Opinion
NOT TO BE PUBLISHED
WCAB No. SFO 0483033
Marchiano, P. J.
The San Francisco Marriott, Permissibly Self-Insured (Marriott), timely petitions for review (Labor Code §§ 5950; 5952) challenging the Opinion and Decision After Reconsideration of the Worker’s Compensation Appeals’ Board (Board) concerning respondent, Antonio Yamat (Yamat). It is undisputed that Yamat sustained an industrial injury to his lower back, that he received temporary disability indemnity from June 28, 2004 through October 2005, and that the injury caused permanent disability. No physician had prepared a pre-2005 report indicating the existence of a permanent disability for Yamat.
Further statutory references are to the Labor Code unless otherwise noted.
The Board rated Yamat’s permanent disability utilizing the 1997 rating schedule, rather than the schedule that went into effect January 1, 2005. In doing so, the Board relied on section 4660, subdivision (d) to hold that the 1997 schedule applies where, as here, payments of temporary disability commenced prior to January 1, 2005. Marriott contends that the Board erred. We agree.
As we recently explained, “[s]ection 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).)” (State Comp. Ins. Fund v. Workers’ Comp. Appeals Bd. (2007) 146 Cal.App.4th 1311, 1313.) But the statute also requires application of the new rating schedule to compensable injuries occurring before its adoption date whenever, before January 1, 2005, “the employer is not required to provide the notice required by Section 4061 . . . .” (§ 4660, subd. (d).) Section 4061, in turn, requires a specified notice to an employee “[t]ogether with the last payment of temporary disability indemnity . . . .” (§ 4061, subd. (a).)
At the time the Board issued its decision in this case, it had recently filed its en banc decision in Pendergrass v. Duggan Plumbing and State Compensation Insurance Fund (2007) 72 Cal.Comp.Cases 95 (Pendergrass I), holding that “for purposes of section 4660 . . . an employer’s duty ‘to provide the notice required by’ section 4061 arises with the first payment of temporary disability indemnity.” Consequently, the Board followed Pendergrass I and applied the 1997 rating schedule in Yamat’s case because he had received his first temporary disability payment prior to January 1, 2005.
While Marriott’s petition for review was pending in this court, the Board reversed itself and rejected its conclusion in Pendergrass I. (Pendergrass v. Duggan Plumbing and State Compensation Insurance Fund (2007) 72 Cal.Comp.Cases 456 (Pendergrass II). In addition, in Costco Wholesale Corp. v. Workers’ Comp. Appeals Bd. (2007) 151 Cal.App.4th 148 (Chavez), Division Four of this court addressed, and rejected, the reasoning of Pendergrass I, explaining that although “the statute is not a model of linguistic clarity, its intent is clear. The intent is to apply the new 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. This interpretation supports the legislative goal of bringing as many cases as possible under the new workers’ compensation law. (See Stats. 2004, ch. 34, § 49[, p. 75]; Green v. Workers’ Comp. Appeals Bd. [2005] 127 Cal.App.4th [1426, ] 1441.) If . . . the commencement of any temporary disability payments before 2005 required application of the rating schedule in effect at the time of injury, this legislative goal would be defeated. It would be rare, indeed, for temporary disability payments not to be owed or paid prior to 2005 for an injury occurring in or before 2004. Such a limited exception would be pointless where the Legislature could more easily have drafted the statute to apply the schedule in effect on the date of injury in all cases.
“Chavez’s proposed interpretation of the section 4061 notice exception under section 4660, subdivision (d), would also render meaningless that portion of the statute that requires application of the 2005 schedule if, before 2005, there was ‘no comprehensive medical-legal report or no report by a treating physician indicating the existence of permanent disability . . . .’ Temporary disability will have been paid or owed before January 1, 2005, in virtually every case where a qualified medical examiner or doctor prepared a pre-2005 medical report indicating permanent disability, meaning there would be no practical need for the other two exceptions. ‘ “[A]n interpretation that renders statutory language a nullity is obviously to be avoided.” ’ (Branciforte Heights, LLC v. City of Santa Cruz (2006) 138 Cal.App.4th 914, 937.)” (Chavez, supra, 151 Cal.App.4th at p. 157, italics added.)
