Mills v. WCAB (Sunrise Builders)

Filed 6/20/08 Mills v. WCAB (Sunrise Builders) 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Frank M. Brass, Alfonso J. Moresi, and James C. Cuneo, Commissioners. Dominic E. Marcelli, Workers Compensation Administrative Law Judge.

Douglas A. Low, for Petitioner.

No appearance by Respondent Workers Compensation Appeals Board.

Grancell, Lebovitz, Stander, Barns and Reubens, and David J. Chun, for Respondents Sunrise Builders and Virginia Surety Company, adjusted by Applied Risk Services.

-ooOoo-

Roger Mills petitions for a writ of review from a decision of the Workers Compensation Appeals Board (WCAB). (Lab. Code,^[1] 5950, 5952; Cal. Rules of Court, rule 8.494.) Mills contends the WCAB misconstrued the law of apportionment as amended by Senate Bill No. 899 (Stats 2004, ch. 34,  33-34, 37-38), and erred by relying on the opinion of the agreed medical examiner. Finding the WCABs apportionment determination supported by both the law and substantial evidence, we will deny the petition.

BACKGROUND

Mills was in the drywall business for approximately 43 years before going to work for Sunrise Builders (Sunrise) in August 2002. Although Mills had a medical history of pulmonary problems, he was able to perform the duties of a drywall finisher -- putting tape on installed sheetrock, placing mud over the nails and seams, and sanding the walls in preparation for painting. While working for Sunrise, he also worked as a drywall hanger, which required he lift up to 80-pound pieces of sheetrock approximately 30 to 100 times per day.

On October 7, 2002, Mills fell from a scaffold while working for Sunrise.^[2] Sunrise admitted injuries to Millss left foot, right ankle, both knees, hips, back, right shoulder, and ribs arose out of and occurred in the course of his employment. Sunrise disputed, however, Millss additional claim that the injuries aggravated his prior respiratory disability. Mills has been confined to using a wheelchair since early 2003.

Mills filed an application for adjudication of claim with the WCAB in April 2004, and the parties obtained a significant amount of discovery. Among the medical evaluators, Dr. Richard Baker served as an agreed medical examiner (AME) in orthopedics. In his deposition testimony, Dr. Baker opined the combination of the industrial injury and pulmonary condition rendered Mills totally disabled, of which the nonindustrial pulmonary condition was 60 percent responsible. Reviewing prior reports from various treating physicians, Dr. Baker reported that Dr. Dhillon and Dr. Gillis both effectively considered Mills 100 percent disabled, and that Dr. Jay considered Mills 75 percent permanently disabled, from his preexisting pulmonary condition alone. On the pulmonary injury claim, Millss qualified medical examiner (QME), Dr. David Baum, did not believe the orthopedic injury contributed to the pathology of his lung disease, but that Millss pulmonary condition deteriorated much more rapidly because of his accident. Sunrises QME Dr. Roger Nacouzi meanwhile concluded Millss employment with Sunrise Builders did not cause, exacerbate or aggravate his preexisting pulmonary disease which caused 100 percent of his permanent disability. In March 2007, a workers compensation administrative law judge (WCJ) determined, consistent with the opinion of the AME, that Mills was 40 percent permanently disabled as a result of the industrial orthopedic injury and 60 percent permanently disabled as a result of his nonindustrial pulmonary condition. The WCJ concluded Mills did not sustain any pulmonary or respiratory injury arising out of and in the course of his employment with Sunrise or as a direct consequence of the admitted October 7, 2002, orthopedic injury.

Mills petitioned the WCAB for reconsideration, contending the new apportionment provisions of Senate Bill No. 899 could not be interpreted to allow for disabilities that develop after the industrial injury in a different region of the body, and that only the reporting of his QME, Dr. Baum, constituted substantial evidence. The WCJ filed a report and recommendation to the WCAB recommending the WCAB deny reconsideration.

The WCAB granted reconsideration and subsequently issued its own opinion adding additional reasoning to the WCJs report and recommendation. In denying Millss contentions, the WCAB explained that apportionment between industrial and nonindustrial factors depends upon the language used by the medical evaluators in addressing the issue of disability. Pointing to Dr. Bakers deposition testimony as the AME, the WCAB concluded Mills sustained two injuries -- an industrial injury causing 40 percent disability and a nonindustrial injury causing 60 percent disability. Accordingly, the WCAB agreed with the WCJs finding that Mills was entitled to only a 40 percent disability award. The WCAB noted that if it instead had concluded the injuries overlapped and subtracted the percentages of overlapping disabilities, Mills would have ended up with a permanent disability award of only about 10 percent.

