Permanent Disability Defined for Injuries 1/1/05 and Beyond

Comment: The adoption of the AMA Guidelines was designed to reduce Applicant's benefits. The AMA Guidelines some have reported may present a 20 to 30 percent reduction.  Some estimates have it between 70 to 80 percent reductions.  Injured Workers have the Governor and the State Legislators to thank for this reduction.  If you receive a small permanent disability for your injury which you think is substantial in nature as to its impact your ability to work and earn money, you need to complain to the Governor and the State Legislators.  Nothing will be done to help fellow injured workers if this is not done.  Complain!  Further, if they don't want to listen or return your calls, vote them out of office!  Make them share some of the pain and show them the door.

Labor Code Section 4660(a) provides "In determining the percentages of permanent disability, account shall be taken of the nature of the physical injury or disfigurement, the occupation of the injured employee, and his or her age at the time of the injury, consideration being given to an employee's diminished future earning capacity.  (b) (1) For purposes of this section, the "nature of the physical injury or disfigurement" shall incorporate the descriptions and
measurements of physical impairments and the corresponding percentages of impairments published in the American Medical Association (AMA) Guides to the Evaluation of Permanent Impairment (5th Edition)   (2) For purposes of this section, an employee's diminished future earning capacity shall be a numeric formula based on empirical data and findings that aggregate the average percentage of long-term loss of income resulting from each type of injury for similarly situated employees.  The administrative director shall formulate the adjusted rating schedule based on empirical data and findings from the Evaluation of California's Permanent Disability Rating Schedule, Interim Report (December 2003), prepared by the RAND Institute for Civil Justice, and upon data from additional empirical studies.    (c) The administrative director shall amend the schedule for the determination of the percentage of permanent disability in accordance with this section at least once every five years. This schedule shall be available for public inspection and, without formal introduction in evidence, shall be prima facie evidence of the percentage of permanent disability to be attributed to each injury covered by the schedule.    (d) The 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 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.  (e) On or before January 1, 2005, the administrative director
shall adopt regulations to implement the changes made to this section
by the act that added this subdivision.
 

Benefits Increased or Reduced Based upon Return to Work

The Labor Code Section 4658 (d) (2) provides that iIf, within 60 days of a disability becoming permanent and
stationary, an employer does not offer the injured employee regular work, modified work, or alternative work, in the form and manner prescribed by the administrative director, for a period of at least 12 months, each disability payment remaining to be paid to the injured employee from the date of the end of the 60-day period shall be paid in accordance with paragraph (1) and increased by 15 percent.   This paragraph shall not apply to an employer that employs fewer than 50 employees. Labor Code Section 4658(d) (3) (A) If, within 60 days of a disability becoming permanent and stationary, an employer offers the injured employee regular work,  modified work, or alternative work, in the form and manner prescribed by the administrative director, for a period of at least 12 months, and regardless of whether the injured employee accepts or rejects the offer, each disability payment remaining to be paid to the injured employee from the date the offer was made shall be paid in accordance with paragraph (1) and decreased by 15 percent. (B) If the regular work, modified work, or alternative work is terminated by the employer before the end of the period for which
disability payments are due the injured employee, the amount of each of the remaining disability payments shall be paid in accordance with paragraph (1) and increased by 15 percent.  An employee who voluntarily terminates employment shall not be eligible for payment under this subparagraph.  This paragraph shall not apply to an employer that employs fewer than 50 employees.
 

Timing of Permanent Disability Payments

Labor Code Section 4650(b) provides if the injury causes permanent disability, the first payment shall be made within 14 days after the date of last payment of temporary disability indemnity.  When the last payment of temporary disability indemnity has been made pursuant to subdivision (c) of Section 4656, and regardless of whether the extent of permanent disability can be determined at that date, the employer nevertheless shall commence the timely payment required by this subdivision and shall continue to make these payments until the employer's reasonable
estimate of permanent disability indemnity due has been paid, and if the amount of permanent disability indemnity due has been determined, until that amount has been paid.   (c) Payment of temporary or permanent disability indemnity
subsequent to the first payment shall be made as due every two weeks
on the day designated with the first payment.