PERMANENT DISABILITY - Application of the old v. new rating schedule–Labor Code §46609d)–In this case, employer wrongly denied the claim, and temporary disability was eventually ordered dating back to 2004. Had the claim been accepted on a timely basis, there would be no question that the Labor Code §4061 notice was required to be sent prior to January 1, 2005. Relying on liberal construction in favor of the injured worker under Labor Code §3202 would mitigate in favor of applying the old rating schedule where it would otherwise be applicable but for the wrongful denial of the claim. Blue Shield of California v. Workers' Compensation Appeals Board (Margaret Riessen) 10 WCAB Rptr. 10,131 [Writ Denied]

PERMANENT DISABILITY - Application of old vs. new rating schedule–Labor Code §4660(d)–A pre-2005 report of a treating physician must indicate the existence of permanent disability for the 1997 permanent disability rating schedule to apply. In this case, there was an indication of the existence of permanent disability when the treating physician stated: "It is my medical opinion that within a reasonable medical probability, the patient has suffered a permanent disability as a result of the cumulative trauma injury, but the level of permanent disability will be addressed in a permanent and stationary report." (See State Compensation Insurance Fund v. Workers' Comp. Appeals Bd. (2007) 146 Cal.App.4th 1311, 9 WCAB Rptr. 10,023.) County of Los Angeles v. Workers' Compensation Appeals Board (Anita Lio) 10 WCAB Rptr. 10,117 [Writ Denied]

PERMANENT DISABILITY - Apportionment–Labor Code §4663–The apportionment provisions of SB 899 apply to all cases that were not final as of the time of its April 19, 2004 enactment, regardless of the date of injury. (See Rio Linda Union School Dist. v. Workers' Comp. Appeals Bd. (Scheftner) (2005) 131 Cal.Appl.4th 517, 7 WCAB Rptr. 10,227.) [Writ Denied]

PERMANENT DISABILITY - Apportionment–Labor Code §4663–A medical opinion must disclose the physician's familiarity with the concept of apportionment, describe in detail the exact nature of the apportionable disability and set forth the basis of the opinion so that the WCJ can determine whether the physician is properly apportioning under correct legal principles. (See E.L. Yeager v. Workers' Comp. Appeals Bd. (Gatten) (2006) 145 Cal.App.4th 922, 8 WCAB Rptr. 10,227.) Emiliano Morales v. Workers' Compensation Appeals Board, Etivista Concrete 10 WCAB Rptr. 10,116[Writ Denied]

PERMANENT DISABILITY - Application of the old vs. new rating schedule–Labor Code §4660(d)–Must 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 within the meaning of Labor Code §4660(d)? Wayne Lewis v. Workers' Compensation Appeals Board, Beutler Heating and Air 10 WCAB Rptr. 10,111 [Writ Granted]

PERMANENT DISABILITY - Apportionment to pathology and asymptomatic prior conditions-Labor Code §4663-The language of the newly enacted Labor Code §4663 providing for apportionment of permanent disability caused by "other facts both before and subsequent to the industrial injury, including prior industrial injuries" allows apportionment not only of permanent disability that could have been apportioned prior to SB 899, but also of disability that formerly could not have been apportioned, such as pathology and asymptomatic prior conditions. (See Escobedo v. Marshalls (2005) 7 WCAB Rptr. 10,143 [en banc].) [Writ Denied]

PERMANENT DISABILITY - Apportionment to pathology and asymptomatic prior conditions-Labor Code §4663-Any apportionment to non-industrial causation under Labor Code §4663 must be based on substantial medical evidence. The physician's apportionment opinion must be framed in terms of reasonable medical probability, it must not be speculative, it must be based on pertinent facts and on an adequate examination and history and it must set forth reasoning in support of the conclusions. (See Escobedo v. Marshalls (2005) 7 WCAB Rptr. 10,143 [en banc].) [Writ Denied]

PERMANENT DISABILITY - Apportionment to pathology and asymptomatic prior conditions-Labor Code §4663-A number of factors must be considered when assessing a physician's apportionment opinion in a pre-existing degenerative disease case including but not limited to: (1) the severity of the pre-existing degenerative condition; (2) the mechanics of the injury; (3) the nature and extent of any pre-injury symptoms and treatment; and (4) the nature and extent of any pre-injury work restrictions or lost work time. (See Escobedo v. Marshalls (2005) 7 WCAB Rptr. 10,143 [en banc], Meszaros v. Workers' Comp. Appeals Bd. (2006) 8 WCAB rptr. 10,182 [writ denied].) Deborah Kos v. Workers' Compensation Appeals Board, State Compensation Insurance Fund 10 WCAB Rptr. 10,114[Writ Denied]

PERMANENT DISABILITY - Old vs. New rating schedule-Labor Code §4660(d)-A medical-legal report issued before January 1, 2005 need not state that the claimant is permanent and stationary to trigger the old rating schedule. It is only necessary for the pre-2005 report to 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 labor market. (See Genlyte Group LLC v. Workers' Comp. Appeals Bd. (Zavala) (2008) 158 Cal.App.4th 705, 10 WCAB Rptr. 10,003.) Tenet/Doctors Medical Center v. Workers' Compensation Appeals Board (Bonnie Reddrick) 10 WCAB Rptr. 10,105 ___Cal.App.4th___

PERMANENT DISABILITY - Old vs. new rating schedule-Labor Code §4660(d)-If an injured worker cannot return to their usual and customary occupation because of an industrial injury, there must exist residual disability preventing their return to work, which disability would be an indication of permanent disability. [In this case, the treating physician after performing an anterior cervical discectomy with bilateral nerve root decompression, as well as interbody fusion at C3-4 and C6-7, indicated that he anticipated that applicant would need vocational rehabilitation post-surgery.] [Writ Denied]

PERMANENT DISABILITY - Old vs. new rating schedule-Labor Code §4660(d)-The American Medical Association Guides to Evaluation of Permanent Impairment provide that spinal surgery in and of itself constitutes a ratable factor of permanent disability. City and County of San Francisco v. Workers' Compensation Appeals Board (Cindy Wagner) 10 WCAB Rptr. 10,081 [Writ Denied]

PERMANENT DISABILTIY - Old v. new rating schedule–Labor Code §4660(d)–A report of a treating physician indicates the existence of permanent disability when the physician's diagnosis of a tibial fracture and partial lateral meniscectomy was supported by objective evidence in the form of x-rays and an MRI study. [The AMA Guides to Evaluation of Permanent Impairment, 5th edition, notes that both a tibial fracture and a partial lateral meniscectomy produce permanent disability in the form of whole-person impairment.] [Writ Denied]

PERMANENT DISABILTIY - Old v. new rating schedule–Labor Code §4660(d)–The duty to provide a section 4061 notice arises with the last payment of temporary disability indemnity. [In this case, payment of temporary disability indemnity in the form of Labor Code §4850 benefits was not continuous from the time of injury to a date after January 1, 2005. The payment of these benefits was terminated by the employer on October 25, 2004 and the section 4061 notice was given at that time.] City of Santa Clara v Workers' Compensation Appeals Board (Anthony Layton) 10 WCAB Rptr. 10,063 [Writ Denied]

PERMANENT DISABILITY Old vs. new rating schedule–Labor Code §4660(d)–A comprehensive medical-legal report or treating physician's report does not have to state the injured worker's condition has reached permanent and stationary status to indicate the existence of permanent disability within the meaning of Labor Code §4660(d). (See Genlyte Group LLC and St. Paul Travelers v. Workers' Compensation Appeals Board (Maria Zavala) ____Cal.App.4th ____, 10 WCAB No. 10.003.) Virginia Surety, Inc. v. Workers' Compensation Appeals Board (Larry Wragg) 10 WCAB Rptr. 10,056 ___Cal.App.4th___

