The Ramifications of Pendergrass & Baglioni

The Ramifications of Pendergrass & Baglioni
by Donald R. Barthel, Esq.
  CAAA Celebrates Christmas in January with Pendergrass (1/24/07)

The WCAB's recent en banc decision, Pendergrass v. SCIF (1/24/07), gave cause for unexpected celebration among California applicant attorneys.

In a blatant attempt to apply the old, and significantly more expensive,1997 Permanent Disability Rating Schedule (PDRS) to virtually all pre-1/1/05 injuries, the WCAB issued an en banc decision providing that applicants who are TD prior to 1/1/05 will not be rated pursuant to the 2005 PDRS/AMA Guides (5th). In so doing, the WCAB has increased PD awards by greater than 50 percent.*

What happened? Applicant suffered an admitted injury and received TD from 6/30/04 through 7/19/05. With this information, the WCAB focused on Labor Code section 4660(d), which provides that the 2005 PDRS will apply to pre-1/1/05 injures unless, inter alia, "the employer is... required to provide the notice required by Section 4061 to the injured worker." This rule, concluded the majority of the commissioners, placed applicant under the 1997 PDRS.

What is a "Section 4061" notice? It is the end-of-the-TD-gravy-train notice that advises the applicant that TD is ending and discusses the prospects of PD (that is, PD "will be paid", "may or is payable, but that the amount cannot be determined" and so on).