Virginia Surety Co. v. WCAB (Echelard)

Filed 8/21/08 Virginia Surety Co. v. WCAB (Echelard) CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT^*

ORIGINAL PROCEEDINGS; petition for writ of review from a decision of the Workers Compensation Appeals Board. Alfonso J. Moresi, Rick Dietrich, and Ronnie G. Caplane, Commissioners. Dominic E. Marcelli, Workers Compensation Administrative Law Judge.

Grancell, Lebovitz, Stander, Reubens & Thomas and Sally J. Freeman for Petitioner.

No appearance by Respondent Workers Compensation Appeals Board.

Thomas J. Tusan for Respondent Jason Echelard.

-ooOoo-

Virginia Surety Company (Virginia Surety) petitions for a writ of review from a decision of the Workers Compensation Appeals Board (WCAB) contending the WCAB applied the incorrect Schedule for Rating Permanent Disabilities (PDRS^[1]). (Lab. Code,  4660, subd. (d).^[2]) We conclude the WCAB appropriately applied the former 1997 PDRS because a treating physician issued a report before January 1, 2005, indicating the existence of permanent disability. Accordingly, we will deny the petition.

BACKGROUND

Jason Echelard was employed as a construction worker by California Quality Interiors in Fresno on October 29, 2004, when he fell approximately 20 feet from an elevated platform onto a concrete floor. California Quality Interiorss insurer for workers compensation purposes, Virginia Surety, admitted the accident arose out of and in the course of Echelards employment causing injury to his thoracic spine, right wrist, and right elbow. After undergoing initial surgery at St. Agnes Medical Center, he was subsequently treated by several physicians, including Thomas W. Thomas, M.D., and Troy H. Smith, M.D.

Virginia Surety provided Echelard with medical treatment and temporary disability payments, but disputed whether his permanent disability should be rated under the 1997 or 2005 PDRS. On January 7, 2008, a workers compensation administrative law judge (WCJ) issued a Findings and Award concluding the 1997 PDRS applied in rating Echelards disability, resulting in a 45 percent permanent disability award amounting to $50,150 over 250.75 weeks. Applying an exception to the general requirement to rate Echelards disability under the 2005 PDRS, the WCJ found pre-January 1, 2005, medical reporting from both Dr. Thomas and Dr. Smith indicated the existence of permanent disability.

Virginia Surety petitioned the WCAB for reconsideration contending Echelards disability should have been rated under the 2005 PDRS because there was no medical determination before 2005 finding Echelard permanent and stationary.^[3] (Vera v. Workers Comp. Appeals Bd. (2007) 154 Cal.App.4th 996 (Vera).) The WCJs Report and Recommendation to the WCAB explained the decision was based on more recently published appellate decisions no longer requiring a pre-2005 medical determination of permanent and stationary status in authorizing the use of the 1997 PDRS. (Genlyte Group, LLC v. Workers Comp. Appeals Bd. (Zavala) (2008) 158 Cal.App.4th 705, 718-722 (Zavala); Zenith Ins. Co. v. Workers Comp. Appeals Bd. (Cugini) (2008) 159 Cal.App.4th 483, 496 (Cugini).) In a March 25, 2008, Opinion and Order Denying Reconsideration, the WCAB agreed that Echelards disability should be rated under the 1997 PDRS based on Dr. Thomass, but not Dr. Smiths, medical reporting.

DISCUSSION

Effective April 19, 2004, the Legislature adopted omnibus reforms to the states workers compensation system as part of Senate Bill No. 899. The legislation was an urgency measure, effective immediately, and designed to alleviate a perceived crisis in skyrocketing workers compensation costs. (Brodie v. Workers Comp. Appeals Bd. (2007) 40 Cal.4th 1313, 1323, 1329.) Among the changes, the Administrative Director of the Division of Workers Compensation was required to amend the PDRS effective January 1, 2005, and every five years thereafter. ( 4660, subds. (c) & (e); Stats. 2004, ch. 34,  32.) The Legislature specifically mandated the revisions 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.). ( 4660, subd. (b)(1).) As directed, the Administrative Director subsequently adopted a new PDRS effective January 1, 2005. (Cal. Code Regs., tit. 8,  9805.) Given Virginia Suretys dissatisfaction with the WCABs decision, we presume the application of the 2005 PDRS would result in a lower permanent disability rating, and therefore a lower monetary award, than the 1997 PDRS.

