Acme Steel v. WCAB (Borman)

 

 

 

 

 

 

 

 

 

 

 

Filed 7/16/13  Acme Steel v. WCAB (Borman) CA1/1

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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opinion has not been certified for publication or ordered published for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

 

FIRST
APPELLATE DISTRICT

 

DIVISION
ONE

 

 

 
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ACME STEEL et al.,             Petitioners, v. WORKERS’ COMPENSATION APPEALS BOARD and MICHAEL BORMAN,             Respondents.

A137915               WCAB Nos. ADJ1785165,              ADJ2923303)

 

            Acme
Steel, insured by Sentry Claims Service and Zurich North America, (Acme),
petitions for a writ of review (see Lab. Code, §§ 5950, 5952;href="#_ftn1" name="_ftnref1" title="">[1]
Cal. Rules of Court, rule 8.495), contending the Workers’ Compensation Appeals
Board (WCAB) erred by awarding respondent Michael Borman 100 percent permanent
disability without apportionment for prior hearing loss.  We will grant the petition.

Background

            Michael
Borman sustained continuous trauma href="http://www.sandiegohealthdirectory.com/">injury to his ears (hearing
loss), bilateral upper extremities, neck and head during the year prior to his
last day at work for  Acme as a
steelworker on October 16, 2003.  Borman was examined by three different Agreed
Medical Examiners (AME), namely, Dr. John Devor (general orthopedics); Dr. Robert Ansel (neurology) and Dr. David Schindler
(hearing loss).  In his July 2004 report,
AME Dr. Schindler apportioned hearing loss based on both non-industrial,
degenerative causes and prior injury, opining that Borman’s 100 percent
“binaural neurosensory hearing loss” was 60 percent due to “occupational
factors, specifically noise induced hearing loss.  Approximately 40 percent of Mr. Borman’s
hearing loss is the result of non-occupational factors, particularly cochlear
degeneration.”  Dr. Schindler based this
opinion on his proposed etiology of the hearing loss, stating that “The
high-frequency progressive hearing loss is consistent with acouso-trauma of
noise exposure as described both by Dr. Manace and the patient.  The low frequency hearing loss seen at the 250
[hertz (Hz)] through 750 Hz position on the pure tone audiometry is not
consistent with noise[-]induced hearing loss. 
This form of hearing loss is suspicious of a degenerative process of the
cochlea.  The etiology of that
degenerative process is unknown but is most consistent [with] a congenital
degeneration of the entire organ of Corti.” 
Dr. Schindler’s July 2004 report also notes Borman described how an
explosion at the factory in December 1994 threw him 10 to 15 feet and knocked
him out momentarily.  Borman told Dr.
Schindler he filed a workers’ compensation claim following the explosion and
was rated at 22 percent disability due to hearing loss, and his hearing has
gradually gotten worse since then.

            In
a later report prepared in June 2009, Dr. Schindler elaborated on apportionment
of hearing loss.  Dr. Schindler noted
Borman was examined by Dr. David Manace in October 1994.  Dr. Manace documented that the explosion
experienced by Borman occurred in 1993, found Borman had “a 37.5 percent
monaural loss in the right ear and a 37.5 percent monaural hearing loss in the
left ear for a 37.5 percent binaural hearing loss at that time,” and concluded
Borman had a bilateral high-frequency hearing loss consistent with accumulated
noise exposure.  Dr. Manace recommended
Borman should be fitted with hearing aids. 
Dr. Schindler opined that the “further hearing loss that occurred after
Dr. Menace’s report of 1994 was the result of both cochlear degeneration in the
lower frequencies and persistent noise exposure in the higher
frequencies.”  Furthermore, Dr. Schindler
reiterated his conclusion that Borman had “a 100 percent hearing loss
. . . apportioned . . . as 60 percent due to noise-induced
hearing loss and 40 percent due to other factors.  The noise-induced hearing loss
. . . includes the explosion component that was found by Dr. Menace,”
adding, “I did not apportion Dr. Menace’s portion of the hearing loss.”

