Opinion
NOT TO BE PUBLISHED
WCAB Case Nos. SFO 0485939, SFO 0485943
Ruvolo, P.J., Reardon, J., Rivera, J.
Health Net, Inc. and its workers’ compensation insurer, American Home Assurance Company (collectively, Health Net), petitioned for review of an order from the Workers’ Compensation Appeals Board (WCAB). There being no facts or circumstances to distinguish the instant case from Costco Wholesale Corp. v. Workers’ Comp. Appeals Bd. (2007) 151 Cal.App.4th 148 (Costco), we will follow Costco and annul the WCAB’s order.
BACKGROUND
The parties stipulated that respondent Bente Hansen, while employed by Health Net, sustained an injury to her hands during a “cumulative period ending June 10, 2004.” She received temporary disability benefits from June 2004 to April 2005. In a report dated June 20, 2005, an agreed medical evaluator opined that Hansen was permanently partially disabled.
The parties submitted to the workers’ compensation judge (WCJ) the issue of which permanent disability schedule to use to rate Hansen’s injury: The new rating schedule that went into effect on January 1, 2005 (see Lab. Code, § 4660), or the rating schedule in effect prior to that date (the old schedule). The WCJ selected the old schedule, based on the fact that Health Net began paying temporary disability benefits in 2004. Health Net sought reconsideration, but the WCAB upheld the WCJ’s decision in an order that adopted the reasoning of the WCJ.
All further statutory references are to the Labor Code.
DISCUSSION
“Labor Code section 4660 governs the calculation of the percentage of permanent disability. Effective April 19, 2004, that statute was amended as part of Senate Bill No. 899 (2003–2004 Reg. Sess.), a comprehensive workers’ compensation reform package, to require regular revisions of the permanent disability rating schedule. A new rating schedule incorporating the American Medical Association Guides to the Evaluation of Permanent Impairment (5th ed.) went into effect on January 1, 2005. This schedule superseded the 1997 rating schedule that was in effect . . . in 2004.” (Costco, supra, 151 Cal.App.4th at pp. 151-152, fn. omitted.)
Although the new schedule was to apply prospectively (§ 4660, subd. (d)), the Legislature made an exception for cases in which there had been no determination of permanent disability prior to January 1, 2005. More specifically, the new schedule would apply to injuries occurring before January 1, 2005, when before that date “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.” (§ 4660, subd. (d), italics added.)
The notice required by section 4061 informs an injured employee whether the employer disputes either the existence of permanent disability, or the amount of permanent disability indemnity payable. (§ 4061, subd. (a)(1).) The notice must be provided by the employer “with the last payment of temporary disability indemnity.” (Id., at subd. (a).)
Section 4061, subdivision (a), provides in pertinent part: “Together with the last payment of temporary disability indemnity, the employer shall, in a form prescribed by the administrative director pursuant to Section 138.4, provide the employee one of the following: [¶] (1) Notice either that no permanent disability indemnity will be paid because the employer alleges the employee has no permanent impairment or limitations resulting from the injury or notice of the amount of permanent disability indemnity determined by the employer to be payable. . . . [¶] (2) Notice that permanent disability indemnity may be or is payable, but that the amount cannot be determined because the employee’s medical condition is not yet permanent and stationary. . . .”
At the time the WCJ considered the issue, existing WCAB precedent stated an employer’s duty to issue the section 4061 notice arose upon the first payment of temporary disability. (See Pendergrass v. Duggan Plumbing (2007) 72 Cal.Comp.Cases 95.) Under this interpretation of section 4061, the date temporary disability benefits commenced, not the date they ended, dictated the selection of the proper disability rating schedule.
The WCAB’s interpretation of section 4061 is simply untenable in light of the section’s direction to provide the notice with the last payment of temporary disability. (See Energetic Painting and Drywall, Inc. v. Workers’ Compensation Appeal Bd. (July 24, 2007, C055273) ___ Cal.App.4th ___, ___ [2007 WL 2108449, *3] [plain meaning of operative statutes compels conclusion employer was not required to provide section 4061 notice until temporary disability benefits ended].) Further, the WCAB’s interpretation would render portions of section 4660, subdivision (d), meaningless and defeat the legislative goal of bringing as many cases as possible under the new workers’ compensation law. (Costco, supra, 151 Cal.App.4th at p. 157.)
Health Net was required to mail the section 4061 notice to Hansen after the last temporary disability payment was made in April 2005. Because there was no medical report indicating permanent disability before January 1, 2005, and because Health Net was not required to mail a section 4061 notice before that date, the new schedule applies to Hansen’s case. (§ 4660, subd. (d).)
We note the WCAB itself no longer adheres to the view that the first payment of temporary disability triggers a duty to provide the section 4061 notice: “We believe that interpreting section 4660(d) so that the triggering of the employer’s obligation to provide section 4061 notice attaches with the last payment of temporary disability accomplishes this Legislative intent [to apply the 2005 rating schedule at the earliest possible time].” (Pendergrass v. Duggan Plumbing (2007) 72 Cal.Comp.Cases 456, 462.)
Finally, Hansen suggests an alternative ground upon which to uphold the WCAB’s decision in her case. She contends the Legislature did not intend the new schedule to apply to injuries that occurred before the new schedule was adopted on January 1, 2005. (Cal. Code Regs., tit. 8, § 9805.) But there is no indication in the record before us that she raised this contention in the workers’ compensation proceedings, there is no support for it in the language of section 4660, and our colleagues in the Third District rejected it in Chang v. Workers’ Compensation Appeals Bd. (July 24, 2007, C053854) ___ Cal.App.4th ___, ___ [2007 WL 2110481].) We agree with the analysis in Chang.
DISPOSITION
The WCAB’s order denying Health Net’s petition for reconsideration is annulled. The matter is remanded for further proceedings consistent with the views expressed in this opinion (i.e., calculation of the permanent disability award using the permanent disability rating schedule effective January 1, 2005). The parties shall bear their own costs.