California Labor Codes 4660

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§§ 4660 Percentage of Permanent Disability

History: Amended by Stats 2004, CH 34, effective 4/19/04 Amended by SB 863; Effective Jan. 1, 2013 �This section shall apply to injuries occurring on or after January 1, 2013. (a)�In determining the percentages of permanent partial or permanent total disability, account shall be taken of the nature of the physical injury or disfigurement, the occupation of the injured employee, and his or her age at the time of injury. (b)�For purposes of this section, the "nature of the physical injury or disfigurement" shall incorporate the descriptions and measurements of physical impairments and the corresponding percentages of impairments published in the American Medical Association (AMA) Guides to the Evaluation of Permanent Impairment (5th Edition) with the employee's whole person impairment, as provided in the Guides, multiplied by an adjustment factor of 1.4. (c)(1)�Except as provided in paragraph (2), there shall be no increases in impairment ratings for sleep dysfunction, sexual dysfunction, or psychiatric disorder, or any combination thereof, arising out of a compensable physical injury. Nothing in this section shall limit the ability of an injured employee to obtain treatment for sleep dysfunction, sexual dysfunction, or psychiatric disorder, if any, that are a consequence of an industrial injury. (2)�An increased impairment rating for psychiatric disorder shall not be subject to paragraph (1) if the compensable psychiatric injury resulted from either of the following: (A)�Being a victim of a violent act or direct exposure to a significant violent act within the meaning of Section 3208.3. (B)�A catastrophic injury, including, but not limited to, loss of a limb, paralysis, severe burn, or severe head injury. (d)�The administrative director may formulate a schedule of age and occupational modifiers and may amend the schedule for the determination of the age and occupational modifiers in accordance with this section. The Schedule for Rating Permanent Disabilities pursuant to the American Medical Association (AMA) Guides to the Evaluation of Permanent Impairment (5th Edition) and the schedule of age and occupational modifiers shall be available for public inspection and, without formal introduction in evidence, shall be prima facie evidence of the percentage of permanent disability to be attributed to each injury covered by the schedule. Until the schedule of age and occupational modifiers is amended, for injuries occurring on or after January 1, 2013, permanent disabilities shall be rated using the age and occupational modifiers in the permanent disability rating schedule adopted as of January 1, 2005. (e)�The schedule of age and occupational modifiers shall promote consistency, uniformity, and objectivity. (f)�The schedule of age and occupational modifiers and any amendment thereto or revision thereof 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, amendment, or revision, as the case may be. (g)�Nothing in this section shall preclude a finding of permanent total disability in accordance with Section 4662. (h)�In enacting the act adding this section, it is not the intent of the Legislature to overrule the holding in Milpitas Unified School District v. Workers' Comp. Appeals Bd. (Guzman) (2010) 187 Cal.App.4th 808. (i)�The Commission on Health and Safety and Workers' Compensation shall conduct a study to compare average loss of earnings for employees who sustained work-related injuries with permanent disability ratings under the schedule, and shall report the results of the study to the appropriate policy and fiscal committees of the Legislature no later than January 1, 2016.

