Josh Pendergrass v. Duggan Plumbing and State Compensation Insurance Fund

Annotate this Case

Download PDF

1 WORKERS’ COMPENSATION APPEALS BOARD 2 STATE OF CALIFORNIA 3 Case No. SAL 0110868 4 JOSH PENDERGRASS, 5 Applicant, 6 vs. 7 8 OPINION AND ORDER GRANTING RECONSIDERATION AND DECISION AFTER RECONSIDERATION (EN BANC) DUGGAN PLUMBING; and STATE COMPENSATION INSURANCE FUND, 9 Defendant. 10 11 Defendant, being newly aggrieved, seeks reconsideration of the en banc decision issued by 12 the Appeals Board on January 24, 2007. In that decision, the Appeals Board held, by a 4 to 3 13 majority, that if the first date of compensable temporary disability occurred prior to January 1, 14 2005, then the 1997 Schedule for Rating Permanent Disabilities (1997 Schedule) applies to 15 determine the extent of permanent disability, pursuant to Labor Code section 4660(d) 1 , because an 16 employer’s duty “to provide the notice required by” section 4061 arises with the first payment of 17 temporary disability indemnity. In so holding, the Appeals Board majority granted applicant’s 18 petition for reconsideration of the Findings and Order of December 11, 2006, wherein the workers’ 19 compensation administrative law judge (WCJ) found, in essence, that the extent of applicant’s 20 permanent disability caused by the admitted industrial injury he sustained to his right lower 21 extremity/ankle on June 29, 2004, should be determined using the 2005 Schedule for Rating 22 Permanent Disabilities (2005 Schedule). The WCJ also found that the injury caused temporary 23 disability through July 19, 2005, and reasoned that none of the three exceptions enumerated in 24 section 4660(d) to application of the 2005 Schedule to pre-2005 injuries applies. The three 25 dissenting commissioners disagreed with the majority’s interpretation of section 4660(d), and 26 would have affirmed the WCJ’s decision. 27 1 All further statutory references are to the Labor Code, except where otherwise noted. 1 Defendant contends that the Appeals Board erred in concluding that the 1997 Schedule 2 applies if an injury first caused temporary disability before January 1, 2005, arguing that the 2005 3 Schedule applies unless the last payment of temporary disability indemnity was made before 4 January 1, 2005. Accordingly, defendant asserts that the 2005 Schedule applies in this matter 5 because the last payment of temporary disability indemnity was made in July 2005. 6 7 Applicant filed an answer to defendant’s petition for reconsideration, asserting that the Appeals Board is bound by its prior en banc decision in this case. 8 We hold that if the last payment of temporary disability indemnity was made for any period 9 of temporary disability ending before January 1, 2005, then the 1997 Schedule applies to 10 determine the extent of permanent disability, pursuant to section 4660(d), because section 4061 11 requires the employer to provide the injured worker with a notice regarding permanent disability 12 “[t]ogether with the last payment of temporary disability indemnity ... .” 2 13 I. 14 Before we turn to the merits of defendant’s petition for reconsideration, we will address 15 two preliminary issues: (1) applicant’s contention that our prior en banc decision in this case is 16 now binding and cannot be revisited; and (2) the change in the membership of the Appeals Board 17 since our prior en banc decision. 18 We turn first to applicant’s contention, which we reject. 19 This matter is pending before us again on a timely petition for reconsideration. The Labor 20 Code expressly allows an aggrieved party to seek reconsideration of any final decision “made and 21 filed by the appeals board” (Lab. Code, §§ 5900(a), 5902, 5903, 5906, 5907 (emphasis added)) 22 and it expressly allows the Appeals Board, on reconsideration, to “affirm, rescind, alter, or 23 amend” its prior decision. (Lab. Code, §§ 5906, 5907 (emphasis added).) 