At one time or another we faced a situation where there was a Temporary Disability (TD) or Permanent Disability (PD) credit outstanding but no indemnity owed to apply the credit, leaving the credit to be essentially worthless. A panel decision of the WCAB has addressed this issue.
The above issue was dealt with in Grimaldi v. City of Fullerton (2011) 39 CWCR 268. Applicant had a compensable injury to his right knee. Surgery was recommended but not authorized. Applicant was declared permanent and stationary by the treating physician, with PD at 18%. PDAs were started by the insurance carrier. Subsequently applicant suffered another compensable injury with a different employer to his right knee and underwent surgery. Eventually applicant went to a PQME who determined that the applicant only had 2% PD for the original right knee injury. By this time, the carrier had issued a substantial amount of PDAs based upon the original 18% report.
At trial, the parties agreed to the PD rating, amount of PD paid and to future medical treatment, leaving the PD credit the only remaining issue. The Trial Judge found that 50% of the outstanding PD credit could be assessed against future medical care. The Judge’s rationale was that the allowance of a credit was discretionary and thus he divided the PD credit amount evenly between the parties. Applicant filed a Petition for Reconsideration.
The WCAB panel, in a majority decision, upheld the Judge’s decision, with Commissioners Lowe and Moresi adopting the Judge’s reasoning. Commissioner Brass dissented and asserted that credit in one species of benefits need not be applied against another species of benefit, as indicated in Maples v. WCAB (1980) 45 CCC 1106. Commissioner Brass felt that the applicant did not request the PDAs (which begs the question of what would happen if the defendants did not advance PDAs, based upon the only evidence of PD in their possession, the 18% PD report) and the applicant could not predict that his right knee PD would in fact decrease after surgery.
The real effect of this case is that indemnity credit against future medical care is still discretionary by the Judge, but at least there is now case law supporting the possibility of indemnity credit against future medical care.