Revised Rating Schedule v. Old Rating Schedule (LC 4660)

By
Robert L. Cassio

Elizabeth Aldi v. Carr, McClellen et. al. 71 CCC *** (advance posting and subject to change) 2006 Cal.Wrk.Comp.LEXIS 189

As litigation continues over the meaning of changes under SB 899, one of the biggest issues at the Workers Compensation Board is what rating schedule applies to the parties particular case.

Recently the applicant’s bar was encouraged by the ruling of a WCJ in Northern California who ruled, in essence, that unless the date of injury for an injured worker was on or after 1/1/05, the old rating schedule applied. The defendants filed a petition for reconsideration on this issue. The result was an en banc decision (cited above) which ruled: the revised permanent disability rating schedule effective 1/1/05 applies to all injuries occurring on or after that date, and that in cases of injury prior to that date, the revised schedule applies unless one of the exceptions delineated in the third sentence of 4660(d) is present.

Thus, at the present time, the revised schedule (in part based upon the AMA Guidelines) will apply to all cases in accordance with labor code section 4660 unless one of the exceptions noted in 4660(d) is met. The exceptions are as follows:

1)There has been a comprehensive medical-legal report; or

2)there is a report by a treating physician indicating the existence of permanent disability; or

3)the employer was required to provide notice required by Section 4061 to the injured worker. (i.e. notices required with the last payment of temporary disability)

When determining whether to apply the old or new rating schedules look to labor code section 4660(d) and ask yourself three questions: Has there been a comprehensive med-legal report? Is there a treater report indicating the existence of permanent disability? Was the employer required to issue notice in accordance with Section 4061 based on termination of temporary disability? If all of those questions are answered negatively, the revised schedule will most likely apply based on the en banc decision of Aldi and LC 4660.

Note that the Aldi case may be appealed in the near future so the current interpretation based on Aldi may be changing in the not too distant future.

Look for additional cases and litigation regarding the three exceptions to continue in the not too distant future. Specifically what is notice of permanent disability? When is the 4061 notice required to be issued? What is a comprehensive med-legal report rather than just a med-legal report? Etc etc etc. Depending on whether the rating rates higher under the new guides or the old, parties will continue to attempt to find ways to fall into the rating schedule which benefits their respective clients. For now, the en banc decision of Aldi is an encouraging decision that the intent of SB 899 is still alive.