24 Further, there is no statute, rule, or case law that precludes the en banc Appeals Board from 25 revisiting and reversing a prior Appeals Board en banc decision. Section 115 permits “the appeals 26 board as a whole” to issue en banc decisions (see also Gov. Code, § 11425.60(b)), and Appeals 27 2 It is likely self-evident, but our holding relates only to compensable claims arising before January 1, 2005. PENDERGRASS, Josh 2 1 Board Rule 10341 provides that “[e]n banc decisions of the Appeals Board are binding on panels 2 of the Appeals Board and [WCJs] as legal precedent under the principle of stare decisis.” (Cal. 3 Code Regs., tit. 8, § 10341 (emphasis added).) Rule 10341 does not make en banc decisions 4 binding on the Appeals Board sitting en banc. 5 Moreover, although an en banc decision in a particular case has immediate stare decisis 6 effect on WCJs and Appeals Board panels in other cases (Diggle v. Sierra Sands Unified Sch. Dist. 7 (2005) 70 Cal.Comp.Cases 1480 (Significant Panel Decision)), the principle of stare decisis does 8 not apply to this case because a timely and proper petition for reconsideration was filed and, 9 therefore, our prior en banc is not final as to these parties. This situation is analogous to the filing 10 of a timely petition for rehearing with an appellate court – i.e., on rehearing, the appellate court is 11 not bound by its original decision and may reverse itself in whole or in part. (E.g., People v. 12 Wright (1990) 52 Cal.3d 367, 382-383; In re Raphael P. (2002) 97 Cal.App.4th 716, 722.) 13 14 Accordingly, we are free to reconsider our prior en banc decision and to reach a different conclusion. 15 We next address the change in the membership of the Appeals Board. 16 Subsequent to the January 24, 2007, en banc decision, the composition of the Appeals 17 Board changed because the term of Commissioner Merle Rabine ended and the Governor 18 appointed Alfonso J. Moresi as an Appeals Board member. (See Lab. Code, § 112.) However, this 19 change of Appeals Board members does not affect our ability to reconsider that en banc decision. 20 Because Commissioner Moresi is a duly-appointed and presently sitting member of the Appeals 21 Board, he may properly participate in the deliberations and decision in this matter. (Lab. Code, § 22 111(a) (“The Workers’ Compensation Appeals Board, consisting of seven members, shall exercise 23 all judicial powers vested in it under this code.” (Emphasis added).) This is true even though he 24 did not participate in the initial en banc decision. 25 26 27 The circumstances here are analogous to those in Metropolitan Water Dist. v. Adams (1942) 19 Cal.2d 463 (“Adams”). In Adams, an appeal was argued before six Supreme Court justices and a Court of Appeal justice (Justice Pullen), who was sitting as a pro tempore (“pro PENDERGRASS, Josh 3 1 tem”) justice of the Supreme Court in place of Justice Houser, who was absent. Following the oral 2 argument, the Supreme Court affirmed the judgment of the trial court by 4-3 vote, with pro tem 3 Justice Pullen joining in the majority. Thereafter, however, a timely petition for rehearing was 4 filed, which was considered by all seven regular members of the Supreme Court, including Justice 5 Houser (i.e., pro tem Justice Pullen did not participate), and an order granting rehearing was then 6 signed by four Supreme Court justices, including Justice Houser. Defendant challenged the order 7 granting rehearing, contending that because Justice Houser had not participated in the original 8 argument and decision, he “was not authorized to sign the order granting the rehearing and that 9 [the] order … is therefore void and of no effect.” However, the Supreme Court unanimously 10 rejected defendant’s contention. In doing so, the Supreme Court pointed out that Justice Pullen 11 had properly participated in the original decision, which had been submitted to him. However, 12 “the application for a rehearing had never been submitted to him”; instead, “[t]he question whether 13 a rehearing should be granted was … presented to the court with its regular membership 14 participating, and Justice Houser had the power to act on the [petition for rehearing] unless 15 disqualified … [because he was a] regularly constituted member of the Supreme Court … [who 16 was] able, ready and willing to act … .” (Adams, supra, 19 Cal.2d at pp. 469-470.) Further, the 17 Supreme Court declared: “The parties, of course, have the constitutional right to a judgment 18 herein by a duly constituted court, but they have no right, constitutional or otherwise, to a decision 19 by any particular judge or group of judges.” (Adams, supra, 19 Cal.2d at p. 474; see also Reeve v. 20 Colusa Gas & Electric Co. (1907) 151 Cal. 29 (similar).) 