Split In Authority On P&S Requirment

Genlyte Group, LLC v. Workers’ Comp. Appeals Bd. (2008) 158 Cal.App.4th 705 [73 Cal. Comp. Cases 6]:  In a stunning move the Second Appellate District has created a surprising split of authority once again drawing confusion into the question of which ratings system applies to a given pre-2005 date of injury.

In Genlyte, the Second District disagreed with the Fourth Appellate District’s interpretation of Labor Code section 4663 as set forth in the Vera case.  Specifically, the Second District held that the terms permanent disability and permanent and stationary are not interchangeable.  As a result, the Second District concluded that an injured workers’ condition does not have to be permanent and stationary for a report to constitute substantial medical evidence of the existence of permanent disability. 

Put another way, under Genlyte, if a pre-2005 comprehensive medical-legal report or report of a treating physician indicates the existence of permanent disability, the injury is rated under the old system regardless of permanent and stationary status.

The Second District did agree with Baglione II and Costco that to trigger the old rating system a pre-2005 comprehensive medical-legal report must show the existence of permanent disability.

This decision creates a split of authority between the Fourth and Second Appellate Districts.  The other Appellate Districts have yet to weigh in on this issue.  The California Supreme Court will ultimately have to resolve this split in authority.  In the interim, cases tried in different areas will have different outcomes.  What was for a short time a bright line rule is clouded once again.  You should know which District your case falls into before trying this issue.

Map of California Appellate Districts.

Decision Filed by the 2nd District Court of Appeal January 3, 2008.

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