PERMANENT DISABILITY - Application of the new vs. old rating schedule–Labor Code §4660(d)–Does a WCJ have the discretion to determine whether a medical report issued prior to Jan. 1, 2005 is substantial evidence indicating the existence of permanent disability? Joan Newlands v. Workers' Compensation Appeals Board, Marriott Vacation International 10 WCAB Rptr. 10,047 [Writ Granted]

PERMANENT DISABILITY - Application of old vs. new rating schedule-Labor Code §4066(d)-The injured worker's permanent and stationary status is not required before a physician's report can indicate the existence of permanent disability under Labor Code §4660(d). (See Genlyte Group LLC v. Workers' Comp. Appeals Bd. (Zavala) (2008) _____Cal.App.4th ____, 10 WCAB Rptr. 10,003.) ___Cal.App.4th___

PERMANENT DISABILITY - Application of old vs. new rating schedule-Labor Code §4066(d)-The duty of the employer to give notice of permanent disability indemnity pursuant to Labor Code §4061(a) arises with the last payment of temporary disability indemnity. (See Pendergrass v. Duggan Plumbing (2007) 9 WCAB Rptr. 10,118 [en banc]; Energetic Painting and Drywall, Inc. v. Workers' Comp. Appeals Bd. (Ramirez) (2007) 153 Cal.App.4th 633, 9 WCAB Rptr. 10,251.) Zenith Insurance Co. v. Workers' Compensation Appeals Board (Randolph Cugini) 10 WCAB Rptr. 10,040 ___Cal.App.4th___

PERMANENT DISABILITY - Rating a hearing loss–The level of disability resulting from a hearing loss is adjusted by the ability to provide correction with a hearing aid. In some occupations, the use of a hearing aid actually makes a hearing impairment greater because of amplified noises. Generally, hearing amplification cannot be used when the wearing of hearing protection is required by a specific occupation. Wilson Young v. Workers' Compensation Appeals Board, Spectrasite Communications, Inc. 10 WCAB Rptr. 10,032 [Writ Denied]

PERMANENT DISABILITY - Old vs. new rating schedule–Labor Code §4660(d)–The use of the old permanent disability rating schedule is warranted when a treating physician's report issued prior to January 1, 2005 indicates the existence of permanent disability. [In this case, the treating physician's report showed that applicant had "foot drop," atrophy and an 8 millimeter disc protrusion at L5-S1 shown on an MRI.] City of Daly City v. Workers' Compensation Appeals Board (Daniel Brent) 10 WCAB Rptr. 10,032 [Writ Denied]

PERMANENT DISABILITY – Old vs. new rating schedule–Labor Code §4660(d)–A comprehensive medical-legal report, like a treating physician's report, must contain an indication of the existence of permanent disability to trigger use of the old rating schedule. (See Costco Wholesale Corp. v. Workers' Comp. Appeals Bd. (Chavez) (2007) 151 Cal.App.4th 750, 9 WCAB Rptr. 10,184.)

PERMANENT DISABILITY - Old vs. new rating schedule–Labor Code §4660(d)–A comprehensive medical-legal report or treating physician's report does not have to state the injured worker's condition has reached permanent and stationary status to indicate the existence of permanent disability within the meaning of Labor Code §4660(d). Genlyte Group LLC and St. Paul Travelers v. Workers' Compensation Appeals Board (Maria Zavala) 10 WCAB Rptr. 10,003 ___Cal.App.4th___

PERMANENT DISABILITY - Old vs. new rating schedule—Labor Code §4660(d)—The old rating schedule will apply when, before January 1, 2005, there has been a treating physician's report indicating the status of the employee's ratable disability is permanent and stationary. (See Vera v. Workers' Comp. Appeals Bd. (2007) 154 Cal.App.4th 996, 9 WCAB Rptr. 10,241) Mary Compton v. Workers' Compensation Appeals Board, Wal-Mart 10 WCAB Rptr. 10,010 [Writ Denied]

PERMANENT DISABILITY - Application of the old vs. new rating schedule–Labor Code §4660(d)–If an injured employee cannot return to his/her usual and customary occupation because of an industrial injury, there must exist residual disability preventing his/her return to work. By its very nature, such disability would be permanent disability. City and County of San Francisco v. Workers' Compensation Appeals Board (Cindy Wagner) 10 WCAB Rptr. 10,013 [Writ Denied]

PERMANENT DISABILITY - Old v. new rating schedule–In this case a comprehensive medical-legal report in April 2004, describing the factors of permanent disability to the back was sufficient to trigger an exception to Labor Code §4660(d) warranting the use of the old rating schedule. Since this was a single injury to multiple body parts, the various body parts did not need to be permanent and stationary at the same time. New United Motor Manufacturing, Inc. v. Workers' Compensation Appeals Board (Frank Maricich) 10 WCAB Rptr. 10,014[Writ Denied]

PERMANENT DISABILITY - Labor Code §4660(d)-Application of the Old vs. New Permanent Disability Rating Schedule-The new rating schedule applies to injuries prior to January 1, 2005, if none of the exceptions of Labor Code §4660(d) are applicable. Tanimura & Antle v. Workers' Compensation Appeals Board (Avelino Lopez) 9 WCAB Rptr. 10,372 ___Cal.App.4th___

PERMANENT DISABILITY - Labor Code §4660(d)-Application of the Old vs. New Permanent Disability Rating Schedule-The new rating schedule applies to injuries prior to January 1, 2005, if none of the exceptions of Labor Code §4660(d) are applicable. Ramiro Serrano v. Workers' Compensation Appeals Board, Stevens Transportation 9 WCAB Rptr. 10,374 ___Cal.App.4th___

PERMANENT DISABILITY - Labor Code §4660(d)–Application of old vs. new rating schedule–Did the Appeals Court err when it held that the duty to give the Labor Code §4061 arises with the first payment of temporary disability indemnity? Epsilon Plastics, Inc. v. Workers' Compensation Appeals Board (Zoran Mihailovic) 9 WCAB Rptr. 10,375 [Writ Granted]

PERMANENT DISABILITY Application of old vs. new rating schedule–Labor Code §4660(d)–If the last payment of temporary disability indemnity was made for any period of temporary disability ending before January 1, 2005, then the 1997 rating schedule applies to determine the extent of permanent disability, pursuant to Labor Code §4660(d)m because Labor Code §4061 requires the employer to provide the injured worker with a notice regarding permanent disability together with the last payment of temporary disability indemnity. (See Pendergrass v. Duggan Plumbing [Pendergrass II] (2007) (WCAB Rptr. 10,118 [en banc].) Josefa Magallon v. Workers' Compensation Appeals Board, Narsi's Hofbrau 9 WCAB Rptr. 10,365 [Writ Denied]

PERMANENT DISABILITY - Application of old vs. new rating schedule-Labor Code §4660(d)-Notice provided by the employer informing the injured worker that she was not entitled to permanent disability benefits is sufficient to trigger the Labor Code §4061 notice exception despite the fact that no temporary disability indemnity was paid. [In this case, the notice provided by the employer stated that permanent disability benefits would not be paid due to the applicant's failure to attend a medical evaluation to assess her permanent disability.] Xybernet, Inc. v. Workers' Compensation Appeals Board (Shannon Hughes) 9 WCAB Rptr. 10,359 [Writ Denied]

PERMANENT DISABILITY - Old v. new rating schedule-When prior to January 1, 2005, a treating physician issues a report finding the injured worker's condition to be permanent and stationary and describes factors of permanent disability, the old Permanent Disability Rating Schedule applies. County of Inyo v. Workers' Compensation Appeals Board (Grace Douthitt) 9 WCAB Rptr.10,350 [Writ Denied]