DISCUSSION^[3]

I. Apportionment After Senate Bill No. 899

Apportionment is the process employed by the [WCAB] to segregate the residuals of an industrial injury from those attributable to other industrial injuries, or to nonindustrial factors, in order to fairly allocate the legal responsibility. (Marsh v. Workers Compensation Appeals Bd. (2005) 130 Cal.App.4th 906, 911 (Marsh), citing Fresno Unified School District v. Workers Comp. Appeals Bd. (Humphrey) 84 Cal.App.4th 1295, 1304.) Generally, an employer is held responsible in the workers compensation system only for the disability of an injured employee arising from the particular employment with that employer, but not for disability fairly attributable to periods of employment elsewhere or to nonindustrial conditions. (Ibid.)

At the time of Millss October 7, 2002, scaffold fall, three statutes primarily governed the law of apportionment. As this court explained in Humphrey, supra, 84 Cal.App.4th at p. 1305:

Two sections, 4750 and 4663, appl[ied] to antecedent injuries. Section 4750 relieve[d] an employer from the burden of compensating an injured worker for disability attributable to a preexisting permanent disability or physical impairment. Section 4663 [did] the same when an injured workers disability is partially attributable to a preexisting disease or condition. The third, section 4750.5, deal[t] with subsequent injuries.

On April 19, 2004, after Millss injury but well before the matter was submitted to the WCJ for a decision, the Legislature repealed sections 4663, 4750, and 4750.5 and enacted new sections 4663 and 4664. (Marsh, supra, 130 Cal.App.4th at p. 912, citing Stats. 2004, ch. 34,  33-35.) Instead of focusing on the level of resulting disability, which left an employer responsible for the full extent the industrial injury accelerated or aggravated a nondisabling preexisting disability, the new law requires that permanent disability apportionment shall be based on causation. ( 4663, subd. (a).) (Marsh, supra, 130 Cal.App.4th at p. 912.)

An employer is now only liable for the percentage of disability directly caused by the injury arising out of and occurring in the course of employment. ( 4664, subd. (a), emphasis added.) (Marsh, supra, 130 Cal.App.4th at p. 912.) Thus, a reporting physician must make an apportionment determination by finding what approximate percentage of 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. ( 4663, subd. (c).) We concluded in Marsh that the new apportionment provisions became effective immediately and must be applied to all pending cases not yet final at the time of the legislative enactment on April 19, 2004, regardless of the earlier dates of injury and any interim decision. (Marsh, supra, 130 Cal.App.4th at p. 910; see also Kleemann v. Workers Comp. Appeals Bd. (2005) 127 Cal.App.4th 274; Rio Linda Union School Dist. v. Workers Comp. Appeals Bd. (Scheftner) (2005) 131 Cal.App.4th 517.)

II. Humphrey Does Not Apply to Preexisting Injuries

Mills contends Senate Bill No. 899 did not repeal this courts decision in Humphrey, supra, allowing apportionment to a subsequent nonindustrial injury overlapping with an industrial injury. We are perplexed by Millss argument. Our decision in Humphrey examined and applied former section 4750.5, which before the enactment of Senate Bill No. 899 provided: An employee who has sustained a compensable injury and who subsequently sustains an unrelated noncompensable injury, shall not receive permanent disability for any permanent disability caused solely by the subsequent noncompensable injury. As the first line of the Humphrey opinion sets forth, however, the dispute in that case centered on section 4750.5s precise statutory language. (Humphrey, supra, 84 Cal.App.4th at p. 1298.) Mills fails to adequately explain to this court how our prior opinion, based on a statute and language no longer in existence, controls in assessing apportionment under the new statutory scheme. Moreover, as the WCJ explained in his report and recommendation which the WCAB adopted and incorporated, the facts of the Humphrey matter are not even factually similar to Millss claim. In addressing former section 4750.5, Humphrey examined a subsequent nonindustrial injury; here, Mills sustained a preexisting nonindustrial pulmonary condition. As the WCJ reasoned:

[T]he Humphrey case is factually distinct in that the applicant in that case suffered a non-industrial heart attack after the industrial orthopedic injury occurred. In this case, voluminous, contemporaneous medical records clearly establish that applicant had end-stage chronic obstructive pulmonary disease before the industrial orthopedic injury occurred. Based on this significant factual distinction alone, applicants contention that Humphrey applies to this case, must be rejected.

