January 23, 2007
Old v New Schedule Decision/ WELCHER Granted Preference
The District Court of Appeals in the First Appellate District has ordered publication of a previously issued decision interpreting Labor Code § 4660 and the obligation to utilize the pre‑1/1/05 permanent disability rating schedule where the treating physician signed a form created by the Applicant Attorney in an attempt to compel use of the pre-1/1/05 PDRS..
In State Compensation Insurance Fund v. WCAB, Eccheverria the trial judge and the WCAB had ordered use of the pre‑1/1/05 permanent disability rating schedule (old schedule) based on a report of the treating physician which had been solicited by the applicant attorney. In that report the treating physician had simply signed off on a letter written by the applicant attorney which indicated as follows:
"Please advise by merely signing and dating this letter if you believe permanent disability, as that term is now defined, is a reasonable medical probability as a result of your patient's industrial injury.
It is very important so your immediate attention to this matter would be greatly appreciated.
"I believe permanent disability is within reasonable medical probability emanating from this injury."
Below the last sentence there was a space for a date and signature which was executed by the PTP on 12/15/05.
Both the Board and the WCJ read this last sentence, in light of Dr. Morales' other reports, to constitute a "report by the treating physician indicating the existence of permanent disability" within the meaning of 4660(d).
State Fund appealed the determination of the WCAB making several arguments. State Fund argued that the report did not meet the requirements for physician's report specified in Section 9785 of Title VIII of the California Code of Regulations. The Court rejected this issue because State Fund did not object to introduction of the report at trial and therefore waived the issue.
The court also was dismissive of State Fund's argument that the report contradicted and was defeated by the injured worker's temporary total disability status.
What the court focused on was the language in the Appeals Board determination that this report read "in light of" the other medical reports of the same physician supported the conclusion that there would be permanent disability. The court reviewed the other medical reports and did not find any evidence in the other reports that described the existence of permanent disability.
"In this case, the Board read Dr. Morales' December 14, 2004 single sentence statement in conjunction with all of his other reports from September 20, 2004, through November 11, 2005. Dr. Morales' reports of September 20, 2004 and November 11, 2004 describes final range of motion problems which persist through the examinations of Eccheverria. Nothing in these reports, however, appears to tie the range of motion and pain symptoms to Dr. Morales' December 15, 2004 (sic) prediction of permanent disability. To the contrary, the reports make no mention at all of prognosis but instead simply declare that Eccheverria remained temporarily totally disabled. None of the reports provide any reason to support Dr. Morales' December 15, 2004 conclusion."
This is the first appellate decision on application of Labor Code § 4660. The case is in many respects very narrowly drawn and it is difficult to determine how expansive it can be interpreted in other situations. Certainly it became fairly commonplace for applicant attorneys as 1/1/05 approached to request treating physicians to issue reports very similar to those issued by the treating physician in this case. It seems reasonable to interpret this case to hold that if there is no other evidence or opinion within the medical file which suggests that there is going to be permanent disability the mere checkbox format that was utilized by so many physicians is not going to be sufficient to trigger the use of the pre‑1/1/05 permanent disability rating schedule in these situations.
In this respect this case is very similar to the holding in one of the early WCAB opinions in Vera v. Sapper Construction Company which was widely circulated but is not a citable opinion. In Vera the Appeals Board in a divided panel with Merle Rabine dissenting concluded that the report of the treating physician regarding the existence of permanent disability was inconsistent with prior opinions on the issue of temporary disability. The doctor however concluded the injured worker was not permanent and stationary at the time of the evaluation. The report in Vera is considerably more comprehensive with a lot more discussion compared with the one line signed agreement in this case.
It may also be reasonable to conclude that the appellate courts are going to be less than receptive to arguments than reports which are effectively staged by the applicant's attorney in order to avoid use of the new rating schedule are going to be more scrupulously reviewed. This court's opinion does not provide extensive analysis regarding the issue and does not cite any authority from any of the various cases that have been handed down from the Board over the last year or two on this issue.
The original case was issued on January 5, 2007. State Fund petitioned for publication as did a number of other entitles including CWCI. The requests for publication all pointed out that this was the first appellate interpretation of this particular Labor Code Section and that the court would be doing an injustice to the parties for not ordering publication. Apparently the court agreed.
There are still lots of different scenarios that still require clarification and some of the cases that will address those issues are currently pending at the appellate court level.
A copy of the decision can be located by clicking on the case name above.
WELCHER Granted Preference:
The Supreme Court has granted the request filed by the W.C.A.B. to grant a calendar preference to the Welcher cases. This should result in a significantly shorter time for the Court to hear the cases and issue its final decisions in these cases. The Court has already denied requests by several of the parties for extensions of time to file briefs which suggests the Court is acutely aware of the significance of the cases and the impact their decision will have on the workers' compensation community.
Absent the preference, the workers' comp community could have anticipated a 2 year wait to get this issue resolved. I am not clear how much the preference will advance this timetable but it is likely that the case will be argued this year. If so, it is possible that a decision could issue in 2007 but equally possible that the court might issue its decision after the end of this year. In any event we should not have to wait until 2008 as had originally been feared.
Richard M. Jacobsmeyer
Certified Specialist, Workers' Compensation Law
The State Bar of California Board of Legal Specialization
SHAW, JACOBSMEYER, CRAIN & CLAFFEY
475 – 14th Street, Suite 850
Tel: (510) 645-7172
Fax: (866) 563-0092