PERMANENT DISABILITY - Application of old vs. new rating schedule–Labor Code §4660(d)–The new rating schedule applies when none of the exceptions in Labor Code §4660(d) apply. [In this case, a March 15, 2004 injury was properly rated under the new rating schedule because no comprehensive medical-legal report was obtained prior to January 1, 2005 and the employer was not required to give the Labor Code §4061 notice prior to January 1, 2005.] (See Costco Wholesale Corp. v. Workers' Comp. Appeals Bd. (Chavez) (2007) 151 Cal.App.4th 148, 9 WCAB Rptr. 10,184.) Horacio Montoya Valdez v. Workers' Compensation Appeals Board, Bonanza Farms 9 WCAB Rptr. 10,340 ___Cal.App.4th___

PERMANENT DISABILITY - Where successive injuries to the same part of the body became permanent and stationary at the same time, the injured worker is entitled to a permanent disability award based on the combined disability at the permanent disability rates applicable at the time the last injury or the successive injuries giving rise to such benefits occurred. (See Parker v. Workers' Comp. Appeals Bd. (1992) 9 Cal.App.4th 1636.) County of San Bernardino v. Workers' Compensation Appeals Board (Robert Schroeder) 9 WCAB Rptr. 10,323 ___Cal.App.4th___

PERMANENT DISABILITY - The finding of 100% total disability in this case was properly supported by substantial medical evidence and was based on a review of the entire, extensive medical record, the reports of physicians, the opinion of an Independent Vocational Expert, and the WCJ's numerous and continuing observations of the applicant at trial over a period of nearly 10 years. Paramount Studios v. Workers' Compensation Appeals Board (Maria Doest) 9 WCAB Rptr. 10,333 [Writ Denied]

PERMANENT DISABILITY - Determining the extent of disability-An injured worker's inability to put his vocational rehabilitation training to use is evidence of an increase in permanent disability. (See LeBoeuf v. Workers' Comp. Appeals Bd. (1983) 34 Cal.3d 234.) [In this case, the injured worker's prior award of permanent disability was predicated on medical evidence that he was capable of gainful employment following his participation in vocational rehabilitation. The subsequent evidence showed that such participation was unsuccessful to return the worker to gainful employment and this factor was properly considered when determining the extent of permanent disability.] United Airlinesv. Workers' Compensation Appeals Board (Nick Milivojevich) 9 WCAB Rptr. 10,332 [Writ Denied]

PERMANENT DISABILITY - Permanent disability for hip replacement–Under the AMA Guides to the Evaluation of Permanent Disability, five categories of results from hip replacement surgery are used to numerically determine the results of the replacement surgery. The total number of points is used to determine the impairment and range of permanent impairment from total hip replacement surgery from 15% to 30%. Every total hip replacement has permanent impairment and has permanent disability at the time of the hip replacement surgery. Santa Rosa School District v. Workers' Compensation Appeals Board (Judy Hagle) 9 WCAB Rptr. 10,333 [Writ Denied]

PERMANENT DISABILITY - Old vs. new rating schedule-LaborCode §4660(d)-When no temporary disability indemnity is paid, the employer is not required to give the notice required by Labor Code §4061 and the exception to Labor Code §4660(d) is not triggered. (See Costco v Workers' Comp. Appeals Bd. (Chavez) (2007) 151 Cal.App.4th 148, 9 WCAB Rptr. 10,184.) Monica Ledesma v. Workers' Compensation Appeals Board, Firestone Vineyard 9 WCAB Rptr. 10,315 [Writ Denied]

PERMANENT DISABILITY - New vs. Old rating schedule–The employer's duty to provide notice pursuant to Labor Code §4061 must be provided at the time of the last payment of temporary disability. (See Costco Wholesale Corp. v. Workers' Comp. Appeals Board (Chavez) (2007) 151 Cal.App.4th 148, 9 WCAB Rptr. 10,184.) Travelers Indemnity Company of Illinois v. Workers' Compensation Appeals Board (Kathy Bryer) 9 WCAB Rptr. 10,311 309 ___Cal.App.4th___

PERMANENT DISABILITY - Application of the old vs. new Permanent Disability Rating Schedule-Labor Code §4660(d)-Did the Appeals Board err in its holding that the old rating schedule applies to a case when payments of temporary disability indemnity have commenced prior to January 1, 2005?City of Galt v. Workers' Compensation Appeals Board (Concepcion Ramos) 9 WCAB Rptr. 10,311 309 ___Cal.App.4th___

PERMANENT DISABILITY - Application of the old vs. new rating schedule-Labor Code §4660(d)-Does the employer's duty to provide the notice required by Labor Code §4061 arise at the time of the last payment of temporary disability indemnity? Bed, Bath & Beyond v. Workers' Compensation Appeals Board (Kim Costa) 9 WCAB Rptr. 10,315 [Writ Granted]

PERMANENT DISABILITY New vs. Old rating schedule–A medical report containing only generic statements of statutory language with no reference to the medical facts of the case is not sufficient to qualify as indicating permanent disability. HSR, Inc. v. Workers' Compensation Appeals Board (Estuberto Mariscal) 9 WCAB Rptr. 10,307 ___Cal.App.4th___

PERMANENT DISABILITY - Application of the old vs. new rating schedule-Labor Code §4660(d)-The existence of a report by a treating physician indicating the existence of permanent disability was satisfied when the physician's report documented that applicant's instrumented fusion surgery at L4-5 left the applicant with permanent residual disability, even though the extent of permanent disability could not be determined until the applicant reached permanent and stationary status. Virginia Surety, Inc. v. Workers' Compensation Appeals Board (Larry Wragg) 9 WCAB Rptr. 10,300 [Writ Denied]

PERMANENT DISABILITY - Application of old vs. new rating schedule-Labor Code §4660(d)-If a comprehensive medical-legal report states that the injured worker is a Qualified Injured Worker, does this reference equate to an indication of the existence of permanent disability? For a comprehensive medical-legal report to indicate the existence of permanent disability, does it require the applicant to be permanent and stationary? [Writ Granted]

PERMANENT DISABILITY - Application of old vs. new rating schedule-Labor Code §4066(d)-Did the Appeals Board rely on two erroneous application of two exceptions in Labor Code §4660(d), concluding that the old rating schedule applied to the permanent disability evaluation in this case? Zenith Insurance Co. v. Workers' Compensation Appeals Board (Randolph Cugini) 9 WCAB Rptr. 10,279 [Writ Granted]

PERMANENT DISABILITY - Apportionment–Labor Code §4663–Evidence of prior disability or modified work is no longer a prerequisite to apportionment, degenerative disease can be asymptomatic and still apportionable under the new law, and a medical opinion cannot be disregarded as speculative when it is based on the physician's expertise in evaluating the facts. (See E.L. Yeager Construction v. Workers' Comp. Appeals Bd. (Gatten) 145 Cal.App.4th 922, 8 WCAB Rptr. 10,362.) [Writ Denied]

PERMANENT DISABILITY - Calculation of permanent disability–The calculation of disability indemnity may be deferred beyond the five-year statutory period. (See Erickson v. So. Cal. Permanente Medical Group (2006) 8 WCAB Rptr. 10,034 [Significant Panel Decision].) Wilda Simpson v. Workers' Compensation Appeals Board, Sierra Pacific Industries 9 WCAB Rptr. 10,283 [Writ Denied]

PERMANENT DISABILITY - Comprehensive medial-legal report–Comprehensive medical-legal report is not separately defined in Labor Code §4660 and therefore the only reasonable interpretation of that phrase is that it is the report prepared in accordance with the comprehensive medical-legal evaluation defined in Title 8, California Code of Regulations § 9793(c) [by (1) a qualified medical evaluator pursuant to Labor Code §139.2(h) or (2) by a QME, AME or primary treating physician for purposes of proving or disproving a contested claim.] [Writ Denied]

