California Labor Code Section 4660(D) - Example Case
In State Comp. Ins. Fund v. Workers' Comp. Appeals Bd. (2007) 146 Cal.App.4th 1311, 1315 (Echeverria), the worker was injured in 2004 and his injuries became permanent and stationary in 2005.
In November 2004, the worker's attorney sent a letter to the primary treating physician, which read:
"Dear Dr. Morales: Changes have occurred in the California Workers' Compensation system. Elements of those changes may affect your patient's rights to permanent disability benefits. Please advise by merely signing and dating this letter if you believe permanent disability, as that term is now defined, is a reasonable medical probability as a result of your patient's industrial injury. This is very important so your immediate attention to this matter would be greatly appreciated. I believe permanent disability is within reasonable medical probability emanating from this injury."
The letter was signed by Dr. Morales and dated December 15, 2004.
The Board found that the letter, read in light of the other 2004 reports by Dr. Morales describing persistent spinal range of motion problems, was sufficient to comply with the exception of section 4660, subdivision (d) for a report prior to 2005 indicating the existence of permanent disability. (Echeverria, supra, 146 Cal.App.4th at p. 1314.)
The Board reasoned that the report was not required to show the level of permanent disability, only the probable existence of permanent disability. (Ibid.)
The Board therefore applied the 1997 schedule.
On review of the Board's decision the Court of Appeal held that the decision to apply the 1997 schedule was not supported by substantial evidence. (Echeverria, supra, 146 Cal.App.4th at p. 1316.)
The court found nothing in the reports that tied the range of motion and pain symptoms to the December 2004 prediction of permanent disability. (Id. at p. 1315.)
The court also concluded that the reports from the primary treating physician did not mention a prognosis and provided no reasoning to support the conclusion in the 2004 report that the worker had sustained permanent disability. (Ibid.)