City of Galt v. WCAB

Filed 9/21/07 City of Galt v. WCAB (Ramos) CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

Concepcion Ramos injured his feet on the job as the result of cumulative trauma that occurred between August 2002, and January 2003. He received temporary disability benefits for his injury beginning sometime before January 1, 2005, and continuing through April 2005. The question here is whether -- based on the date of Ramoss injury and the dates his temporary disability benefits began and ended -- the workers compensation administrative law judge (WCJ) properly calculated Ramirezs permanent disability award using the 1997 schedule for rating permanent disabilities, rather than the 2005 schedule for rating permanent disabilities. As we will explain, we agree with petitioner City of Galt (the city) that the WCJ used the wrong schedule. Accordingly, we will annul the order denying the citys petition for reconsideration and remand the case for recalculation of Ramoss permanent disability rating.

DISCUSSION

In 2004, the Legislature enacted omnibus reform of the workers compensation system. As pertinent here, Senate Bill No. 899 (2003-2004 Reg. Sess.) amended Labor Code^[1]section 4660, which governs the calculation of the percentage of permanent disability. The amended statute required the administrative director to formulate a new rating schedule. ( 4660, subd. (b)(2).) That new schedule went into effect on January 1, 2005, superseding the 1997 rating schedule previously in effect. (See State Comp. Ins. Fund v. Workers Comp. Appeals Bd. (2007) 146 Cal.App.4th 1311, 1313.)

Subdivision (d) of section 4660 (section 4660(d)) provides in relevant part that [t]he [2005] schedule . . . shall apply prospectively and shall apply to and govern only those permanent disabilities that result from compensable injuries received or occurring on and after the effective date of the adoption of the schedule . . . . For compensable claims arising before January 1, 2005, the [2005] schedule . . . shall apply to the determination of permanent disabilities 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 required by Section 4061 to the injured worker.

While the statute is not a model of linguistic clarity, its intent is clear. (Costco Wholesale Corp. v. Workers Comp. Appeals Bd. (2007) 151 Cal.App.4th 148, 157.) [W]hen any of the[] three circumstances [described in the final sentence of section 4660(d)] have occurred before January 1, 2005, the percentage of permanent disability will be calculated using the earlier schedule that was in effect on the date of the injury. (Costco Wholesale, at p. 152.) On the other hand, when none of the three circumstances has occurred before January 1, 2005, then the 2005 schedule applies.

This case involves the proper application of the third circumstance described in section 4660(d), specifically, when the employer is not required to provide the notice required by Section 4061 to the injured worker. Subdivision (a) of section 4061 provides that [t]ogether with the last payment of temporary disability indemnity, the employer shall . . . provide the employee with a certain type of notice regarding permanent disability (hereafter the section 4061 notice).^[2] Thus, if the employer was required to provide the section 4061 notice to the injured worker before January 1, 2005, then the schedule in effect on the date of injury is to be applied in determining the extent of permanent disability; otherwise, the 2005 schedule is to be applied (assuming neither of the other two circumstances described in section 4660(d) existed as of January 1, 2005).

The WCJ in this case decided that the percentage of Ramoss permanent disability was to be determined under the old schedule, i.e. -- the 1997 schedule in effect at the time of Ramoss injury -- because the duty . . . to notify the applicant of termination of temporary disability arose when temporary disability benefits were firstpaid sometime before January 1, 2005.

In November 2006, the city petitioned the Workers Compensation Appeals Board (WCAB) for reconsideration of the WCJs decision to apply the 1997 schedule. While that petition was pending, the WCAB (sitting en banc) decided Pendergrass v. Duggan Plumbing (2007) 72 Cal.Comp.Cases 95. In Pendergrass, a four-member majority of the WCAB concluded that the employer is required to provide the notice required by section 4061 once the first payment of temporary disability indemnity is made, although the timing of the notice is contingent on the duration of temporary disability indemnity. (Id. at p. 99.) Therefore, if the first date of compensable temporary disability occurred prior to January 1, 2005, then the 1997 Schedule applies to determine the extent of permanent disability. (Id. at p. 96.)

