State Compensation Insurance Fund v. Workers' Compensation Appeals Board

Opinion

SWAGER, J.

The State Compensation Insurance Fund (State Fund) petitions for review (Labor Code, § 5952)

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of the decision after reconsideration of the Workers’ Compensation Appeals Board (Board) affirming an award to respondent, Jose C. Echeverría. State Fund contends that the award was improperly calculated using the 1997 schedule for rating permanent disabilities (PD schedule) in effect prior to January 1, 2005, rather than the new PD schedule that went into effect on that date. As will be seen, we agree and annul the award.

Section 4660 governs the calculation of permanent disability awards. As amended effective April 19, 2004, the section requires regular revisions in the rating schedule and, as relevant here, provides generally that “[t]he schedule and any amendment thereto or revision thereof shall apply prospectively and shall apply to and govern only those permanent disabilities that result from compensable injuries received or occurring on and after the effective date of the adoption of the schedule ....’’ (§ 4660, subd. (d).) But the section also provides that for “compensable claims arising before January 1, 2005,” the new schedule “shall apply to the determination of permanent disabilities when there has been either no comprehensive medical-legal report

or no report by a treating physician indicating the existence of permanent

disability.” (§ 4660, subd. (d), italics added.)

It is undisputed that Echeverría, employed as a logger, was injured on July 21, 2004. He sustained injury to his right ankle and low back, arising out of and in the course of his employment. State Fund is the insurer for Echeverría’s employer, Hiatt Logging. His injuries became permanent and stationary on June 16, 2005.

On November 15, 2004, Echeverria’s counsel faxed a letter to his treating physician, Dr. Morales. The letter read:

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“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.