Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
PROCEEDINGS to review a decision of the Workers’ Compensation Appeals Board, W.C.A.B. No. VNO0476320
Law Offices of Vileisis, Brush & Goldflam and Mason H. Brush for Petitioner.
Law Offices of William J. Kropach and William J. Kropach for Respondent Larry Wragg.
No appearance on behalf of Respondent Workers’ Compensation Appeals Board.
KRIEGLER, J.
Virginia Surety, Inc. petitions for a writ of review of a decision by the Workers’ Compensation Appeals Board (the Board) affirming an award to respondent Larry Wragg. Virginia Surety contends the award was improperly calculated using the 1997 schedule for rating permanent disabilities, instead of the schedule tat went into effect on January 1, 2005.
The Legislature amended the workers’ compensation laws effective January 1, 2005, by requiring compensation under a schedule different from that in existence since 1997. For injuries occurring prior to 2005, the Legislature determined that the generally more favorable 1997 schedule applies if one of three conditions exists. (Lab. Code, § 4660, subd. (d).) The issue presented in this case is whether under section 4660, subdivision (d), the 1997 schedule applies to pre-2005 injuries when there is proof of a permanent disability, or if the disability must be both permanent and stationary. Resolution of this issue has lead to conflicting decisions by the Courts of Appeal. One court has held that an injury occurring before 2005 is compensable under the 1997 schedule pursuant to section 4660, subdivision (d), if there is satisfactory proof that the injury is both permanent and stationary. (Vera v. Workers’ Comp. Appeals Bd. (2007) 154 Cal.App.4th 996 (Vera).) More recently, our colleagues in Division Seven concluded Vera was incorrectly decided, holding that proof that a disability was permanent before 2005 is sufficient to bring the 1997 schedule into play under section 4660, subdivision (d), without additional proof that the disability was also stationary. (Genlyte Group, LLC, etc. v. Workers’ Comp. Appeals Bd. (Jan. 3, 2008, B198100) __ Cal.App.4th __ [2008 Cal.App. LEXIS 6] (Genlyte).) Because we conclude Genlyte correctly interpreted the statute, and there is evidence Wragg was permanently disabled prior to 2005, we affirm the decision of the Board.
All statutory references in this opinion are to the Labor Code.
FACTS AND PROCEDURAL BACKGROUND
On June 16, 2003, Wragg injured his back while working for his employer. He received temporary disability benefits beginning June 17, 2003.
Wragg underwent surgery on September 27, 2004. On December 22, 2004, Dr. Arthur Harris prepared a primary treating physician’s progress report stating in pertinent part: “It is my medical opinions, based upon my education, training and experience, along with a comprehensive review of this patient’s condition by way of review of all available information, that which this patient’s condition has not, as yet, reached a permanent and stationary status, that the patient will be left with some measure of permanent residual disability and limited functional capacity resulting from said industrial injury. Obviously, the extent of such disability cannot be determined, however, will be addressed once the patient’s condition reaches a permanent and stationary status.”
On April 13, 2006, the matter was tried on the issue of which rating schedule to use. On December 15, 2006, a workers’ compensation judge (WCJ) issued his findings, award, and order, concluding Wragg had a residual permanent disability of 61 percent, rating Wragg under the 1997 schedule and awarding permanent disability indemnity beginning June 15, 2005.
Virginia Surety petitioned for reconsideration on the ground the WCJ should have adopted a permanent disability rating under the 2005 schedule. On February 6, 2007, the Board denied reconsideration after finding all three exceptions contained in section 4660, subdivision (d) applied, based on the facts and the case law at the time. Virginia Surety petitioned this court for writ of review. Virginia Surety argued that the case law the Board had relied on had subsequently been reversed and therefore two of the exceptions no longer applied, and the third did not apply. We denied the petition without opinion. Virginia Surety petitioned the Supreme Court for writ of review. The Supreme Court directed this court to vacate its order denying mandate and to issue a writ to be heard before this court.
DISCUSSION
Standard of Review
“The resolution of this case requires us to interpret section 4660, subdivision (d) and apply it to the undisputed facts of this case. We apply a de novo standard of review when interpreting a statute, but we also apply the principle that ‘the [Board’s statutory] construction is entitled to great weight unless clearly erroneous.’ [Citation.]” (Vera, supra, 154 Cal.App.4th at p. 1003.)
Existence of Permanent Disability
Virginia Surety contends that in order to apply the 1997 schedule under section 4660, subdivision (d), based on a treating physician’s report made prior to January 1, 2005, the report must indicate the claimant’s disability was permanent and stationary. We disagree.