We agree with the reasoning in Chavez, supra, and conclude that the employer’s duty to provide the notice required by section 4061 is not triggered simply by the commencement of temporary disability benefits.
Urging us to reject Chavez, Yamat makes several arguments. First, he contends that the exceptions set forth in sections 4658, subdivision (d)(4) and 4660, subdivision (d) should be read to become operative only if the new rating schedule had gone into effect prior to January 1, 2005. But this reading would require us to ignore the plain words of the statute specifying the trigger for application of the new schedule as “the effective date of the adoption of the schedule . . . .” (§ 4660, subd. (d).)
Section 4658, subdivision (d)(4) concerns the actual computation of permanent disability benefits and is a parallel provision to section 4660, subdivision (d).
Next, Yamat argues that because section 4453.5 was left untouched by Senate Bill No. 899 (Sen. Bill No. 899 (2003-2004 Reg. Sess.)), the statutory scheme is ambiguous, requiring us to construe it in his favor. (§ 3202.) In doing so, however, Yamat ignores the well-settled rule that “where a right or a right of action depending solely on statute is altered or repealed by the Legislature, in the absence of contrary intent, e.g., a savings clause, the new statute is applied even where the matter was pending prior to the enactment of the new statute . . . . The justification for this rule is that all statutory remedies are pursued with the full realization that the Legislature may abolish the right to recover at any time.” (McCarthy v. Workers’ Comp. Appeals Bd. (2006) 135 Cal.App.4th 1230, 1236, internal citations and quotations omitted.) Moreover, “Senate Bill [No.] 899 makes clear that retroactive application is what the Legislature intended. Section 47 in Senate Bill [No.] 899 . . . states in part that ‘[t]he amendment, addition, or repeal of, any provision of law made by this act shall apply prospectively from the date of enactment of this act . . . .’ Senate Bill [No.] 899 was enacted long after the injuries in question. If this is all we had, we very well might conclude uniform prospective application was the rule. However, the use of ‘prospectively’ in section 47 in Senate Bill [No.] 899 is not dispositive when other language is considered. The term is almost immediately followed by the phrase ‘unless otherwise specified.’ ” (Green v. Workers’ Comp. Appeals Bd., supra, 127 Cal.App.4th at p. 1439.) The language of section 4660, subdivision (d) otherwise specifies an exception to prospectivity.
Section 4453.5 provides: “Benefits payable on account of an injury shall not be affected by a subsequent statutory change in amounts of indemnity payable under this division, and shall be continued as authorized, and in the amounts provided for, by the law in effect at the time the injury giving rise to the right to such benefits occurred.”
Section 3202 provides: “This division and Division 5 (commencing with Section 6300) shall be liberally construed by the courts with the purpose of extending their benefits for the protection of persons injured in the course of their employment.”
Finally, we observe that section 4660, subdivision (d) is more specific than section 4453.5 and hence controls. “It is well settled . . . that a general provision is controlled by one that is special, the latter being treated as an exception to the former. A specific provision relating to a particular subject will govern in respect to that subject, as against a general provision, although the latter, standing alone, would be broad enough to include the subject to which the more particular provision relates.” (Rose v. State of California (1942) 19 Cal.2d 713, 723-724; San Francisco Taxpayers Assn. v. Board of Supervisors (1992) 2 Cal.4th 571, 577.)
Yamat has informed the court that a workers’ compensation judge has “invalidated” the new schedule. However, that case and that issue are not presently before us.
Therefore, the portion of the Opinion and Decision After Reconsideration deferring the issue of permanent disability in order for the worker’s compensation judge to rate Yamat’s permanent disability under the old 1997 rating schedule is annulled. The matter is remanded to the Board for further proceedings consistent with this opinion.
The parties shall bear their own costs.
We concur: Stein, J., Swager, J.