The three dissenting members of the WCAB concluded that the plain language of sections 4061 and 4660(d) required a different result. (Pendergrass v. Duggan Plumbing, supra, 72 Cal.Comp.Cases at p. 100.) In their view, the obligation to provide notice [does] not arise until the actual last payment of temporary disability indemnity. (Ibid.)

Relying on the majoritys decision in Pendergrass, the WCAB denied the citys petition for reconsideration in January 2007. The city subsequently petitioned this court for review. While that petition was pending, the WCAB granted reconsideration in Pendergrass and in April 2007 issued a new opinion in which the former dissenting view became the majority (and vice versa).^[3] (Pendergrass v. Duggan Plumbing (2007) 72 Cal.Comp.Cases 456.)

In May 2007, we issued a writ of review in this case to decide the proper interpretation of section 4660(d). Subsequently, Division Four of the Court of Appeal, First Appellate District addressed the issue in Costco Wholesale Corp. v. Workers Comp. Appeals Bd., agreeing with the new majority in Pendergrass that an employer is required to give notice under section 4061 within the meaning of section 4660(d) when the employer makes the last payment of temporary disability benefits, not when those payments commence. (Costco Wholesale Corp. v. Workers Comp. Appeals Bd., supra, 151 Cal.App.4th at p. 155.) This court agreed with the Costco courts interpretation of section 4660(d) in Energetic Painting & Drywall, Inc. v. Workers Comp. Appeals Bd. (2007) 153 Cal.App.4th 633. We follow the Costco and Energetic Painting decisions here.

Ramos argues that even if the city was not required to provide the section 4061 notice to him before January 1, 2005, the 1997 schedule still applies because both of the other circumstances described in the final sentence of section 4660(d) were present here. Specifically, he argues that two physicians issued medical-legal reports before 1/1/05. He also contends there was a report by a treating physician indicating the existence of permanent disability before January 1, 2005, because one physician outlined modified work duties in a report before that date.

We are not persuaded. As the Costco court explained, a medical-legal report, like a treating physicians report, must contain an indication of permanent disability to trigger use of the pre-2005 rating schedule. (Costco Wholesale Corp. v. Workers Comp. Appeals Bd., supra, 151 Cal.App.4th at p. 155.) The only indication of permanent disability that Ramos contends exists in any comprehensive medical-legal or treating physicians report is the work restrictions contained in a March 20, 2003 treating physician report of Dr. Vincent Marino. In that report, however, Dr. Marino expressly states that Ramos is not yet permanent and stationary. (Italics added.) Accordingly, Dr. Marinos report does not support Ramoss argument.

Because the city was not required to provide the section 4061 notice as of January 1, 2005, and because Ramos has failed to identify any indication of permanent disability contained in a comprehensive medical-legal or treating physicians report before that date, the 2005 table must be used to determine the extent of Ramoss permanent disability, and the WCAB and the WCJ erred in concluding otherwise. Accordingly, we will remand this matter to the WCAB, so that it can send the case back to the trial level to recalculate Ramoss permanent disability rating under the 2005 schedule.

DISPOSITION

The WCABs order denying the citys petition for reconsideration is annulled. The matter is remanded for further proceedings consistent with the views expressed herein. The parties shall bear their own costs in the proceedings before this court. (Cal. Rules of Court, rule 8.490(m)(2).)

ROBIE , J.

We concur:

DAVIS, Acting P.J.

RAYE , J.

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^[1] All statutory references are to the Labor Code unless otherwise indicated.

^[2] Specifically, the employer must give the employee [n]otice . . . that no permanent disability indemnity will be paid because the employer alleges the employee has no permanent impairment or limitations resulting from the injury, notice of the amount of permanent disability indemnity determined by the employer to be payable, or [n]otice that permanent disability indemnity may be or is payable, but that the amount cannot be determined because the employees medical condition is not yet permanent and stationary. ( 4661, subd. (a)(1), (2).)

^[3] The explanation for this about-face lies in the fact that the composition of the WCAB changed after the original en banc decision in Pendergrass, and the new board member agreed with the three members who had dissented originally. (See Pendergrass v. Duggan Plumbing, supra, 72 Cal.Comp.Cases at p. 459.)

A petition for writ of review in Pendergrass is now pending in the Sixth Appellate District. (Pendergrass v. Workers' Compensation Appeals Board (H031562).)