct, rather than meant to be linked for an applicant's disability claim to qualify under the old schedule. "Accordingly, we read section 4660(d) as providing that the revised rating schedule applies where: (1) there has been no comprehensive medical-legal report; or (2) no report by a treating physicians indicating the existence of permanent disability; or (3) when the employer is not required to provide the notice required by Section 4061 to the injured worker," the WCAB panel wrote. To download a copy of the opinion, click here. -- Source: WorkCompCentral
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