Mills appears to argue that because he was able to work before his admitted industrial injury, he did not suffer from any prior disability; therefore, the combined level of permanent disability he sustained from both the industrially admitted fall and his prior pulmonary condition should be entirely or largely attributable to his employment with Sunrise. We disagree. Elimination of such liability on the part of an employer for lighting up a nondisabling preexisting disability, condition, or physical impairment is the very change intended by the Legislature in revising the apportionment statutes. (Marsh, supra, 130 Cal.App.4th at p. 912.) Millss attempt to apportion disability, rather than causation, in direct contradiction to section 4663, subdivision (a), is unavailing.

III. Substantial Evidence

Mills further contends the WCABs decision adopting Dr. Bakers AME opinion lacks substantial evidence. When a party raises a factual dispute, we are limited to determining whether, in view of the entire record, substantial evidence reasonably supports the WCABs determination. (Braewood Convalescent Hospital v. Workers Comp. Appeals Bd. (1983) 34 Cal.3d 159, 164.) The WCAB may rely on the opinion of a single physician, even if contrary to other medical evidence, so long as the adopted opinion constitutes substantial evidence. (Place v. Workmens Comp. App. Bd. (1970) 3 Cal.3d 372, 378.) In addressing the concept of substantial medical evidence, the WCAB explained in its en banc decision, Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 620-621 (Escobedo):

[I]t is well established that any decision of the WCAB must be supported by substantial evidence. (Lab. Code, 5952(d); [citations].) [] In this regard, it has been long established that, in order to constitute substantial evidence, a medical opinion must be predicated on reasonable medical probability. [Citations.] Also, a medical opinion is not substantial evidence if it is based on facts no longer germane, on inadequate medical histories or examinations, on incorrect legal theories, or on surmise, speculation, conjecture, or guess. [Citations.] Further, a medical report is not substantial evidence unless it sets forth the reasoning behind the physicians opinion, not merely his or her conclusions. [Citations.]

The WCJ noted Dr. Baker issued three medical reports dated January 26, 2005, March 23, 2005, and March 1, 2006, and reviewed numerous additional medical reporting from Dr. Dhillon, Dr. Baum, and Dr. Nacouzi. According to the WCJ, Dr. Bakers medical reports and opinion are thorough, comprehensive, well reasoned and persuasive, which I find constitutes substantial medical evidence. In adopting Dr. Bakers AME opinion, the WCJ pointed to Dr. Bakers deposition testimony:

[I]f were looking at the whole person, and were talking in percentage terms, my answer to that would be that in all medical probability at least approximately 60 percent of Mr. Mills total incapacity relates to pulmonary disability and was caused by pulmonary disease, and the remainder of disability is caused by orthopedic injury.

The WCJ also expressed a lack of any good reason to reject the opinion of an AME, who was mutually selected by the parties because of his expertise and neutrality. (Powers v. Workers Comp. Appeals Bd. (1986) 179 Cal.App.3d 775.) Although Mills attacks Dr. Baker, as well as both Dr. Nacouzi and Dr. Dhillon, for purportedly failing to understand the law of apportionment, Mills does not specify with detail how Dr. Baker misunderstood or misapplied the law in reaching his medical conclusion that 40 percent of Millss total permanent disability was caused by his October 7, 2002, fall while working for Sunrise. Because this court may not reweigh the evidence ( 5953) and Mills does not convincingly demonstrate Dr. Bakers opinion is based on an incorrect legal conclusion or inadequate medical history, we must deny the petition for writ of review.

DISPOSITION

The petition for writ of review is denied. This opinion is final forthwith as to this court.

Publication courtesy of San Diego pro bono legal advice.

Analysis and review provided by Poway Property line attorney.

San Diego Case Information provided by www.fearnotlaw.com

^*Before Ardaiz, P.J., Wiseman, J., and Gomes, J.

^[1] Further statutory references are to the Labor Code unless otherwise stated.

^[2] Further reference to Sunrise includes its workers compensation insurer, Virginia Surety Company as administered by Applied Risk Services.

^[3] We reject Sunrises threshold claim the petition for writ of review must be dismissed solely because Millss petition for reconsideration -- filed with the WCAB -- was defective for failing to serve a copy on the employer, the employers attorney, and two lien claimants in violation of California Regulations, title 8, section 10850. Aside from Sunrises obvious failure to demonstrate that service should have been made separately to an employer and its counsel when its insurer accepted liability, or that either of the lien claims was ever contested warranting separate service of the petition under the terms of the regulation, Sunrise has waived the issue by not raising it before the WCAB. (American Psychometric Consultants, Inc. v. Workers Comp. Appeals Bd. (1995) 36 Cal.App.4th 1626, 1638.) Even if the issue were not waived, Sunrise does not demonstrate it was prejudiced in any way.