PERMANENT DISABILITY - Medical report indicating the existence of permanent disability–An indication of the existence of permanent disability is not the same as the existence of permanent disability. [In this case, the QME's report stated that in the event the injured worker chose to forego surgery, she should be considered permanent and stationary and then listed a number of factors of permanent disability.] Tenet/Doctors Medical Center v. Workers' Compensation Appeals Board (Bonnie Reddrick) 9 WCAB Rptr. 10,281 282 [Writ Denied]

PERMANENT DISABILITY - Application of old vs. new rating schedule–Labor Code §4660(d)–A comprehensive medical-legal report prepared prior to January 1, 2005 must indicate the existence of permanent disability to apply the old rating schedule. (See Costco Wholesale Corp. v. Workers' Comp. Appeals Bd. (2007) 151 Cal.App.4th 148.) ___Cal.App.4th___

PERMANENT DISABILITY - Application of old vs. new rating schedule–Labor Code §4660(d)–The duty to give notice under Labor Code §4061 arises with the last payment of temporary disability. (See Costco Wholesale Corp. v. Workers' Comp. Appeals Bd. (2007) 151 Cal.App.4th 148.) Zenith Insurance Company v. Workers' Compensation Appeals Board (Catherine Watts) 9 WCAB Rptr. 10,257 ___Cal.App.4th___

PERMANENT DISABILITY - Application of old vs. new rating schedule–Labor Code §4660(d)–The duty to give notice under Labor Code §4061 arises with the last payment of temporary disability. (See Costco Wholesale Corp. v. Workers' Comp. Appeals Bd. (Chavez) (2007) 151 Cal.App.4th 148.) ___Cal.App.4th___

PERMANENT DISABILITY - Old vs. New Rating Schedule–Labor Code §4660–For all pending cases involving injuries occurring prior to January 1, 2005, the new rating schedule must be applied unless one of the listed exceptions has been established. Aldi v. Carr, McClellan, Ingersoll, Thompson & Horn (2006) 8 WCAB Rptr. 10,199.) Kyle Scott v. Workers' Compensation Appeals Board, 3B's Truck and Auto Plaza 9 WCAB Rptr. 10,267 [Writ Denied]

PERMANENT DISABILITY - Conclusive presumption regarding prior award of permanent disability–Labor Code §4664(d) –In this case, the prior award of permanent disability was based upon subjective complaints only pursuant to a stipulation of the parties, and the permanent disability caused by the subsequent injury was based only on work restrictions, there was no overlap between work restrictions and subjective factors of disability, the WCJ properly denied apportionment.City of Los Angeles Police Department v. Workers' Compensation Appeals Board (Victor Collelo) 9 WCAB Rptr. 10,269[Writ Denied]

PERMANENT DISABILITY - Old v. new rating schedule–Labor Code 4660(d)–The use of the old rating schedule is mandated when a comprehensive medical-legal report is generated prior to January 1, 2005. Pursuant to Cal. Code of Regs Title 8, §9793(g)(3) an initial report constitutes a comprehensive medical-legal report, if (1) it is prepared by a physician as defined in Labor Code §3209.3 and (2) the report is capable of proving or disproving a disputed medical fact essential to the resolution of a contested claim. Robert F. Kennedy Medical Center v. Workers' Compensation Appeals Board (Mirta Williams) 9 WCAB Rptr. 10,270 [Writ Denied]

PERMANENT DISABILITY - Application of new vs. old rating schedule–Under Labor Code §4660(d), a comprehensive medical-legal report, like the treating physician's report, must contain an indication of permanent disability to trigger the use of the pre-2005 rating schedule. (See Costco Wholesale Corp. v. Workers' Comp. Appeals Bd. (Chavez) (2007) 151 Cal.App.4th 148, 9 WCAB Rptr. 10,184.) Washington Mutual Bank v. Workers' Compensation Appeals Board (Judy Helm) 9 WCAB Rptr. 10,239 ___Cal.App.4th___

PERMANENT DISABILITY - Applicability of the new Permanent Disability Rating Schedule–Labor Code §4660–For all pending cases involving injuries occurring before January 1, 2005, the new rating schedule must be applied unless one of the exceptions listed in Labor Code §4660(d) has been established (See Aldi v. Carr, McClellan, Ingersoll, Thompson & Hern (2005) 8 WCAB Rptr. 10,199 [en banc].) Rachel Chang v. Workers' Compensation Appeals Board, State Compensation Insurance Fund 9 WCAB Rptr. 10,237 ___Cal.App.4th___

PERMANENT DISABILITY - Applicability of new permanent disability rating schedule–Labor Code §4660(d)–In interpreting Labor Code §4660(d), the employer's duty to provide the Labor Code §4061 notice attaches with the last payment of temporary disability. (See Costco Wholesale Corp. v. Workers' Comp. Appeals Bd. (Chavez) (2007) 151 Cal.App. 4th 148, 9 WCAb Rptr. 10,184.) Health Net, Inc. v. Workers' Compensation Appeals Board (Bente Hansen) 9 WCAB Rptr. 10,243 ___Cal.App.4th___

PERMANENT DISABILITY - Use of vocational expert for rating permanent disability–Is it proper for a vocational rehabilitation specialist to offer expert opinion in rebuttal to a recommended rating as to an injured worker's ability to compete in the open labor market, based on medical restrictions set forth in the WCJ's rating instructions together with protocols used by vocational rehabilitation professionals to assess and analyze an individual's ability to work? 246 [Writ Granted]

PERMANENT DISABILITY - Two injuries combine to cause permanent disability-When two injuries combine to cause an overall level of permanent disability in excess of 70%, it is appropriate to allocate liability for the progressive permanent disability and the life pension between the two injuries. (See Nuelle v. Workers' Comp. Appeals Bd. 92 Cal.App. 3d 239.) This is true even in cases where the earlier injury has been the subject of a separate award for a specific level of permanent disability. (See Harold v. Workers' Comp. Appeals Bd. (1980) 100 Cal.App.3d 772.) North Monterey County Unified School District v. Workers' Compensation Appeals Board (Robert Leetch) 9 WCAB Rptr. 10,250[Writ Denied]

PERMANENT DISABILITY - Application of the old vs. new Permanent Disability Rating Schedule-Labor Code §4660(d)-Did the Appeals Board err in holding that the old rating schedule applies to a case when payments of temporary disability indemnity have commenced prior to January 1, 2005? San Francisco Marriott v. Workers' Compensation Appeals Board (Antonio Yamat) 9 WCAB Rptr. 10,201 [Writ Granted] City of Galt v. Workers' Compensation Appeals Board (Concepcion Ramos) 9 WCAB Rptr. 10,202 [Writ Granted] Minatta Transportation Company v. Workers' Compensation Appeals Board (Paul Lanning) 9 WCAB Rptr. 10,202 [Writ Granted]

PERMANENT DISABILITY - Application of old vs. new Permanent Disability Rating Schedule–The employer must give the Labor Code §4061 notice at the time of the last payment of temporary disability is made. Therefore, if the last payment of temporary disability is made after January 1, 2005, the new rating schedule must be used to calculate permanent disability. Zenith Insurance Company v. Workers' Compensation Appeals Board (Nader Azizi) 9 WCAB Rptr. 10,199 ___Cal.App.4th___

PERMANENT DISABILITY -Application of old vs. new Permanent Disability Rating Schedule–Under Labor Code §4660(d), a medical-legal report, like the treating physician's report, must contain an indication of permanent disability to trigger the use of the pre-2005 rating schedule. ___Cal.App.4th___