            In
July 2012, the Workers’ Compensation Administrative Law Judge (WCALJ) issued a
“Findings and Award” and “Opinion on Decision” following proceedings held in
April 2012 at which Borman was the only witness.  The WCALJ found Borman’s injury ratable under
the post-2004 Permanent Disability Ratings Schedule.  The WCALJ also found Borman a
straight-forward and credible witness, noting that during testimony he “clearly
had difficulty understanding questions and had to face his questioners directly
in order to ‘lip read’ as well as listen. 
His cochlear implants have improved his hearing but his hearing . . .
is quite limited[,] . . . particular[ly] . . . in crowded
or noisy environments, and [he] cannot function effectively on the phone.”  The WCALJ found Borman effectively rebutted
any Diminished Future Earnings Capacity (DFEC)href="#_ftn2" name="_ftnref2" title="">>[2]
and showed 100 percent loss of earning capacity entitling him to permanent and
total disability.  The WCALJ based the
latter finding on expert vocational testimony proffered by Borman showing there
was no job in the open labor market that could accommodate Borman’s “difficulty
with oral communications, limitations with use of the upper extremities,
limited mobility, need for daily narcotic medication, rests and serious
headaches.”  Additionally, the WCALJ
found that “Labor Code section 4664^{[href="#_ftn3" name="_ftnref3" title="">>[3]]}
is not pertinent as prior to the instant cumulative trauma injury there was no
earnings loss due to the prior award of permanent disability for hearing loss,”
reasoning that “Borman continued to work [after] the prior award for prior
hearing loss, [and his] hearing loss progressed to the point where he required
implants, which . . . have severe limitations.”

            In
August 2012, Acme sought reconsideration of the award, contending solely that
the WCALJ exceeded her powers by failing to apportion href="http://www.sandiegohealthdirectory.com/">injury pursuant to section
4663href="#_ftn4" name="_ftnref4" title="">[4]
because there was evidence showing hearing loss was 40 percent non-industrial
and 37.5 percent from a prior hearing loss.

            In
November 2012, the WCALJ issued her report and recommendation on petition for
reconsideration.  The WCALJ noted Acme
“essentially claims that I am bound to follow [AME’s] and may not find the
schedule rebutted by wage loss vocational testimony.”  The WCALJ stated she was not bound by the
findings of the AME’s “when there is convincing vocational testimony regarding
loss of earning capacity.”  In this
regard, the WCALJ relied on expert testimony that “the appearance of the
cochlear implants themselves act as a bar to employment” due the “prominent
[appearance] on both sides of the head,” which is “still quite an uncommon
sight.”  The WCALJ found that the
“ â€˜new’ element of the deterrent appearance of the contacts and wires and
shaved head spots associated with the implant, combined with the various
medical limitations renders the Applicant unemployable and thus he has a
complete loss of earning capacity.”  In
January 2013, the WCAB summarily denied Acme’s petition for reconsideration
“for the reasons stated by the [WCALJ] in said Opinion and Report, which we
adopt and incorporate . . . .”

Discussion

            “When a workers’ compensation decision rests on the Board’s
erroneous interpretation of the law, the reviewing court will annul the
decision.  [Citation.]  The Board’s conclusions on questions of law
are reviewed de novo.”  (>Benson v. Workers’ Comp. Appeals Bd.
(2009) 170 Cal.App.4th 1535, 1542–1543 (Benson).)


            Here, we do not take issue
with the WCALJ’s conclusion that Borman could rebut the rating schedule’s DFEC
by offering vocational expert testimony showing 100 percent loss of earning
capacity.  (See Ogilvie v. Workers’ Comp. Appeals Bd. (2011) 197 Cal.App.4th 1262,
1267, 1274–1275 [remanding for further proceedings to allow applicant
opportunity to rebut “permanent disability rating of 28 percent, as adjusted
due to her [DFEC], age, occupation, and apportionment for nonindustrial and
preexisting disability”].)  The WCALJ
erred, however, by failing to address the issue of apportionment.  As the Supreme Court stated in >Brodie v. Workers’ Comp. Appeals Bd.
(2007) 40 Cal.4th 1313 (Brodie):  “Employers must compensate injured workers
only for that portion of their permanent disability attributable to a current
industrial injury, not for that portion attributable to previous injuries or to
nonindustrial factors.  ‘Apportionment is
the process employed by the Board to segregate the residuals of an industrial
injury from those attributable to other href="http://www.sandiegohealthdirectory.com/">industrial injuries, or to
nonindustrial factors, in order to fairly allocate the legal
responsibility.’  [Citation.]”  (Id.
at p. 1321.) 

