Workers’ Compensation · Primary-source case analysis
Pendergrass: The Last Temporary-Disability Payment Controlled the Rating Schedule
Decision: Pendergrass v. Duggan Plumbing, No. SAL 0110868 (WCAB Apr. 6, 2007) (en banc).
Pendergrass resolved a transition question under Cal. Lab. Code § 4660(d) about whether the 1997 or 2005 permanent-disability schedule governed an older injury.
The dispute arose at the schedule transition
The injury predated January 1, 2005, but the permanent-disability rating occurred after the new schedule took effect. The statutory exception turned on whether the employer had been required to give a section 4061 notice before 2005.
Section 4061 ties notice to the last payment
The governing version of section 4061 required the permanent-disability notice together with the last payment of temporary disability. The Board focused on the period covered by that last payment rather than an earlier first-payment date.
The last-payment date controlled this case
The rule preserved the 1997 schedule when the last payment covered a disability period ending before January 1, 2005. But Pendergrass’s payments continued through July 19, 2005. The notice-based exception therefore did not apply on his facts, and the 2005 schedule governed. Pendergrass, slip opinion, pages 2, 6–8.
Disposition
The WCAB rescinded its January 24, 2007 en banc decision and affirmed the judge’s original order using the 2005 schedule. The April 6 decision is the later ruling analyzed here. Its holding concerns the historical transition language then in section 4660(d), not schedule selection for every current injury. Pendergrass, slip opinion, pages 8–9.
Key takeaways
- Reconstruct the exact temporary-disability payment history.
- Distinguish payment date from the period the final payment covered.
- Apply the statutory language in force for the injury and rating period.
- Preserve benefit notices that establish when duties arose.
Analyze disability rating schedule application
Our office can examine temporary disability payment dates and notice histories to determine the governing permanent disability rating schedule. Bring your complete temporary disability payment printout, section 4061 notices, and medical evaluation reports. Call (949) 343-9735 or email office@mishrax.com.