PERMANENT DISABILITY - Application of old vs. new Permanent Disability Rating Schedule–The employer must give the Labor Code §4061 notice at the time the last payment of temporary disability is made. Therefore, if the last payment of temporary disability is made after January 1, 2005, the new rating schedule must be used to calculate permanent disability. Costco Wholesale Corporation v. Workers' Compensation Appeals Board (Jorge Chavez) 9 WCAB Rptr. 10,184___Cal.App.4th___

PERMANENT DISABILITY - Labor Code §4660(d)-Application of the Old vs. New Permanent Disability Rating Schedule-Did the Appeals Board err when it distinguished between when the duty under Labor Code §4061 arises and when the duty is required to be executed? Tanimura & Antle v. Workers' Compensation Appeals Board (Avelino Lopez) 9 WCAB Rptr. 10,172 Energetic Painting and Drywall Company v. Workers' Compensation Appeals Board (Jose Ramirez) 9 WCAB Rptr. 10,174 Travelers Indemnity Company of Illinois v. Workers' Compensation Appeals Board (Kathy Bryer) 9 WCAB Rptr. 10,174 City of Chico v. Workers' Compensation Appeals Board (Daphanie Burnham) 9 WCAB Rptr. 10,174 [Writ Granted]

PERMANENT DISABILITY - New vs. Old rating schedule–Is a medical report containing only generic statements of statutory language with no reference to the medical facts of the case sufficient to qualify as indicating permanent disability" HSR, Inc. v. Workers' Compensation Appeals Board (Estuberto Mariscal) 9 WCAB Rptr. 10,156 [Writ Granted]

PERMANENT DISABILITY - Application of old vs. new rating schedule–Labor Code §4660(d)–A treating physician's report stating that the injured worker is a Qualified Injured Worker is a report indicating the existence of permanent disability. Tokio Marine and Fire Insurance Company v. Workers' Compensation Appeals Board (Carmela Burnside) 9 WCAB Rptr. 10,161 [Writ Denied]

PERMANENT DISABILITY - Application of old vs. new Permanent Disability Rating Schedule–Labor Code §4660(d)–Did the Appeals Board's interpretation of Labor Code §4660(d) properly apply the last antecedent rule of statutory construction? Washington Mutual Bank v. Workers' Compensation Appeals Board (July Helm) 9 WCAB Rptr. 10,127 [Writ Granted]

PERMANENT DISABILITY - Application of old vs. new Permanent Disability Rating Schedule–Labor Code §4660(d)–Did the Appeals Board err by construing Labor Code §4061 to create an obligation to send notice concerning eligibility for permanent disability benefits before the last payment of temporary disability indemnity? Zenith Insurance Company v. Workers' Compensation Appeals Board (Nader Azizi) 9 WCAB Rptr. 10,124 [Writ Granted]

PERMANENT DISABILITY - Application of old vs. new rating schedule–For all pending cases involving injuries occurring prior to January 1, 2005, the revised schedule must be applied unless one of the exceptions listed in Labor Code §4660(d) has been established. One exception is the existence of a comprehensive medical/legal report issued prior to January 1, 2005, which indicates the existence of permanent disability. (See Baglione v. Hertz Car Sales (2007) 9 WCAB Rptr. 10,119 [en banc].) [In this case, a comprehensive medical/legal report indicated that applicant was a Qualified Injured Worker, meaning that she was medically precluded from returning to her date of injury employment.] Eskaton Properties v. Workers' Compensation Appeals Board (Betty Ongsarte) 9 WCAB Rptr. 10,133 [Writ Denied]

PERMANENT DISABILITY - While a vocational rehabilitation opinion may be relevant in determining the level of permanent disability, a vocational rehabilitation opinion does not establish an employee's level of permanent disability. [In this case, the WCJ properly rated the injured worker's disability based on the medical evidence without relying on a vocational rehabilitation counselor's opinion.] Earl Linam v. Workers' Compensation Appeals Board, Dennis Carey dba Dennis Carey Drywall 9 WCAB Rptr. 10,111___Cal.App.4th___

PERMANENT DISABILITY - Application of the old vs. new rating schedule–Labor Code §4660(d)–The existence of permanent disability is properly indicated when the report reflects anterior cruciate ligament surgery was performed on the injured worker. The American Medical Association Guides to the Evaluation of Permanent Impairment relating to impairment estimates for certain lower-extremity impairments states that such surgery would result in the existence of a percentage of impairment or permanent disability. Cabernet Construction v. Workers' Compensation Appeals Board (Mark Conroy) 9 WCAB Rptr. 10,101 [Writ Denied]

PERMANENT DISABILITY - Application of old v. new Permanent Disability Rating Schedule–Labor Code §4660(d)–Labor Code §4061 requires notice at the time the employer makes the last payment of temporary disability and does not require any notice at the inception of temporary disability payments. In this case, because the employer continued to pay temporary disability past the January 1, 2005 effective date of the statute, the new rating schedule was applied to determine permanent disability. Jennifer Combs v. Workers' Compensation Appeals Board, All Home Care/YPS Home Care 9 WCAB Rptr. 10,096 [Writ Denied]

PERMANENT DISABILITY - Applicability of the new Permanent Disability Rating Schedule–Labor Code §4660–A treating physician's report that merely mentions a condition that could result in permanent disability does not qualify as a treating physician's report that indicates the existence of permanent disability. (See State Compensation Insurance Fund v. Workers' Comp. Appeals Bd. (Echieverria) (2007) 9 WCAB Rptr. 10,023.) Trader Joe's Company v. Workers' Compensation Appeals Board (Rick Lee Evets) 9 WCAB Rptr.10,072 ___Cal.App.4th___

PERMANENT DISABILITY - Application of old vs. new Permanent Disability Rating Schedule–Labor Code §4660(d)–Did the Appeals Board's interpretation of Labor Code §4660(d) properly apply the last antecedent rule of statutory construction? Costco Wholesale Corporation v. Workers' Compensation Appeals Board (Jorge Chavez) 9 WCAB Rptr. 10,075 [Writ Granted]

PERMANENT DISABILITY - New vs. Old Rating Schedule-Labor Code §4660(d)-The 1997 rating schedule applies to a pre-January 1, 2005 injury if there is a treating physician's report indicating the existence of permanent disability issued prior to January 1, 2005. (See Aldi v. Carr, McCellan, Ingersoll, Thompson & Horn (2006) 8 WCAB Rptr. 10,199 [en banc].) [In this case, the treating physician's report referring to an L4-L5 herniated disc, footdrop, and need for use of a cane was indicative of permanent disability. In addition, the treating physician's permanent and stationary report in April 2005 documented that applicant's symptoms were the same as in the previous year.] [Writ Denied]

PERMANENT DISABILITY - New vs. Old Rating Schedule-Labor Code §4660(d)-The 1997 rating schedule applies when the employer is required to provide the notice required by Labor Code §4061 to the injured worker. The duty to provide this notice arises with the first payment of temporary disability and if the first date of compensable temporary disability occurred prior to January 1, 2005, the old rating schedule applies to determine the extent of permanent disability. (See Pendergrass v. Duggan Plumbing (2006) 9 WCAB Rptr. 10,051 [en banc].) Zurich American Insurance v. Workers' Compensation Appeals Board (Armanda Nunes) 9 WCAB Rptr. 10,083 [Writ Denied]

PERMANENT DISABILITY - Applicability of the new Permanent Disability Rating Schedule–Labor Code §4660–Did the Appeals Board err when it concluded that reports prior to January 1, 2005 from treating physicians indicated the existence of permanent disability and on that basis applied the old Permanent Disability Rating Schedule? Trader Joe's Company v. Workers' Compensation Appeals Board (Rick Lee Evets) 9 WCAB Rptr. 10,030 [Writ Granted]