21 Here, Commissioner Moresi is a regularly constituted member of the Appeals Board, who 22 is able, ready and willing to act – and who is not disqualified. Moreover, Commissioner Moresi 23 has reviewed and considered the current petition for reconsideration, the current answer, and the 24 entire record in this case – as well as all of the arguments previously made. Commissioner Moresi 25 concurs with the analysis set forth in what was previously the dissenting opinion to the Opinion 26 27 and Order Granting Reconsideration and Decision After Reconsideration of January 24, 2007. /// PENDERGRASS, Josh 4 1 Accordingly, we now reverse that prior en banc decision. Therefore, for the reasons 2 discussed below, we will grant defendant’s petition for reconsideration, rescind our prior decision, 3 and affirm in its entirety the Findings and Order issued by the WCJ on December 11, 2006, 4 applying the 2005 Schedule. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 II. Subsection (d) of section 4660 provides as follows: “The [2005] 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 [2005] 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.” In turn, subsection (a) of section 4061 provides as follows: “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. The notice shall include information concerning how the employee may obtain a formal medical evaluation pursuant to subdivision (c) or (d) if he or she disagrees with the position taken by the employer. The notice shall be accompanied by the form prescribed by the administrative director for requesting assignment of a panel of qualified medical evaluators, unless the employee is represented by an attorney. If the employer determines permanent disability indemnity is payable, the employer shall advise the employee of the amount PENDERGRASS, Josh 5 1 2 3 4 5 6 7 8 9 10 11 12 determined payable and the basis on which the determination was made and whether there is need for continuing medical care. “(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. The notice shall advise the employee that his or her medical condition will be monitored until it is permanent and stationary, at which time the necessary evaluation will be performed to determine the existence and extent of permanent impairment and limitations for the purpose of rating permanent disability and to determine the need for continuing medical care, or at which time the employer will advise the employee of the amount of permanent disability indemnity the employer has determined to be payable. If an employee is provided notice pursuant to this paragraph and the employer later takes the position that the employee has no permanent impairment or limitations resulting from the injury, or later determines permanent disability indemnity is payable, the employer shall in either event, within 14 days of the determination to take either position, provide the employee with the notice specified in paragraph (1).” 13 14 In Aldi v. Carr, McClellan, Ingersoll, Thompson & Horn (2006) 71 Cal.Comp.Cases 783, 15 785 (Appeals Board en banc), writ den. sub nom. Aldi v. Workers’ Comp. Appeals Bd. (2006) 71 16 Cal.Comp.Cases 1822, we specifically held that, “…the revised permanent disability rating 17 schedule, adopted by the Administrative Director of the Division of Workers’ Compensation, 18 effective January 1, 2005, applies to injuries occurring on or after that date, and that in cases of 19 injury occurring prior to January 1, 2005, the revised permanent disability rating schedule applies, 20 unless one of the exceptions delineated in the third sentence of section 4660 (d) is present.” 21 Section 4660(d) states that the new schedule will apply if, before January 1, 2005, the 22 “employer is not required to provide the notice required by Section 4061 to the injured worker.” 23 Section 4061(a) requires that notice be provided “[t]ogether with the last payment of temporary 24 disability indemnity ... .” Here, temporary disability indemnity was paid continuously from June 25 30, 2004, through July 19, 2005. 26 defendant’s obligation to provide notice did not arise until the actual last payment of temporary 27 disability indemnity in July 2005. Contrary to the dissenting opinion, the fact that this quoted PENDERGRASS, Josh Pursuant to the plain language of sections 4660(d) and 4061, 6 1 portion of section 4660(d) uses the present tense rather than the past tense does not alter the plain 2 meaning of section 4660(d). 