The Proper Schedule To Use Is Determined

This is a significant en banc decision from the Workers” Compensation Appeals Board (WCAB).

Applicant sustained an admitted industrial injury in June of 2004. The defendant commenced paying temporary disability in June of 2004 and continued paying into 2005. The case went to trial on the primary issue of whether the rating schedule of 1997 or the rating schedule of 2005 should be applicable to the applicants injury.

The Workers’ Compensation Judge (WCJ) determined that the 2005 schedule should be applicable because none of the three exceptions enumerated in Labor Code section 4660 (d) were applicable.

The applicant filed a petition for reconsideration on the grounds the 1997 schedule should be applicable. The applicant alleged that the defendant was required under Labor Code section 4061 to send notice once the temporary disability payments commenced.

The WCAB reviewed this case and issued a split decision. Four members of the Board found that the 1997 rating schedule was applicable, not the 2005 schedule. Three members dissented. This almost guarantees an appellate court review.

The majority concluded that the employer’s duty to provide notice under Labor Code section 4061 arises with the first payment of temporary disability.

They indicated this is an absolute duty. Thus, the 1997 Schedule applies to calculate applicant’s permanent disability.

There is a strong dissent from three board members and this should certainly go up on appeal. There will probably be another newsletter on this issue.


New Apportionment Case Overrules Dykes

This is a published appeals court decision

This is a significant appellate court decision which ensures that this issue will be decided ultimately by the Supreme Court.

The applicant suffered an industrial injury that made her 100 percent permanently disabled. She had suffered a prior workers’ compensation injury for which she previously received an award of 35 % permanent disability.

The matter came before a Workers’ Compensation Judge (WCJ) who used the formula prescribed by the Supreme Court in the Fuentes case. The WCJ subtracted 35% from 100 % to give the applicant an award of 65%. This equated to $65,662.50. The applicant contended the Dykes formula should have been applied resulting in payment to the applicant of $420,649.21. Obviously, this a huge difference.

Fuentes relied on a different apportionment statute. The apportionment statute changed in April of 2004. The court indicated they can not rely on cases decided under prior law. However, they indicate that the legislature did not intend on overthrowing long-established principles of law in creating the new statute.

This court looked at Fuentes and Formula A,B, and C .They determine that Formula A is still appropriate under SB 899.

They concluded this is a conclusive presumption. There are now “other factors” which can result in apportiionment.

They then analyzed the Dykes decision. The court indicated the removal of the language in former Labor Code section 4750 did not reject the Fuentes ruling.

They also looked at the legislative history of SB 899 and the policy of hiring and retaining workers. They concluded Formula A and Fuentes should still be followed


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