Raquel Torres v. SDM Precision Products and SCIF

By
Robert L. Cassio

In Torres, the applicant sought reconsideration of a May 5, 2006 Findings and Award issued by a WCJ wherein it was found that the applicant sustained injury to her hands and neck which caused 16% permanent disability and need for further medical treatment. The WCJ found the 16% permanent disability rating based upon the new rating guidelines. The applicant also was seeking reconsideration based on the WCJ’s failure to find a period of temporary disability for the months of August 30, 2002 through March 1, 2004.

At issue was Labor Code section 4660(d) which determined which rating guidelines the court would follow. In Torres, the defendants had obtained an AOE/COE report dated March 18, 2004. In that report, the doctor found that the applicant’s injury was not work-related. The WCJ apparently did not believe that the AOE/COE report constituted an exception under Labor Code section 4660(d) which would cause the old rating system to be utilized. Specifically, there was no med-legal report which also indicated the existence of permanent disability.

The panel noted that in the recent en banc decision of Aldi v. Carr which touched on Labor Code section 4660(d), they did not address when and how the exceptions of that Labor Code section applied.

The panel indicated and applied simple rules of grammar to determine the issue of whether a comprehensive medical-legal report must also indicate the existence of permanent disability. The panel noted that in applying the rules of construction to the third sentence of Labor Code section 4660(d) the qualifying phrase, “indicating the existence of permanent disability” is not separated by a comma from antecedents “no comprehensive medical-legal report or no report by a treating physician.” Based on that, the panel noted that the revised rating schedule applies where: 1) There has been no comprehensive medical-legal report; or 2) no report by a treating physician indicating the existence of permanent disability; or 3) when the employer is not required to provide notice required by section 4061 to the injured worker. In short, the panel found that the grammar of Labor Code section 4660(d) does not require a comprehensive medical-legal report that also identifies the existence of permanent disability for the prior rating schedule to apply. Any comprehensive med-legal report for any reason will evoke the section 4660(d) provisions which will trigger the prior rating schedule to be utilized.

The case was remanded for the WCJ to determine the rating under the old rating system as well as to address all other issues.