In this issue..
Pendergrass v. Duggan
Plumbing
Vol. XIII No.
II
February 2007
COMPENSATION
NEWS
MONTHLY REPORT
NEW WORKERS COMPENSATION
APPEALS BOARD DETERMINING
THE PROPER SCHEDULE TO USE
This is a WCAB en
banc decision
T
his 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.
=================
Editor: Harvey Brown
Firm: Samuelsen, Gonzalez,
Valenzuela and Brown
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