            Sections
4663 and 4664 (see ante, fns. 3, 4),
enacted in 2004 as part of Senate Bill No. 899 (see ante, fn. 2), changed the former process of apportionment pursuant
to which apportionment based on causation was prohibited, where employers were
“ â€˜liable for any portion of a disability that would not have occurred but
for the current industrial cause’ â€ and employees were granted
“ â€˜wide latitude to disprove apportionment based on prior permanent
disability awards by demonstrating that they had substantially rehabilitated
the injury.  [Citation.]’  [Citation.]” 
(State Comp. Ins. Fund v. Workers’
Comp. Appeals Bd. (2011) 201 Cal.App.4th 443, 450–451 (State Comp. Fund), citing Brodie,
supra, 40 Cal.4th 1313, 1326–1327.) 
“The plain language of new sections 4663 and 4664,” noted the Supreme
Court, “demonstrates they were intended to reverse these features” of the
former workers’ compensation system.  (>Brodie, supra, at p. 1327.)  Under the revised workers’ compensation
system introduced by Senate Bill No. 899, apportionment was “based on
causation” (§ 4663, subd. (a)), and the “the new approach to apportionment is
to look at the current disability and parcel out its causative
sources—nonindustrial, prior industrial, current industrial—and decide the
amount directly caused by the current industrial source.  This approach requires thorough consideration
of past injuries, not disregard of them.” 
(Brodie, supra, at p.
1328.) 

            In
short, the “clear intent” of the Legislature in enacting Senate Bill No. 899
was “to charge employers only with that percentage of permanent disability
directly caused by the current industrial injury.”  (Brodie,
supra, 40 Cal.4th 1313, 1332; see also State
Comp. Fund, supra, 201 Cal.App.4th 443, 451.)  “Therefore, evaluating physicians, the WCJ,
and the Board must ‘make an
apportionment determination by finding what approximate percentage of the
permanent disability was caused by the direct result of injury arising out of
and occurring in the course of employment and what approximate percentage of
the permanent disability was caused by other factors both before and subsequent
to the industrial injury, including prior industrial injuries.’
[Citations.]”  (State Comp. Fund, supra, at p. 451, italics added.)  Indeed, apportionment is excused only under
extremely “ â€˜limited circumstances, . . . when the evaluating
physician cannot parcel out, with reasonable medical probability, the
approximate percentages to which each distinct industrial injury causally
contributed to the employee’s overall permanent disability. . . .’  [Citations.]” 
(Id. at p. 452.)

            Here,
the WCAB ignored substantial medical
evidence presented by Dr. Schindler, as summarized above, showing that
Borman’s 100 percent loss of hearing could not be attributed solely to the
current cumulative trauma.  (See >E.L. Yeager Construction v. Workers’ Comp.
Appeals Bd. (2006) 145 Cal.App.4th 922, 928 [“In order to constitute
substantial evidence, a medical opinion must be predicated on reasonable medical
probability.”].)    Faced with this
unrebutted substantial medical evidence from the AME, the WCAB should have
parceled out the “causative sources—nonindustrial, prior industrial, current
industrial—and decide[d] the amount directly caused by the current industrial
source.”  (Brodie, supra, 40 Cal.4th 1313, 1328.) 

            Borman’s
arguments to the contrary are unpersuasive. 
In this regard, we reject Borman’s contention that Dr. Schindler’s
reports and opinions do not constitute substantial evidence of apportionment.  Borman also asserts his testimony that he
received a 22 percent permanent disability award for hearing loss sustained as
a result of an explosion in 1994 is unreliable hearsay.  However, it is irrelevant to apportionment
whether or not Borman in fact received a prior 22 percent permanent disability
award for hearing loss.  (See >Benson, supra, 170 Cal.App.4th 1535,
1549–1550, & fn. 14 [apportionment required for prior injury regardless of
whether worker received prior award of permanent disability for the injury].)href="#_ftn5" name="_ftnref5" title="">[5]  In sum, the WCAB’s failure to apportion the
hearing loss portion of the current cumulative trauma is contrary to the law,
and, as a consequence, the award must be annulled.

Disposition

            The
petition for review is granted, the order denying consideration is annulled,
and the matter is remanded to the WCAB with directions to order the WCALJ to
make an award consistent with this opinion.

 

 

 
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	__________________________________ Dondero, Acting P. J.
We concur:        __________________________________ Banke, J.     __________________________________ Sepulveda, J.*

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

*
Retired Associate Justice of the Court of Appeal, First Appellate District,
Division Four, assigned by the Chief Justice pursuant to article VI, section 6
of the California Constitution.