PERMANENT DISABILITY-Applicability of the new Permanent Disability Rating Schedule–Labor Code §4660–Does the new Permanent Disability Rating Schedule apply only to injuries sustained after the adoption of the new rating schedule? Rachel Chang v. Workers' Compensation Appeals Board, State Compensation Insurance Fund 9 WCAB Rptr. 10,029 [Writ Granted]

PERMANENT DISABILITY - Labor Code §4660–Permanent disability rating schedule–For injuries occurring before January 1, 2005, the 1997 permanent disability rating schedule applies if there is either a comprehensive medical-legal report of a report by a treating physician indicating the existence of permanent disability. (See Aldi v. Carr, McClellan, Ingersoll, Thompson & Horn (2006) 8 WCAB Rptr. 10,199 (en banc).] In this case the applicant's treating physician, in a report dated November 8, 2004, opined that he "anticipated that the patient will have permanent residuals." This report was considered by the Appeals Board as a "report by a treating physician indicating the existence of permanent disability" within the meaning of Labor Code §4660(d). Volt Service Group v. Workers' Compensation Appeals Board (Isidro Sanchez) 8 WCAB Rptr. 10,372 [Writ Denied]

PERMANENT DISABILITY-Application of new permanent disability rating schedule–The 2005 permanent disability rating schedule applies if, before January 1, 2005, there has been either (1) no comprehensive medical legal report or (2) the employer is not required to provide the notice required by Labor Code §4061 to the injured worker. (See Aldi v. Carr, McClellan, Ingersoll, Thompson & Horn (2006) 8 WCAB Rptr. 10,199 [en banc].) Allegis Group v. Workers' Compensation Appeals Board (Jose Garcia) 8 WCAB Rptr. 10,295 [Writ Denied]

PERMANENT DISABILITY- Calculating amount of permanent disability indemnity–Labor Code §§4553 and 4658 provide the statutory basis for calculating permanent disability indemnity based on the worker's percentage of permanent partial disability and average weekly wage. Labor Code §4453 prescribes certain minimum and maximum amounts for average weekly wages. Labor Code §4658 provides, within those minimum and maximum amounts, permanent disability indemnity shall be a weekly amount that is two-thirds of the average weekly wage up to a maximum amount based on the date the injury occurred. (In this case, the WCJ properly concluded that the parties' stipulations on weekly earnings and the permanent disability indemnity rate were inconsistent and that the stipulated indemnity rate violated Labor Code §4658.) (See County of Sacramento v. Workers' Comp. Appeals Bd. (Weatherall) (2000) 77 Cal. App.4th 1114, 2 WCAB Rptr. 10,054.)Goodwill Industries of San Diego v. Workers' Compensation Appeals Board (Coulzin Montoya) 8 WCAB Rptr. 10,071 [Writ Denied]

PERMANENT DISABILITY- Date on which to commence payment—Labor Code §4650(b)—Although Labor Code §139.5(d)(2) allows an injured worker the option to request advances of permanent disability indemnity, when such a request is not made the obligation to begin payment of permanent disability indemnity starts on the day following the date of last payment of VRMA. San Mateo County Transit District v. Workers' Compensation Appeals Board (John Mackie) 8 WCAB Rptr. 10,022 [Writ Denied]

PERMANENT DISABILITY– Occupational group– The occupation that applicant was engaged in at the time of injury is one relevant factor in determining the correct occupational modifier. (See Colton Unified School District v. Workers' Comp. Appeals Bd. (Corwin) (1981) 46 Cal.Comp.Cases 302 [writ denied].) Doctors Hospital of Pinole v. Workers' Compensation Appeals Board (Tracie Ann Schmidt) 7 WCAB Rptr. 10,303 [Writ Denied]

PERMANENT DISABILITY– Presumption of total disability– Labor Code §4662(c) creates presumption of total disability for any injury resulting in "practically total paralysis." Presumption of total disability is conclusive and not rebuttable. (In this case, applicant's pre-existing condition of quadriplegia was conclusively presumed to constitute 100% total disability and the subsequent industrial injury consisting of decubitus ulcers did not give rise to a finding of further permanent disability.) George P. Greco v. Workers' Compensation Appeals Board, Santa Rosa City Schools 7 WCAB Rptr. 10,298 [Writ Denied]

PERMANENT DISABILITY– Petition to reopen for new and further injury– A doctor's report indicating that, had he examined the injured worker at the time of his original award, he would have recommended a greater work limitation than was reflected in the original award, does not constitute good cause to reopen the injured worker's compensation claim for new and further disability. (See Nicky Blair's Restaurant v. Workers' Comp. Appeals Bd. (Marias) (1980) 109 Cal.App.3d 491.) Lisa Ybarra v. Workers' Compensation Appeals Board, Delta Airlines 7 WCAB Rptr. 10,271 [Writ Denied]

PERMANENT DISABILITY– New and further disability– Labor Code §5410– An injured worker may petition to reopen his case within five years of the date of injury on the ground that the original injury has caused a new and further disability. In this case, was the increased disability caused by the applicant's congenital defect rather than the industrial injury? National Staff Network v. Workers' Compensation Appeals Board (Evelyn Mann-Harrison) 7 WCAB Rptr. 10,203 [Writ Granted]

PERMANENT DISABILITY– Rating of a non-scheduled factor of disability–A customary rating of a non-scheduled factor of disability must be rationally related to the applicant's diminished capacity to compete in the open labor market and must be supported by the evidence in light of the entire record. (Nielsen v. Workmen's Comp. Appeals Bd. (1974) 36 Cal.App,3d 756.) Mary Butler v. Workers' Compensation Appeals Board, Broadspire Insurance Companies 7 WCAB Rptr. 10,139

PERMANENT DISABILITY– The determination of permanent disability is a question of fact. (See Fidelity and Casualty Co. v. Workmen's Comp. Appeals Bd. (1967) 252 Cal.App.2d 327.) A permanent disability causes impairment of earning capacity, impairment of the normal use of a member or a competitive handicap in the open market. (See State Comp. Ins. Fund v. Ind. Acc. Com. (Hutchison (1963) 59 Cal.2d 45.) Joseph Chechourka v. Workers' Compensation Appeals Board, California Department of Corrections 7 WCAB Rptr. 10,029

DISABILITY RETIREMENT– Government Code §21156–In determining whether a police officer is mentally incapacitated and entitled to a disability retirement, it must be shown that the police officer is unable to perform the usual duties of a police officer for any California law enforcement agency. (See generally Pearl v. Workers' Comp. Appeals Bd. (2001) 26 Cal.4th 189, 3 WCAB Rptr. 10,211.). [In this case, the Supreme Court pointed out that once the prima facie case is established, the burden shifts to the employer to show that the individual is capable of performing the usual duties of a patrol officer of other California law enforcement agencies, and must also show that similar positions with other California law enforcement agencies are available.] Steven W. Nolan v. City of Anaheim 5 WCAB Rptr. 10,212

PERMANENT DISABILITY– The permanent disability rating received after trial is not conclusive and a WCJ may use discretion and determine a final rating that includes an analysis of the entire disability and possibility of future employment. (See U.S. Auto Stores v. Workers' Comp. Appeals Bd. (Brenner) (1971) 4 Cal. 3d 469.) [In this case, the treating physician opined that if the worker returned to any kind of work, the stress inherent in the work would aggravate the hypertension, which together with hypertensive cardiovascular disease would put the worker in jeopardy of congestive heart failure or a myocardial infarct.] Los Angeles Unified School District v. Workers' Compensation Appeals Board (Thomas Bell) 6 WCAB Rptr. 10,160

PERMANENT DISABILITY– Factors to be considered in determining the percentage of permanent disability include the nature of the physical injury or disfigurement, the employee's age and occupation at the time of injury, with consideration for the employee's diminished ability to compete in the open labor market, and the employee's inability to be vocationally rehabilitated. (See Duke v. Workers' Comp. Appeals Bd. (1988) 204 Cal.App.3d 455.) Keneti Avel v. Workers' Compensation Appeals Board, Separation and Recovery System, Inc., AIG Claims. 6 WCAB Rptr. 10,159

