Genlye Group v. WCAB (Zavala)(2008)

By: Vic R. Redula, esq.

STATEMENT OF FACTS:

Zavala, an assembler for Genlyte, sustained injuries to her shoulders, upper extremities and right hand at work on December 5, 2001. She also sustained injury to these same parts of her body due to cumulative trauma at work from August 2, 2002 through March 14, 2003.

She came under the care of Dr. Rahman performed right shoulder surgery on her left shoulder on April 27, 2004. In his report dated September 14, 2004, Dr. Rahman stated that, "It is my opinion that permanent disability exists with respect to the patient's bilateral shoulder and bilateral upper extremity injuries, however, I will further determine the extent of permanent disability after further evaluations of the patient's condition." Also, in his post-operative report dated November 10, 2004 he indicated that "Zavala will more than likely require vocational rehabilitation, but this will be determined after further evaluation."

Prior to the surgery, Genlyte obtained a qualified medical-legal evaluation from orthopedic surgeon Brent Miller. In his report dated April 12, 2004, he stated that Zavala "remains temporarily totally disabled pending her additional surgery... At the present time, the presence of permanent impairment is expected but rating is uncertain."

Zavala had another surgery on March 1, 2005 to he right wrist.

In his report dated August 22, 2005, barely five and a half months after her last surgery, Dr. Miller indicated Zavala is now permanent and stationary and gave her 2% whole person impairment under the 2005 PDRS. He later changed this to 4% after reviewing Dr. Rahman's report dated October 19, 2005. It is estimated that after modifications, 4% became 6%.

By his report dated October 19, 2005 Dr. Rahman indicated Zavala was now permanent and stationary with work restrictions equivalent to 30% using the 1997 PDRS and about 10% using the 2005 PDRS. After modifications, 30% became 38% and 10% became 12%.

This matter proceeded to trial and the trial judge determined that Zavala's injuries resulted in 38% permanent disability under the 1997 PDRS. The trial judge explained that this was based on Zavala's credible and unrebutted testimony and Dr. Rahman's opinion. In addition, the judge concluded that the 1997 PDRS applied because the April 12, 2004 report by Dr. Miller was a comprehensive medical-legal report within the exception of section 4660(d).

Genlyte appealed this decision contending that the 2005 PDRS should have been used because Zavala was not yet permanent and stationary prior to January 1, 2005. The Appeals Board adopted the trial judge's decision and denied Genlyte's reconsideration. Genlyte and St. Paul Travelers Insurance petitioned for writ of review.

The Appeals Court, Second Appellate District agreed with the Appeals Board and denied defendant's petition. It held that under section 4660(d), a comprehensive medical-legal report, like a treating physician's report, must contain an indication of the existence of permanent disability to trigger use of the pre-2005 schedule.

COMMENTS: For 2003 date of injury, 38% is equal to $33,670.00 at the maximum rate of $185.00 per week while 12% is equal to $7,076.25 at the maximum rate of $185.00 per week, a difference of $26,593.75!