On April 19, 2004, “the Legislature passed a comprehensive reform of the workers’ compensation laws. (Stats. 2004, ch. 34, § 30.) Among other things, the Legislature required a change in the schedule by which permanent disability is rated. Under the amended law, by January 1, 2005, the Administrative Director of the Division of Workers’ Compensation was to revise the schedule for rating permanent disabilities, using, among other things, ‘the descriptions and measurements of physical impairments and the corresponding percentages of impairments published in the American Medical Association (AMA) Guides to the Evaluation of Permanent Impairment (5th Edition).’ (Lab. Code, § 4660, subds. (b)(1), (e).) The schedule was revised and became effective on January 1, 2005 (the new schedule). (Cal. Code Regs., tit. 8, § 9805.)” (Vera, supra, 154 Cal.App.4th at p. 1000, fns. omitted.) “In many cases, including the case at bar, the revision to the schedule for rating permanent disabilities reduces the amount a worker will be compensated for a permanent disability.” (Genlyte, supra, __ Cal.App.4th at p. ___ [2008 Cal.App. LEXIS 6 at p. *16], fn. omitted.)
Section 4660, subdivision (d) provides in pertinent part: “The schedule shall promote consistency, uniformity, and objectivity. The 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, amendment or revision, as the fact may be. For compensable claims arising before January 1, 2005, the schedule as revised pursuant to changes made in legislation enacted during the 2003-04 Regular and Extraordinary Sessions 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, or when the employer is not required to provide the notice required by Section 4061 to the injured worker.”
The pertinent date for determining if the new schedule applies under section 4660, subdivision (d) is January 1, 2005. (Vera, supra, 154 Cal.App.4th at p. 1004.) “While the statute is not a model of linguistic clarity, its intent is clear. The intent is to apply the rating schedule in effect on the date of injury to injuries suffered prior to 2005 in only three circumstances: (1) when a comprehensive medical-legal report issued prior to 2005 indicates permanent disability, (2) when a report from a treating physician issued prior to 2005 indicates permanent disability, and (3) when an employer has been required to give notice under section 4061 prior to 2005 concerning its intentions regarding payment of permanent disability benefits.” (Costco Wholesale Corp. v. Workers’ Comp. Appeals Bd. (2007) 151 Cal.App.4th 148, 157.)
In Vera, the court interpreted the phrase “permanent disability” in section 4660, subdivision (d), as requiring that the disability was permanent and stationary. “As we will explain, we conclude that the treating physician's report must indicate that the claimant has a ratable disability that has reached permanent and stationary status, and that in enacting section 4660, subdivision (d), the Legislature was using the term ‘permanent disability’ as another way of referring to the status of having a ratable disability that is ‘permanent and stationary.’” (Vera, supra, 154 Cal.App.4th at p. 1005.)
The Vera court reasoned: “The crucial fact for our analysis is that the treating physician’s report will describe the applicable impairment and limitations differently depending on whether the old schedule or the new schedule applies. Thus, when an employee reached permanent and stationary status before January 1, 2005 (i.e., before the effective date of the new schedule), the treating physician's report will necessarily incorporate the impairment standards applicable under the old schedule. Conversely, as in this case, if the employee had not yet reached permanent and stationary status before January 1, 2005, a treating physician’s report will not have applied the old schedule in describing the employee's impairments.” (Vera, supra, 154 Cal.App.4th at p. 1006.)
In Genlyte, Division Seven of this district specifically disagreed with the statutory analysis in Vera. “Genlyte’s argument and the Vera court’s conclusion miss the mark: The Legislature has repeatedly demonstrated its ability to specify ‘permanent and stationary status’ when that is what it intends. (See, e.g., §§ 4658, subd. (d)(2) [providing for increase or decrease of permanent disability indemnity depending on whether employer offers injured employee regular, modified or alternative work ‘within 60 days of a disability becoming permanent and stationary’]; 4061, subd. (a)(2) [specifying required notice upon last payment of temporary disability indemnity when amount of permanent disability indemnity payable cannot be determined ‘because the employee’s medical condition is not yet permanent and stationary’].) It did not do so in section 4660[, subd.] (d): ‘We are reluctant to conclude that the Legislature’s use of different terms, at different times in the statutory scheme, is meaningless.’ (In re Zacharia D. (1993) 6 Cal.4th 435, 451; see Villa De Las Palmas Homeowners Assn. v. Terifaj (2004) 33 Cal.4th 73, 82 [if there is no ambiguity in the language of statute, Legislature is presumed to have meant what it said].) Moreover, the exceptions in section 4660[, subd. ](d) are broadly worded and include any comprehensive medical-legal or treating physician’s report ‘indicating the existence of permanent disability.’ The language of the statute is not limited to what the Vera court properly describes as the typical final or permanent and stationary report.” (Genlyte, supra, __ Cal.App.4th at p. __ [2008 Cal.App. LEXIS 6 at pp. 25-26].)
We find the analysis of Genlyte persuasive and adopt it as the proper interpretation of the plain language of section 4660, subdivision (d). With this conclusion as to the interpretation of the statutory language, resolution of this appeal is straightforward. Dr. Harris, Wragg’s treating physician, expressed the opinion in December 2004 that Wragg “will be left with some measure of permanent residual disability and limited functional capacity resulting from said industrial injury.” This finding falls within section 4660, subdivision (d)(2), and makes the 1997 schedule applicable. The Board did not err in finding Wragg’s injury was compensable under the 1997 schedule.
DISPOSITION
The decision of the Worker’s Compensation Appeals Board is affirmed. The petition is denied. The parties shall bear their own costs.
We concur: TURNER, P. J., ARMSTRONG, J.