Establishing the use of the 2005 PDRS, section 4660, subdivision (d), now provides:

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. (Italics added.)

The interpretation of section 4660, subdivision (d) is a legal issue subject to our de novo review. (Costco Wholesale Corp. v. Workers Comp. Appeals Bd. (Chavez)(2007) 151 Cal.App.4th 148, 153.) While the statute is not a model of linguistic clarity, its intent is clear. The intent is to apply the rating schedule in effect on the date of injury to injuries suffered prior to 2005 in only three circumstances: (1) when a comprehensive medical-legal report issued prior to 2005 indicates permanent disability, (2) when a report from a treating physician issued prior to 2005 indicates permanent disability, and (3) when an employer has been required to give notice under section 4061 prior to 2005 concerning its intentions regarding payment of permanent disability benefits. This interpretation supports the legislative goal of bringing as many cases as possible under the new workers compensation law. (Chavez, supra, at p.157.) On the other hand, when none of the three circumstances has occurred before January 1, 2005, then the 2005 schedule applies. (Cugini, supra,159 Cal.App.4th at p. 492, citing Energetic Painting and Drywall, Inc. v. Workers Comp. Appeals Bd. (2007) 153 Cal.App.4th 633 and Aldi v. Carr, McClellan, Ingersoll, Thompson & Horn (2006) 71 Cal.Comp.Cases 783 [writ den.].)

Concluding Echelards permanent disability must be rated under the 1997 PDRS, the WCAB found the second exception listed in section 4660, subdivision (d) applied because a report by a treating physician, Dr. Thomas, indicated the existence of permanent disability. Acknowledging a split of authority as to whether the exception required a pre-2005 medical finding that the injured employee was permanent and stationary status or instead demonstrated an indication of permanent disability, the WCAB explained:

There are presently two lines of competing authority in the California Court[s] of Appeal regarding whether a report must state that an injured workers condition is permanent and stationary in order to constitute a report indicating the existence of permanent disability. In Vera, supra, the Fourth District Court of Appeal held that in order for a report to indicat[e] the existence of permanent disability, the report must indicate that the claimant has a ratable disability that has reached permanent and stationary status. However, more recently, the Second District Court of Appeal has taken the opposite view . In Zavala and Cugini, the Second District Court of Appeal held that a report may establish one of the section 4660(d) exceptions if it indicates disability that is permanent even if that disability is not yet stationary.

Noting its disagreement with Vera, the WCAB followed the holdings of Zavala and Cugini in concluding that a report need not state that an injured worker is permanent and stationary in order for it to contain an indication of permanent disability .

Under the plain language of section 4660, subdivision (d), we too agree that the medical reporting only need indicat[e] the existence of permanent disability. As Zavala concluded, The Legislature has repeatedly demonstrated its ability to specify permanent and stationary status when that is what it intends. (Zavala, supra, 158 Cal.App.4th at p. 719.) We are reluctant to conclude that the Legislatures use of different terms, at different times in the statutory scheme, is meaningless. (Ibid.) Also summarized in Cugini, supra, 159 Cal.App.4th at pp. 497-498:

[S]ection 4660(d) is worded broadly to include any comprehensive medical-legal or treating physician report indicating the existence of permanent disability. The language is not limited to what the Vera court describes as the typical final or permanent stationary report, in which the extent of ratable permanent disability is reported. In an appropriate case, a physician is not precluded from reporting that permanent disability exists prior to permanent and stationary status or the extent of ratable disability is known. (Fns. omitted.)