3 Additionally, the language of section 4660(d) must be viewed in light of the entire statutory 4 scheme of which it is a part. (See Chevron U.S.A., Inc. v. Workers' Comp. Appeals Bd. (Steele) 5 (1999) 19 Cal.4th 1182 [64 Cal.Comp.Cases 1].) In this regard, we note that the first sentence of 6 section 4660(d) clearly expresses the legislative intent to “promote consistency, uniformity, and 7 objectivity” by adopting the revised rating schedule. Section 4660(d) was adopted as part of a 8 comprehensive reform of the workers' compensation statutes (Senate Bill 899). Section 49 of 9 Senate Bill 899 provides a clear expression of the legislative intent: 10 11 12 13 14 “This act is an urgency statute necessary for the immediate preservation of the public peace, health, or safety within the meaning of Article IV of the Constitution and shall go into immediate effect. The facts constituting the necessities are: In order to provide relief to the State from the effects of the current workers’ compensation crisis at the earliest possible time, it is necessary for this act to take effect immediately.” (Emphasis added.) 15 16 17 18 19 20 21 22 23 24 25 Thus, the Legislature intended that the changes in the law take effect “immediately” so as to provide relief “at the earliest possible time.” In Aldi, supra, 71 Cal.Comp.Cases at p. 793, fn. 6, we noted the Court of Appeal’s observation in Green v. Workers’ Comp. Appeals Bd. (2005) 127 Cal.App.4th 1426, 1441 [70 Cal.Comp.Cases 294] that section 49 reflects “‘the Legislature’s intent to solve the [workers’ compensation crisis] as quickly as possible by bringing as many cases as possible under the umbrella of the new law.’” (See also Kleemann v. Workers’ Comp. Appeals Bd. (2005) 127 Cal.App.4th 274 [70 Cal.Comp.Cases 133]; Rio Linda Union School District v. Workers’ Comp. Appeals Bd. (Sheftner) (2005) 131 Cal.App.4th 517 [70 Cal.Comp.Cases 999].) Consequently, if section 4660(d) is to be construed so as to effectuate the Legislature’s intent to provide relief “at the earliest possible time”, it must be construed in the manner that 26 ensures that the revised rating schedule applies “at the earliest possible time.” We believe that 27 interpreting section 4660(d) so that the triggering of the employer’s obligation to provide section PENDERGRASS, Josh 7 1 4061 notice attaches with the last payment of temporary disability accomplishes this Legislative 2 intent. 3 The dissent’s analysis would render an entire subdivision meaningless, in violation of the 4 basic rule that interpretations are to be avoided that render some words surplusage, defy common 5 sense, or lead to mischief or absurdity. (Fields v. Eu (1976) 18 Cal.3d 322, 328; Cal. Insurance 6 Guarantee Assn. v. Workers’ Comp. Appeals Bd. (White/Torres) (2006) 136 Cal.App.4th 1528, 7 1534 [71 Cal.Comp.Cases 139, 141-142].) 8 Accordingly, we will grant reconsideration, rescind the Opinion and Order Granting 9 Reconsideration and Decision After Reconsideration of January 24, 2007, and affirm the initial 10 Findings and Order of December 11, 2006, in its entirety. 11 For the foregoing reasons, 12 IT IS ORDERED that reconsideration of the Opinion and Order Granting Reconsideration 13 and Decision After Reconsideration of January 24, 2007, is GRANTED. 14 /// 15 /// 16 /// 17 /// 18 /// 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 27 /// /// PENDERGRASS, Josh 8 1 IT IS FURTHER ORDERED, as the Decision After Reconsideration of the Workers’ 2 Compensation Appeals Board (En Banc), that the Opinion and Order Granting Reconsideration 3 and Decision After Reconsideration of January 24, 2007, is RESCINDED and that the Findings 4 and Order of December 11, 2006, is AFFIRMED in its entirety. 5 WORKERS’ COMPENSATION APPEALS BOARD (EN BANC) 6 /s/ Joseph M. Miller________________________ JOSEPH M. MILLER, Chairman 7 8 9 /s/ James C. Cuneo_________________________ JAMES C. CUNEO, Commissioner 10 11 /s/ F. M. Brass_____________________________ FRANK M. BRASS, Commissioner 12 13 /s/ Alfonso J. Moresi________________________ ALFONSO J. MORESI, Commissioner 14 15 WE DISSENT (See attached Dissenting Opinion) 16 17 /s/ William K . O'Brien_____________________ WILLIAM K. O’BRIEN, Commissioner 18 19 /s/ Ronnie G. Caplane______________________ RONNIE G. CAPLANE, Commissioner 20 21 22 /s/ Janice J. Murray________________________ JANICE J. MURRAY, Commissioner 23 24 25 26 27 DATED AND FILED AT SAN FRANCISCO, CALIFORNIA 4/6/2007 SERVICE BY MAIL ON ALL PARTIES AS SHOWN ON THE OFFICIAL ADDRESS RECORD EFFECTED ON ABOVE DATE, EXCEPT LIEN CLAIMANTS. JSG PENDERGRASS, Josh 9 1 DISSENTING OPINION 2 We dissent. We would deny reconsideration and affirm our prior en banc decision. 