PERMANENT DISABILITY– A permanent disability rating should reflect as accurately as possible an injured employee's diminished ability to compete in the open labor market. The fact that a worker has been precluded from vocational rehabilitation is a significant factor to be taken into account in evaluating his or her potential employability. (See LeBoeuf v. Workers' Comp. Appeals Bd. (1983) 34 Cal.3d 234.) [In this case, the worker's inability to participate in vocational rehabilitation was due to non-industrial factors such as his eighth-grade level education, inability to read or write English, stamina, motivation and physical limitations.] Keneti Avel v. Workers' Compensation Appeals Board, Separation and Recovery System, Inc., AIG Claims. 6 WCAB Rptr. 10,159

PERMANENT DISABILITY– Rating procedure– Any party who is not satisfied with the recommended rating must submit a written objection to the WCJ within seven days of the date of service of the rating, or twelve days if service is made by mail. A waiver occurs by failure to request cross-examination within the service of the rating and submission for decision. (See Neilsen Freight Lines v. Workers' Comp. Appeals Bd. (1980) 113 Cal.App.3d 434.) Daniel Gutierrez v. Workers' Compensation Appeals Board, Serrano & Cone, Inc. 6 WCAB Rptr. 10,110

WCAB PROCEDURE– Permanent disability can result in impairment of earning capacity, impairment of the normal use of a body part or a diminished ability to compete in the open labor market. It is the nature and extent of the disability caused by the injury that is the determining factor rather than the part of the body injured. (See State Comp. Ins. Fund v. Industrial Acc. Com. (Hutchinson) (1963) 35 Cal.2d 45.) Travelers Insurance Company v. Workers' Compensation Appeals Board (Rose Marie Graves) 6 WCAB Rptr. 10,079

WCAB PROCEDURE– Permanent Disability Rating– The raters of the Disability Evaluation Unit are not triers of fact, but are merely expert witnesses who offer their opinions regarding the appropriate rating of the factors of permanent disability framed by the WCJ in rating instructions. (State Compensation Insurance Fund v. Workers' Comp. Appeals Bd. (Stapp) (1978) 81 Cal.App.3d 586.) [In this case, the WCAB panel rejected the recommended permanent disability rating and instead substituted it own opinion regarding the rating of factors of permanent disability and appropriate occupational group.] Raymond Perez v. Workers' Compensation Appeals Board, U.S. Foods. 6 WCAB Rptr. 10,025

PERMANENT DISABILITY– Total Permanent Disability– An injured worker's ability to participate in vocational rehabilitation to be retrained to compete in the open labor market is a factor to be considered in determining the injured worker's overall level of permanent disability. (See LeBouef v. Workers' Comp. Appeals Bd. (1938) 34 Cal.3d 234.) [In this case, in addition to the inability to participate in vocational rehabilitation, the injured worker was limited in his activities of daily living—unable to dress himself, bathe himself or cook.] General Motors Corporation v. Workers' Compensation Appeals Board (Ernest Petty) 5 WCAB Rptr. 10,360

PERMANENT DISABILITY– Successive injuries– A prior award of permanent disability does not preclude a determination that a successive injury combines with a timely reopened prior injury to become permanent and stationary at the same time. (See Nuelle v. Workers' Comp. Appeals Bd. (1972) 92 Cal.App.3d 239.) Southern California Edison v. Workers' Compensation Appeals Board (Glenn Davidson) 5 WCAB Rptr. 10,356

PERMANENT DISABILITY– Labor Code §4660– In determining the percentage of permanent disability, account shall be taken of the nature of the physical injury or disfigurement, the occupation of the injured employee, his age at the time of injury, and consideration being given to the diminished ability of the injured worker to compete in the open labor market. [In this case, the injured worker was found totally disabled based on medical evidence that established the combination of the applicant's depression, chronic pain and orthopedic limitations were such that vocational rehabilitation was not feasible and it did not appear probable that applicant would be able to return to the labor market and at best would be limited to a sheltered workshop environment.] County of Los Angeles v. Workers' Compensation Appeals Board (Rose Ann Frangione) 5 WCAB Rptr. 10,344

PERMANENT DISABILITY– Labor Code §4660– In determining the percentage of permanent disability, account should be taken of the nature of the physical injury or disfigurement, the occupation of the injured worker, and his/her age at the time of injury, with consideration being given to the diminished ability of the injured worker to compete in the open labor market. Permanent disability may result in impairment of earning capacity, impairment of the normal use of a body part or a diminished ability to compete in the open labor market. (See State Compensation Ins. Fund v. Industrial Acc. Com. (Hutchinson) (1963) 59 Cal.2d 45.) Richard May v. Workers' Compensation Appeals Board, County of Los Angeles USC Medical Center. 5 WCAB Rptr. 10,247

PERMANENT DISABILIY– Ultimately, the permanent disability rating is determined after consideration of the overall disability in its entirety and the injured worker's capacity to compete in the open labor market. (See Mihesuah v. Workers' Comp. Appeals Bd. (1976) 55 Cal.App.3d 720.) Richard May v. Workers' Compensation Appeals Board, County of Los Angeles USC Medical Center. 5 WCAB Rptr. 10,247

PERMANENT DISABILITY RATING– Labor Code §4660– In this case, the work restrictions rated more than the applicant's subjective and objective factors of disability. The injured worker is entitled to the higher rating of the two, but not to both. Jocelyn Johnson v. Workers' Compensation Appeals Board, Coca-Cola Bottling Company. 5 WCAB Rptr. 10,021

PERMANENT DISABILITY– In this case the applicant suffered from a neurological disorder known as Cervical Dystonia or Spasmodic Torticollis that causes significant involuntary movements of the neck with associated neck muscle spasms, pain and difficulty holding the head in a center and controlled manner. The involuntary posture of her neck impaired her ability to perform activities necessary for gainful employment, including prolonged sitting, reading, writing, working at a computer, doing keyboard work, telephone work, reaching, lifting and handling objects safely. The pain and involuntary neck movements also interfered with sustained concentration and social interaction. This condition entitled applicant to a 100% total disability. Twin City Fire Insurance Company/Hartford v. Workers' Compensation Appeals Board (Eileen Cahill) 4 WCAB Rptr. 10,270

PERMANENT DISABILITY RATING– In this case with the exception of constant pain at rest, the subjective complaints were subsumed within the work restrictions. With respect to the subjective compliant of constant slight pain at rest, this description by itself is vague, and does not meet the requirement of a subjective factor of disability. [Administrative Director Rule 9727 states that a subjective disability should be identified by the activities which are precluded and those which can be performed with the disability.] Lilli Hitt v. Workers' Compensation Appeals Board, City and County of San Francisco 4 WCAB Rptr. 10,237

WCAB PROCEDURE– Permanent disability rating– The Schedule for Rating Permanent Disabilities provides two distinct systems to be used to describe a disabling condition– the objective/subjective index and the work capacity index. Either or both indexes may be used to describe a particular condition, and each, when used, yields its own disability rating, When both are used, the index producing the higher rating is used. [In this case the rating instructions to the DEU specialist by the WCJ ignored the objective and subjective factors of disability [In this case the WCJ's rating instructions only took into account the work preclusions and work restrictions, but did not take into account objective and subjective factors of disability set forth in the treating physician's report.] Florante Cruz v. Workers' Compensation Appeals Board, Rylock Company. 4 WCAB Rptr. 10,232