The medical evidence indicating the existence of permanent disability must nevertheless be based on substantial evidence. (Cugini, supra, 159 Cal.App.4th at p 495.) The term substantial evidence means evidence, which if true, has probative force on the issues. It is more than a mere scintilla, and means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. It must be reasonable in nature, credible, and of solid value. (Braewood Convalescent Hospital v. Workers Comp. Appeals Bd. (Bolton) (1983) 34 Cal.3d 159, 164.) The report of a single physician, even if in conflict with other medical opinions, may represent substantial evidence to support a finding of fact. (Place v. Workmens Comp. Appeals Bd. (1970) 3 Cal.3d 372, 378.)

The WCAB here concluded Dr. Thomass December 20, 2004, report, coupled with his subsequent July 24, 2007, deposition explaining his earlier report, constituted substantial evidence of a pre-2005 indication of permanent disability. Virginia Surety argues that even assuming contrary to Vera that permanent and stationary status is not required to satisfy Labor Code  4660(d)s permanent disability requirement, there is still in this case no report prior to January 1, 2005 which within its four corners indicates with substantial medical probability that the applicant either is permanently disabled or even that he is going to be permanently disabled. Virginia Surety, however, offers no legal support for its proposition that a pre-2005 medical report may only be considered within its four corners. While we agree the report must be in existence before 2005, we disagree the WCAB may not consider any subsequent explanation concerning the same report from the authoring physician.

On December 20, 2004, Dr. Thomas reported:

I spent quite some time trying to discuss with Jason and his mother the significance of these injuries and the relatively guarded prognosis. [] Considering the multiple injuries in [the right upper extremity] and potential instability of the coronoid, etc., I think an implant is much more desirable. I had a long discussion with Jason and his mother about implants and their longevity, potential problems in the long term, and so forth. Activity modifications and so forth for the rest of [his] life are encouraged.

Discussing the above reporting during his July 24, 2007, deposition, Dr. Thomas explained that his reference to a relatively guarded prognosis referred to Echelards potential for some decrease or loss of motion and subsequent decrease and loss of function, and potentially the possibility of ongoing pain; and the fact that, with this type of injury, this far after the injury the results of surgical treatment would probably not be extremely good. Dr. Thomas also expressed his opinion he did not believe Echelard would heal completely.

Reviewing Dr. Thomass medical reporting and testimony, the WCAB reasoned:

Throughout the numerous reports included in applicants Exhibit 2, it is apparent that Dr. Thomas took a complete history and conducted an adequate examination which included several x-rays and a CT scan. Furthermore, he opined that applicant would have some permanent disability stating that applicant had a relatively guarded prognosis, that life-long activity modification were encouraged, that there was potential decrease or loss of motion and function and of ongoing pain, and that he did not believe applicant could heal completely even following the surgery. We find that these statements are framed in terms of reasonable medical probability, are not speculative, and are substantial evidence in light of the entire record.

Under the WCABs reasoning and Dr. Thomass medical reporting, we agree the record supports an indication of permanent disability permitting the use of the 1997 PDRS. Accordingly, we will not disturb the WCABs decision.

DISPOSITION

The Petition for Writ of Review is denied. This opinion is final forthwith as to this court.

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^*Before Ardaiz, P.J., Cornell, J., and Kane, J.

^[1] The Schedule for Rating Permanent Disabilities is commonly referred to as the Permanent Disability Rating Schedule.

^[2] Further statutory references are to the Labor Code.

^[3] A disability is considered permanent after the employee has reached maximum medical improvement or his or her condition has been stationary for a reasonable period of time. (Department of Rehabilitation v. Workers Comp. Appeals Bd. (Lauher) (2003) 30 Cal.4th 1281, 1292, citing Gee v. Workers Comp. Appeals Bd. (2002) 96 Cal.App.4th 1418, 1422, fn. 3; Cal. Code Regs., tit. 8, 10152; see also Cal. Code of Regs., tit. 8,  9785(a)(8).)