3 We first observe that the Appeals Board, as a judicial body, should not respond to hastily 4 drafted legislation with the goal of affording relief to businesses “at the earliest possible time,” as a 5 catch-all for every situation. Nowhere does SB 899 state that such relief must come at the expense 6 of injured workers, or that the express words of statutes are to be recrafted to suit this goal. Words 7 are the tools of lawyers, courts, and legislators. We must assume that the words used were the 8 words the Legislature intended to use. In construing the effect those words may have in everyday 9 practice, we must look at the plain language before us and not presume that the Legislature meant 10 something other than it stated in the statutes. 11 Therefore, as explained in our prior en banc decision in this case, we conclude, for 12 purposes of determining the applicable permanent disability rating schedule pursuant to Labor 13 Code section 4660, that an employer’s duty “to provide the notice required by” section 4061 arises 14 with the first payment of temporary disability indemnity. 15 compensable temporary disability occurred prior to January 1, 2005, then the 1997 Schedule 16 applies to determine the extent of permanent disability. Therefore, if the first date of 17 The new permanent disability rating schedule mandated by section 4660 was adopted by 18 the Administrative Director in Rule 9805 (Cal. Code Regs., tit. 8, § 9805), and became effective on 19 January 1, 2005. 20 We conclude for purposes of section 4660 that an employer’s duty “to provide the notice 21 required by” section 4061 arises with the first payment of temporary disability indemnity. There is 22 no obligation to provide any section 4061 notice unless temporary disability indemnity has been 23 paid or should have been paid. Thus, as soon as the first date of compensable temporary disability 24 occurs, the duty to give section 4061 notice comes into existence. This is an absolute duty, and 25 there is no circumstance under which an employer may avoid that duty. 26 27 We distinguish here between when the duty arises and when the duty is required to be executed. The duty arises when the first payment of temporary disability indemnity is made. The PENDERGRASS, Josh 10 1 execution of that duty occurs when the last payment of temporary disability indemnity is made. If 2 there is no temporary disability, no duty to give notice under section 4061 arises. 3 We also note that the first two exceptions to the general provision of section 4660(d), 4 applying the 2005 Schedule to pre-2005 injuries are phrased in the past perfect tense (i.e. “when 5 there has been”), but that the third exception is phrased in the present tense (i.e. “is not required”). 6 Thus, the most persuasive interpretation of that phrase is that the employer “is required” to provide 7 the notice required by section 4061 once the first payment of temporary disability indemnity is 8 made, although the timing of the notice is contingent on the duration of temporary disability 9 indemnity and the content of the notice is contingent on the employee’s medical condition at the 10 time of “the last payment” of temporary disability indemnity. 11 Thus, here, defendant’s duty to provide the notice required by section 4061 arose on June 12 30, 2004, when the first payment of temporary disability indemnity was made. Accordingly, the 13 1997 Schedule applies to calculate applicant’s permanent disability. Therefore, we would deny 14 reconsideration of the Opinion and Order Granting Reconsideration and Decision After 15 Reconsideration of January 24, 2007. 16 17 /s/ William J. O'Brien______________________ WILLIAM K. O’BRIEN, Commissioner 18 19 20 /s/ Ronnie G. Caplane______________________ RONNIE G. CAPLANE, Commissioner 21 22 23 /s/ Janice J. Murray________________________ JANICE J. MURRAY, Commissioner 24 25 DATED AND FILED AT SAN FRANCISCO, CALIFORNIA 4/6/2007 26 27 SERVICE BY MAIL ON ALL PARTIES AS SHOWN ON THE OFFICIAL ADDRESS RECORD EFFECTED ON ABOVE DATE, EXCEPT LIEN CLAIMANTS. PENDERGRASS, Josh 11

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.