When I graduated from college, I never thought I would have any real need for what I had studied. After all, that was the whole reason I went to law school. What did I study, you might ask? That all-useful and everyday-practical subject called linguistics, the study of language.
Along came SB 899 and the enactment of Labor Code section 4660(d), and not too long thereafter, I found myself in front of a workers’ compensation judge arguing, with all due respect of course, that he had no idea what he was talking about. From the perspective of grammar and syntax, anyone could see that the phrase “indicating the existence of permanent disability” modified both “primary treating physician’s report” as well as “comprehensive medical-legal.” I have to admit that for the first time in my legal career. I could see a glazed look come over the eyes of this judge as I threw around terms such as antecedent, modifier, referent, gerund, and relative clause. I was in my element, and he was most assuredly out of his.
That case went to trial and, not surprisingly, defendants ultimately lost. While the WCAB granted defendants’ Petition for Reconsideration, it offered no analysis or guidance. Instead, the Court stated that it could not reach a decision within the allotted time and wanted more time to research the matter. Then, in an odd twist of fate, a panel of commissioners, two of whom were the same commissioners who signed the order granting our petition, issued an opinion in Torres v. SDM Precision Products.
In Torres, the issue before the court was whether a comprehensive medical-legal report issued prior to January 1, 2005, had to indicate the evidence of the existence of permanent disability in order for the old permanent disability rating schedule (1997 PDRS) to apply. The comprehensive medical-legal report in Torres was an AOE/COE report obtained on March 18, 2004. It did not find permanent disability.
The panel (Rabine, Brass, and Caplane) held that in order for the 1997 PDRS to apply to a pre-1/1/05 date of injury, “it is sufficient that ‘there has been’ a ‘comprehensive medical-legal report’ for any reason.” In other words, obtaining an AOE/COE report prior to January 1, 2005, made the 1997 PDRS applicable. The WCAB claimed that “the grammar of the third sentence of section 4660(d) does not require a ‘comprehensive medical-legal report’ that also indicates the existence of permanent disability, in order to the prior rating schedule to apply.” This conclusion was based on a cursory analysis of the rules of statutory interpretation and surprisingly (or not if you know how attorneys can be) a whole body of case law dealing with a concept called the “last antecedent rule.” Here’s where my B.A. in linguistics comes in handy.
An antecedent is a linguistic term meaning a phrase or a clause that is replaced later in the text by some other word or words, usually a pronoun. This statutory rule of interpretation provides that “qualifying words, phrases, and clauses are to be applied to the words or phrases immediately preceding and are not to be construed as extending to or including others more remote” [White v. County of Sacramento (1982) 31 Cal. 3d 676, 680]. Further, “evidence that a qualifying phrase is supposed to apply to all antecedents instead of only to the immediately preceding one may be found in the fact that it is separated from the antecedents by a comma” [Garcetti v. Superior Ct. of Los Angeles (Blake) (2000) 85 Cal. App. 4th 1113, 1120].
The foregoing is the entire analysis provided by the Torres Court. The WCAB mentioned only one of several of the last antecedent rules that might apply, the commissioners failed to then consider how that exception might apply in this particular case. To make matters worse, the Court also failed to consider an overarching principle of statutory interpretation. That guiding principle acknowledges the importance of punctuation and grammar, but notes that “neither is controlling unless the result is in harmony with the clearly expressed intent of the Legislature . . . [A] court must also look to a variety of extrinsic aids, including the ostensible objects to be achieved, the evils to be remedied, the legislative history, public policy, contemporaneous administrative construction, and the statutory scheme of which the statute is a part” [Building Industry Assoc. of San Diego Co. v. State Water Resources Control Board (2004) 124 Cal. App. 4th 866, 883].
Had the Torres Board considered the foregoing and read the Aldi decision, it would have noted that the entire WCAB had strongly determined that SB 899 “is an urgency statute necessary for the immediate preservation of the public peace, health or safety within the meaning of… the Constitution and shall go into immediate effect.” There, the Court stated that section 49 reflects “the Legislature’s intent to solve the [workers’ compensation] crisis as quickly as possible by bringing as many cases as possible under the umbrella of the new law” [citing Abney v. Aera Energy (2004) 69 CCC 1552].
Just why Torres didn’t fall under that umbrella is unclear at best. This decision did nothing to promote “uniformity and consistency” (the stated goal of Labor Code section 4660). It is as if the Torres‘ Commissioners put on blinders before applying their narrow interpretation of Labor Code 4660(d). Had it considered the legislative intent expressed in both Sections 4660 and 49, the outcome would have been different. Moreover, if the WCAB Commissioners had only flipped a few pages back in their Labor Code to section 4658(d)(4), they would have found their missing comma and reached the opposite conclusion.
Unfortunately, we need to wait for an appellate court to give us the correct grammatical and statutory interpretation.
My linguistics professors would be so proud.
Louis A. Larres, Esq. is a Partner and Managing Attorney of Bradford & Barthel’s Fresno office.
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