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The Case of the Missing Comma
by Donald R. Barthel, Esq.
 Effective January 1, 2005, California's newest Permanent Disability Rating Schedule (PDRS) began to be implemented. This PDRS is used to convert impairment (obtained via the AMA Guides) into PD. This conversion takes place by adjusting for diminished future earning capacity (FEC), occupation, and age.
As we all know, the 2005 PDRS/AMA Guides tend to result in significantly less PD than did the 1997 PDRS. Thus, huge battles are raging all over California as applicants push to have their cases rated via the old 1997 PDRS, while defendants push to apply the AMA Guides/2005 PDRS. As these battles continue, there is a recurring theme. Applicants argue there are three exceptions that permit a
pre-1/1/05 date of injury to be evaluated using the 1997 PDRS; defendants assert that there are only two such exceptions.
At issue is the language found in Labor Code Section 4660(d), which provides that for purposes of injuries prior to January 1, 2005, the new AMA-based schedule is applicable "where 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."
- Where there is no comprehensive medical/legal or PTP report demonstrating PD prior to 1/1/05.
- If a Labor Code Section 4061 (End of TD) Notice was "required" prior to 1/1/05.
The aforementioned battle relates to the first exception. At B&B, we have argued successfully that this first exception applies only if the PTP report or comprehensive medical-legal report issued prior to 1/1/05 “demonstrates the existence of permanent disability.” In particular, we argue that a comprehensive medical-legal report that issued prior to 1/1/05 that did not demonstrate the existence of permanent disability will not permit an applicant to escape the 2005 PDRS.
CAAA and some judges argue that the issuance of a “comprehensive medical-legal report” prior to
1/1/05 will place the applicant within the 1997 PDRS, regardless of whether that comprehensive medical-legal report demonstrated the existence of permanent disability. Indeed, some at CAAA have indicated that even a comprehensive medical-legal report issued prior to 1/1/05 declaring applicant TTD will, nevertheless, preclude using the AMA Guides/2005 PDRS. In short, applicant attorneys everywhere argue that only the pre-1/1/05 PTP report must demonstrate the existence of PD if it is to successfully keep applicant out of the AMA Guides.
How do we resolve this issue? It doesn’t require advanced, legal analysis. Rather, we just need to remember what we learned at school about grammar to resolve this riddle! Indeed, it comes down to a comma.
At the heart of CAAA’s argument is the assertion that the phrase “indicating the existence of permanent disability” modifies only the phrase “report by a treating physician.” More to the point, they argue that the phrase “indicating the existence of permanent disability” does not modify “comprehensive medical-legal report.” Thus, if this argument were true, the “comprehensive medical-legal report” need not demonstrate the “existence of permanent disability” to keep the AMA Guides from being applied. This argument, if accepted, creates the third exception to the 2005 PDRS/AMA Guides for pre-1/1/05 dates of injury.
Your 5th grade grammar teacher would not have accepted CAAA’s arguments. Neither should you! Grammatically, CAAA’s argument would only be true if Labor Code 4660(d) had been drafted with an additional comma:
"...when there has been either no comprehensive medical-legal report, or no report by the treating physician indicating the existence of permanent disability..."
That comma, by separating the phrase “comprehensive medical-legal report” from the qualifying phrase “existence of permanent disability” would have the impact desired by CAAA. However, that comma was not included in Labor Code Section 4660(d). There is nothing to separate “comprehensive medical-legal report” from the phrase “indicating the existence of permanent disability” other than the phrase “report by a treating physician.” In short, the requirement that a report indicate the “existence of permanent disability” modifies both of the phrases immediately preceding it: “report by a treating physician” and “comprehensive medical-legal report.”
Given the California Legislature’s failure to include the comma sought by CAAA, the argument for the three separate exceptions to the PDRS/AMA Guides simply must fall flat. Viva la AMA Guides! Viva la 2005 PDRS!
Donald Barthel is a Founding Partner of Bradford & Barthel, LLP.
NOTE: Just prior to publication, a three-member panel released Racquel Torres v. SDM Precision Products, LAO 832511 (7/24/06), ruling that "[t]he grammar of the third sentence at section 4660(d) does not require a "comprehensive medical-legal report that also indicates the existence of permanent disability, in order for the prior rating schedule to apply." We discuss 4660(d) on page 1 of this issue, The Case of the Missing Comma. In our next issue (September/October 2006), we will discuss why we think Racquel Torres v. SDM Precision Product was wrongly decided.
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The Case of the Missing Comma
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