Sensient Technologies v. WCAB

Filed 12/30/08 Sensient Technologies v. WCAB 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. James C. Cuneo, Ronnie G. Caplane, and Frank M. Brass, Commissioners. Scott E. Crawford, Workers Compensation Administrative Law Judge.

Mullen & Filippi and John W. Barron, for Petitioners.

No appearance by Respondent Workers Compensation Appeals Board.

Law Office of Takako Mae Yoshida and Takako Mae Yoshida, for Respondent Noel D. Rivera.

-ooOoo-

Sensient Technologies Corporation (Sensient) petitions for a writ of review contending the Workers Compensation Appeals Board (WCAB) erred by applying the wrong permanent disability rating schedule, by awarding temporary disability during a period when the employee had retired, and by awarding reimbursement to the Employment Development Department (EDD). (Lab. Code,^[1] 5950, 5952; Cal. Rules of Court, rule 8.494.) We will deny the petition and remand the matter to the WCAB to award supplemental attorney fees. ( 5801.)

BACKGROUND

Noel Rivera filed two workers compensation claims while working as a laborer for Sensient in Stockton. In the first claim, Rivera alleged he incurred a specific injury on December 30, 2003, to his right shoulder, lumbar and cervical spine while lifting a 300 pound barrel of garlic. In the second claim, Rivera alleged he sustained a cumulative trauma injury to the same parts of the body through the period ending May 22, 2005, due to the stress and strain of employment. Sensient admitted injury in both claims as to Riveras right shoulder only.

Rivera brought his claims before a workers compensation administrative law judge (WCJ) in June 2008. Without objection, Riveras counsel made an offer of proof explaining that Rivera would testify that he retired because he could not do his work duties and not because he intended to take himself off the labor market and that he would have continued working but for his work injury. The parties then expressly agreed to submit this matter on the existing record without need for live testimony. According to Sensient, Rivera stopped working on July 25, 2005, at the age of 61.

On July 8, 2008, the WCJ concluded in both claims that Rivera injured his right shoulder, and not his lumbar or cervical spine, and that he was entitled to further medical care. The WCJ determined that under the 1997 permanent disability rating schedule (PDRS), Rivera was 19 percent permanently disabled as a result of the 2003 injury after taking into account the later injury and nonindustrial factors. As to the second injury claim under the 2005 PDRS, the WCJ found Rivera was five percent permanently disabled after taking into account the earlier injury and nonindustrial factors. In the second claim, the WCJ also awarded Rivera temporary disability payments from July 5, 2005, through December 27, 2005, and ordered reimbursement to the EDD for one week of benefits provided between March 7, 2006, and March 12, 2006.

Sensient timely petitioned the WCAB for reconsideration disputing the application of the 1997 PDRS as to the 2003 injury, attorney fees, temporary disability benefits, and the EDD lien. On September 8, 2008, the WCAB summarily denied the petition by adopting an August 8, 2008, report and recommendation prepared by the WCJ.

DISCUSSION

The findings and conclusions of the appeals board on questions of fact are conclusive and final and are not subject to review. ( 5953.) In reviewing an order, decision, or award of the WCAB, an appellate court must determine whether, in view of the entire record, substantial evidence supports the WCABs findings. ( 5952, subd. (d)); Braewood Convalescent Hospital v. Workers Comp. Appeals Bd. (1983) 34 Cal.3d 159, 164.) Substantial evidence is evidence that is more than a mere scintilla, and means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion .... (Braewood Convalescent Hospital, supra, at p. 164.) Presenting similar issues raised before the WCAB on reconsideration, Sensient contends the WCAB erred by rating Riveras December 30, 2003, specific injury under the 1997 PDRS instead of the 2005 PDRS and that insubstantial evidence supports either the award of temporary disability or reimbursement to the EDD in the second claim.

