Difference between revisions of "California Labor Codes 4660"

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(§ 4660 Schedule of permanent disability percentages)
(§ 4660 Schedule of permanent disability percentages)
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<td width="20%" valign="top"><b>Relevant Case Law</b>
 
<td width="20%" valign="top"><b>Relevant Case Law</b>
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[http://www.workcompcentral.com/members/index.php?fa=wiki_redirect&case_no=251912212992519&state=CA Universal City Studios, Inc., v. WCAB]
 
[http://www.workcompcentral.com/members/index.php?fa=wiki_redirect&case_no=251912212992519&state=CA Universal City Studios, Inc., v. WCAB]
 
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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.
 
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.
 
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<div id="explanation1" style="display:none">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.</div>
 
[http://www.workcompcentral.com/members/index.php?fa=wiki_redirect&case_no=253211212182532&state=CA DeCelle v. City of Alameda]
 
[http://www.workcompcentral.com/members/index.php?fa=wiki_redirect&case_no=253211212182532&state=CA DeCelle v. City of Alameda]
  

Revision as of 12:34, 14 April 2009

California > Labor Codes

§ 4660 Schedule of permanent disability percentages

History:



(a) In determining the percentages of permanent 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 the injury, consideration being given to an employee's diminished future earning capacity.

(b) (1) 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). (2) For purposes of this section, an employee's diminished future earning capacity shall be a numeric formula based on empirical data and findings that aggregate the average percentage of long-term loss of income resulting from each type of injury for similarly situated employees. The administrative director shall formulate the adjusted rating schedule based on empirical data and findings from the Evaluation of California's Permanent Disability Rating Schedule, Interim Report (December 2003), prepared by the RAND Institute for Civil Justice, and upon data from additional empirical studies.

(c) The administrative director shall amend the schedule for the determination of the percentage of permanent disability in accordance with this section at least once every five years. This schedule 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.

(d) The schedule shall promote consistency, uniformity, and objectivity. The schedule 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 fact may be. For compensable claims arising before January 1, 2005, the schedule as revised pursuant to changes made in legislation enacted during the 2003-04 Regular and Extraordinary Sessions 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.

(e) On or before January 1, 2005, the administrative director shall adopt regulations to implement the changes made to this section by the act that added this subdivision.

  Relevant Case Law

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.

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.

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.

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.

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.

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.

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.

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].'

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.

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.

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.