WCAB PROCEDURE– Permanent Disability Rating– In this case the medical reports did not contain a discussion industry how applicant's injury resulted in a loss of grip strength in both hands. The WCJ's Opinion on Decision was sparse with regard to this issue and neither the WCJ nor the disability evaluator is a medical expert. (See City and County of San Francisco v. Ind. Acc. Com. (Murdock) (1953) 117 Cal.App. 2d 455.) Teresa Camberos v. Workers' Compensation Appeals Board, Wiggins Farms. 4 WCAB Rptr. 10,156

PERMANENT DISABILITY– when a WCJ accepts the treating physician's opinion that the injured worker is restrict to light work when the record conclusively demonstrates that the physician did not use that expression in the same was and with the same meaning ascribed to it by the Board, the WCJ's reliance on that opinion is not proper. Alberto Romero v. Workers' Compensation Appeals Board, New Porter, Inc. 3 WCAB Rptr. 10,361

PERMANENT DISABILITY– Combining permanent disabilities that become permanent and stationary at the same time– In order for permanent disability resulting from separate injuries to be combined for rating purposes, the successive cumulative or specific injuries or any combination must become permanent and stationary at the same time. (See Wilkinson v. Workers' Comp. Appeals Bd. (1977) 19 Cal. 3d. 491.) [In this case the applicant had a back injury which was stabilized by surgery and he was released to work. His back condition was found to be permanent and stationary by an agreed medical examiner resulting in a permanent disability which produced a rating of 26 percent. Four years later the applicant filed tow additional applications alleging a specific injury and a cumulative injury to his back. WCJ Levitt found the previous finding of a permanent and stationary date was "a legal fiction for rating purposes" and combined the permanent disability from the previous and subsequent injuries. The WCAB panel affirmed WCJ Levitt adopting her reasoning that the condition worsened over time because he continued to deteriorate upon returning to work after the first injury. E&J Gallo Winery v. Workers' Compensation Appeals Board (Fred Winters) 3 WCAB Rptr. 10,342

PERMANENT DISABILITY– Two separate ratings exceeding 100 percent– If successive injuries produce separate and independent diminutions in the ability of the injured worker to compete in the open labor market, then each is properly rated separately without concern for the theoretical 100 percent assigned to total disability. (See Moyer v. Workers' Comp. Appeals Bd. (1972) 24 Cal.App.3d 650.) Manufacturer's Wire Company v. Workers' Compensation Appeals Board (Russell Johnson) 3 WCAB Rptr. 10,261

PERMANENT DISABILITY RATING– While the WCJ may rate permanent disability without referral to the Disability Evaluation Unit, the more appropriate procedure is to obtain a formal permanent disability rating from the Disability Evaluation unit. Obtaining a formal permanent disability rating, the parties are apprised of the factors of permanent disability and may cross-examine the rater with respect to the method of calculating the permanent disability rate. Winncrest Homes, Inc., v. Paula Insurance Company (Michelle Shepherd) 3 WCAB Rptr. 10,242

PERMANENT TOTAL DISABILITY– Labor Code §– The AME opined that applicant was currently disabled on a psychiatric basis and that here was no way to determine when the bipolar disorder would become symptomatic absent the industrial injury. Therefore, apportionment was not proper. (See Ditler v. Workers' Comp. Appeals Bd.(1982) 131 Cal.App. 3d 803, Pullman Kellog v. Workers' Comp. Appeals Bd. (Normand) (1980) 26 Cal.3d 450.) Los Angeles Unified School District v. Workers' Compensation Appeals Board (Joel Bloomstone) 3 WCAB Rptr. 10,190

PERMANENT DISABILITY RATING– The WCJ is obligated to include factors of disability determined by expert medical opinion. In this case The rater must acoid compounding disability by taking the highest standard warranted by one set of work restrictions and one-half the lesser standard for different restrictions applicable to the same part of the body as contemplated by the Schedule of Rating Permanent Disabilities. Kemper Employer Claims Services v. Workers' Compensation Appeals Board (Carlos Tyus) 3 WCAB Rptr. 10,174

PERMANENT DISABILITY– The finding of 100 percent permanent disability was properly supported by substantial evidence which demonstrated subjective and objective neurological impairments: moderate post-traumatic head syndrome, decreased memory and word-finding difficulties, intermittent blurring of vision, significant impairment of fine motor coordination involving the right upper and lower extremities, decreased strength and sensation in the right upper extremity and right facial weakness. The medical evidence supported the finding that all of these abnormalities were limited to the left cerebral hemisphere which was due to a work-related assault. IBP, Inc., v. Workers' Compensation Appeals Board (Alejandro R. Cortez) 3 WCAB Rptr. 10,172

PERMANENT DISABILITY INDEMNITY– Average week wages– Labor Code §4453(c)(4)– The applicant's employemtn as a laborer in the construction industry was more accurately determined as intermittent rather than seasonal and accordingly the WCJ's calculation of applicant's average weekly wages for purposes of permanent disability indemnity rate pursuant to Labor Code §4453(c)(4) was correct. A.Teichert& Son Inc. v. Workers' Compensation Appeals Board (David Tulleys) 3 WCAB Rptr. 10125

PERMANENT DISABILITY– Formal disability rating determination– Title 8, Cal.Code of Regs. §10158– Formal rating determination prepared by disability rating evaluators shall be deemed to constitute evidence only as to the relationship between the disability described in the WCJ's instructions and the percentage of permanent disability. [In this case the Appeals Board affirmed the WCJ's decision that the rate was not allowed to use any other source other than the WCJ's instructions when preparing the formal rating determination.] Southern California Gas Co., v. Workers' Compensation Appeals Board (Roman Castro) 3 WCAB Rptr. 10,125

PERMANENT DISABILITY– In this case the Appeals Board affirmed the WCJ's finding of 100 percent total disability. The reports of an orthopedic AME and a psychiatric AME rated a combined 98% and the Appeals Board concluded that the WCJ made a reasonable inference from evidence in the record which included a Rehabilitation Bureau decision which was not appealed which found the applicant would not benefit from rehabilitation. Consititution State Service Co. v. Workers Compensation Appeals Board (Javier Reyes) 3 WCAB Rptr. 10,108

PERMANENT DISABILITY– Partial permanent disability indemnity for injury to a body part can be awarded even if the body part ceases to exist for non-industrial reasons, before a judicial determination is made. [In this case the applicant sustained a left upper extremity carpal tunnel condition which became permanent and stationary before the left forearm was amputated for non-industrial reasons.] Fabri-Centers of America, Inc v. Workers' Compensation Appeals Board (Lewis Britton) 3 WCAB Rptr. 10,043

PERMANENT DISABILITY RATING– The guidelines for permanent disability rating indicate that duplication of factors of disability shall be avoided when rating disability from a single injury. Duplication occurs when the combining of different factors of disability does not further reduce an injured worker's ability to compete in the open labor market beyond that resulting from a single factor taken alone. Non-scheduled disabilities shall be evaluated by comparison with the nearest scheduled disability, by analogy to a scheduled disability or by comparison with the entire scheme of relative severity of disabilities. [In this case the WCJ did not include swelling as a factor of disability and did not add subjective factors of disability to applicant's work preclusion.] Bryan Sherwood v. Workers' Compensation Appeals Board, Cable Communications & Engineering. 3 WCAB Rptr. 10,142

PERMANENT DISABILITY RATING INSTRUCTIONS– In this case the agreed medical evaluator set forth only subjective factors of disability to describe applicant's permanent disability and accordingly, the WCJ properly did not include any work preclusions in his instructions to the disability evaluation specialist. (See, Axelrod v. Workers' Comp. Appeals Bd. (1977) 42 Cal.Comp.Cases 934.) Sandi Kuhns v. Workers' Compensation Appeals Board, Liberty Mutual Insurance Company. 3 WCAB Rptr. 10,092