Relevant Case Law Universal City Studios, Inc., v. WCAB Note: Worker may receive 100% PD although able to return to work at prior wages; judge allowing rater to decide among evidentiary facts is improper. DeCelle v. City of Alameda Note: Disability in this section is not as to earning power only, but efficiency in ordinary pursuits of life. Argonaut Ins. Co. v. IAC (Montana) Note: IAC may use its general knowledge to forecast and weigh facts relevant in compensation award. Gaiera v. WCAB Note: Selection of factors for disability rating and percentage are sole discretion of WCAB. Fidelity & Cas. Co. of NY v. WCAB (Ratzel) Note: A parties recourse in objecting to rating is to cross-examine expert and rebuttal evidence. Galt v. WCAB Note: [Unpublished] Because a medical report submitted by the plaintiff did not contain an indication of permanent disability, the 2005 schedule applies. Baglione v. Hertz Car Sales Note: For the 1997 Schedule to apply under section 4660(d), the existence of permanent disability must be indicated in either a pre-2005 comprehensive medical-legal report or a pre-2005 report from a treating physician. Ogilvie vs. City and County of San Francisco Note: (1) the DFEC portion of the 2005 Schedule is rebuttable; (2) the DFEC portion of the 2005 Schedule ordinarily is not rebutted by establishing the percentage to which an injured employee's future earning capacity has been diminished; (3) the DFEC portion of the 2005 Schedule is not rebutted by taking two-thirds of the injured employee's estimated diminished future earnings, and then comparing the resulting sum to the permanent disability money chart to approximate a corresponding permanent disability rating; and (4) the DFEC portion of the 2005 Schedule may be rebutted in a manner consistent with Labor Code section 4660. Hertz v. WCAB (Aguilar) Note: An employer is not responsible for any portion of a worker's permanent disability that is caused by pre-existing non-industrial factors. Zenith Insurance v. WCAB (Azizi) Note: Labor Code 4660, subdivision (d) states the general rule that the applicable schedule is the one in effect on the date of the injury, and then provides an exception to that rule, namely, that the new schedule will apply to pre-2005 injuries unless one of three specified circumstances existed prior to 2005. Almaraz vs. Environmental Recovery Services (SCIF); Guzman vs. Milpitas Unified School Dist (Keenan) Note: (1) the AMA Guides portion of the 2005 Schedule is rebuttable; (2) the AMA Guides portion of the 2005 Schedule is rebutted by showing that an impairment rating based on the AMA Guides would result in a permanent disability award that would be inequitable, disproportionate, and not a fair and accurate measure of the employee�s permanent disability; and (3) when an impairment rating based on the AMA Guides has been rebutted, the WCAB may make an impairment determination that considers medical opinions that are not based or are only partially based on the AMA Guides. Vera v. WCAB Note: The WCAB properly denied the petition for reconsideration because the schedule for rating permanent disabilities that went into effect on January 1, 2005, applies to the instant case. Payless Shoe Source v. WCAB Note: [Unpublished] The WCAB must determine whether a report of a treating physician indicated the existence of permanent disability, thereby warranting the use of the 1997 PDRS. If the record is void of such evidence prepared before January 1, 2005, then Dalerio's permanent disability must be rated under the 2005 PDRS pursuant to section 4660, subdivision (d). Pendergrass v. Duggan Plumbing Note: If section 4660(d) is to be construed so as to effectuate the Legislature's intent to provide relief 'at the earliest possible time', it must be construed in the manner that ensures that the revised rating schedule applies 'at the earliest possible time.' General Foundry Service vs. WCAB (Jackson) Note: In cases of insidious, progressive diseases, the Board may tentatively rate the disability and reserve jurisdiction until P&S or until the permanent disability is 100%. Virginia Surety, Inc. v. WCAB Note: [Unpublished] The 1997 schedule applies in the present case, based on the statutory reading of section 4660, subdivision (d)(2) as established under Genlyte Group, LLC, etc. v. Workers' Comp. Appeals Bd., B198100, Jan. 3, 2008. Travelers Indemnity Co. v. WCAB Note: [Unpublished] Because the petitioner was not required to provide the section 4061 notice to injured employee as of January 1, 2005, the 2005 table must be used to determine the extent of the employee's permanent disability, and the WCAB erred in concluding otherwise. Valadez v. WCAB Note: [Unpublished] The Legislature expressly established that the 2005 PDRS applies prospectively at the time of the WCAB's determination unless one of three specific exceptions applies. State Compensation Insurance Fund v. WCAB (Jose Echeverria) Note: The court agreed to publish an opinion issued on Jan. 5 at the request of State Fund. Service Rock Products v. WCAB (Marquis) Note: [Unpublished] By its very terms mandating the employer notify the employee of his or her right to dispute the temporary disability termination, the section 4061 notice must be sent regardless of the WCAB's ultimate determination on the issues of temporary disability and permanent and stationary status. Costa v. Hardy Diagnostic Note: The costs at issue here may be allowable under section 5811 and vocational rehabilitation counselors may be appropriate expert witnesses to present evidence on and/or in rebuttal to a permanent disability rating under the new permanent disability rating schedule. Case remanded. HSR Inc. v. WCAB Note: [Unpublished] A medical opinion is not substantial evidence if it is based on an inadequate history, speculation or guess. Tenet/Doctors Medical Center v. WCAB Note: [Unpublished] A medical-legal report issued before January 1, 2005 need not state that that the claimant is permanent and stationary in order to trigger the old rating schedule. It is only necessary that a pre-2005 report indicate that the claimant has suffered a permanent impairment of earning capacity, a permanent impairment of the normal use of a body part, or a permanent competitive handicap in the open market. See Genlyte Group, Inc. v. WCAB, (2008) 158 Cal.App.4th 705. Boughner v. Comp USA Note: [En Banc] Applicant failed to carry his burden of demonstrating that the AD's adoption of the 2005 PDRS was arbitrary and capricious, or inconsistent with section 4660(b)(2). Tanimura v. Antle Note: It is the date of proof of permanent disability, not the date of injury that determines whether a disability rating falls under the 2005 Permanent Disability Rating Schedule (PDRS) or the prior 1997 schedule. Aldi v. Carr, McClellan, etc. Note: Failure by the Division of Workers' Compensation to adopt a new permanent disability rating schedule (PDRS) on or before 1/1/05, as mandated by Labor Code section 4660(e), did not otherwise alter its applicability to injuries that occurred earlier than 1/1/05. Snedecor v. WCAB Note: [Unpublished] Since the record supports the WCJ's finding that 2004 treating physician's reports incorporated diagnostic reports, the WCAB's determination that the WCJ relied solely on diagnostic reports to find indication of the existence of permanent disability under section 4660(d) is not supported by substantial evidence. Ogilvie v. City and County of San Francisco (II) Note: [En Banc] The language of Labor Code section 4660(c) unambiguously means that a permanent disability rating established by the Schedule is rebuttable. Nittel v. WCAB (San Jose Sharks) Note: The Sharks failed to give Nittel Labor Code 4061 notice, which meant that the 1997 Permanent Disability Rating Schedule should apply to his claim. Costa v. Hardy Diagnostic and State Compensation Insurance Fund Note: Presenting the deposition transcript of an expert from another unrelated case to which insurer was not a party deprives insurer of its fundamental right of cross-examination, and thus, of due process of law. City of Fresno v. WCAB Note: [Unpublished] Sufficient evidence existed for the WCAB to find a pre-2005 'indication of permanent disability' warranting the use of the 1997 PDRS. Chang v. WCAB Note: The 'liberality rule,' which is found in section 3202 and obligates the court to liberally construe the workers' compensation law in favor of the injured worker, 'cannot supplant the intent of the Legislature as expressed in a particular statute.' If the Legislature's intent appears from the language and context of the relevant statutory provisions, then [the court] must effectuate that intent, 'even though the particular statutory language 'is contrary to the basic policy of the [workers' compensation law].' Almaraz v. Environmental Recovery Services (II) Note: [En Banc] The language of Labor Code section 4660(c) unambiguously means that a permanent disability rating established by the Schedule is rebuttable. Bed, Bath & Beyond v. WCAB Note: [Unpublished] An employer is not required to provide a notice of permanent disability benefits until the last temporary disability payment is made or has become due. Blackledge v. Bank of America Note: [En Banc] Physician's role is to assess the injured employee's whole person impairment percentage(s); WCJ's role is to frame instructions; rater's role is to issue a recommended permanent disability rating; WCJ is not bound by a rater's disability rating; must be no ex parte communication between the WCJ and the rater. Zenith Ins. v. WCAB Note: The injured worker's permanent and stationary status is not required before a physician's report can indicate the existence of permanent disability under section 4660(d). Genlyte Group, Inc. v. WCAB Note: Neither the statutory language or the legislative history of Labor Code section 4660 (d) indicates that a comprehensive medical-legal report or treating physician's report state the injured worker's condition has reached permanent and stationary status to indicate the existence of permanent disability. Costco Wholesale Corp. v. WCAB Note: 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. Milpitas Unified School District v. WCAB (Guzman) Note: The court concluded that the language of Labor Code 4660 permits reliance on the entire Guides, including the instructions on the use of clinical judgment, in deriving an impairment rating in a particular case. Energetic Painting and Drywall Inc. v. WCAB Note: Under Labor Code section 4061, an employer must give the notice required by that statute to the injured worker 'together with the last payment of temporary disability indemnity,' and the employer is 'not required' to provide that notice until the last temporary disability payment is made or has become due.