I. 1997 versus 2005 Permanent Disability Rating Schedule

Effective April 19, 2004, the Legislature adopted comprehensive reforms to the states workers compensation system as part of Senate Bill No. 899. The legislation was 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, Senate Bill No. 899 mandated the Administrative Director of the Division of Workers Compensation amend the PDRS effective January 1, 2005, and every five years thereafter. ( 4660, subds. (c) & (e); Stats. 2004, ch. 34,  32.) As directed, the Administrative Director adopted a new PDRS in 2005 incorporating guidelines published by the American Medical Association. ( 4660, subd. (b)(1); Cal. Code Regs., tit. 8,  9805.) In many cases, and as Sensient contends here, the use of the 2005 PDRS results in significantly reduced awards to injured workers when compared to similar disabilities rated under the 1997 PDRS. (See Zenith Insurance Co. v. Workers Comp. Appeals Bd. (2008) 159 Cal.App.4th 483, 493 & fn. 24 (Cugini); Genlyte Group, LLC v. Workers Comp. Appeals Bd. (2008) 158 Cal.App.4th 705, 715-716 (Zavala).)

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.

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. (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. (Costco Wholesale Corp., 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 (2006) 71 Cal.Comp.Cases 783 [writ den.].)

In the WCJs July 8, 2008, findings and opinion, the WCJ explained that because reports from the qualified medical examiner (QME) and treating physician addressed Riveras permanent disability status in 2004 regarding his 2003 injury, section 4660 authorized the use of the 1997 PDRS instead of the 2005 PDRS.The WCJ did not, however, refer to either physician by name or list a particular medical report by date.

On reconsideration before the WCAB, Sensient argued that the WCJ should not have relied upon the unidentified panel QME report to conclude the 2003 PDRS applied to Riveras 2004 injury. Sensient continued that, [f]or the sake of argument, defendant will assume that the WCJ was referring to Dr. [David F.] Ramoss report. Sensient then disputed that Dr. Ramoss opinion constituted substantial evidence.

In his report and recommendation to the WCAB, the WCJ responded that Sensient need not wonder which QME report the Workers[] Compensation Judge was referring to in his Opinion and Decision in this matter, as only one (1) QME report was offered into evidence in this matter, a QME report from Dr. Ramos dated November 30, 2004. The WCJ further explained that medical reporting from a treating physician addressed the existence of permanent disability and that a section 4061 notice should have been sent before January 1, 2005; thus, all three of the exceptions to section 4660, subdivision (d) were met and any one alone mandated the use of the 1997 PDRS.

Apparently not having read the WCJs report and recommendation adopted by the WCAB, Sensient repeats to this court that the WCAB relied upon an unidentified panel QME report to conclude the 1997 PDRS applied. Sensient again assumes the Judge was referring to the medical report of Dr. David Ramos, dated November 30, 2004, as well as a July 30, 2004, medical report from The Noble Group.^[2] While we agree The Noble Group medical report, which lists an x on the form preceding No Permanent Disability Anticipated, does not seem to support the existence of permanent disability, Sensient focuses on the following language from the QME report to suggest Dr. Ramoss opinion was not substantial evidence as it relates to permanent disability:

Because [Rivera] is not permanent and stationary, it probably would make sense for him to receive definitive treatment prior to even considering permanent and stationary status and factors of disability.

Dr. Ramos continued by describing Riveras subjective level of pain, which he rated between minimal and slight, and increased to slight and moderate upon repetitive reaching, overhead work, or lifting over 20 pounds. Dr. Ramos concluded that before the injury, Rivera did not have difficulty with any of these tasks, but now he has the pain involved, yet he can still do these activities but with pain.

Sensient argues that Dr. Ramos was unable to render an opinion as to permanent disability because Rivera was not yet permanent and stationary. Permanent and stationary status is the point when the employee has reached maximal medical improvement, meaning his or her condition is well stabilized, and unlikely to change substantially in the next year with or without medical treatment. (Cal. Code Regs., tit. 8, 9785, subd. (a)(8); see also Cal. Code Regs., tit. 8, 10152.) At least one appellate case has held that an employee must be permanent and stationary before a medical opinion could indicate an existence of permanent disability within the meaning of section 4660, subdivision (d). (Vera v. Workers Comp. Appeals Bd. (2007) 154 Cal.App.4th 996, 1006-1007.)

The greater weight of judicial authority and the line of cases to which we agree, however, hold that a pre-2005 medical determination of permanent and stationary status is not required to invoke the exceptions under section 4660, subdivision (d), to rate a disability under the 1997 PDRS. (Lewis v. Workers Comp. Appeals Bd. (2008) 168 Cal.App.4th 696, ___ [85 Cal.Rptr.3d 661, 664]; Zavala, supra, 158 Cal.App.4th at pp. 718-722; Cugini, supra, 159 Cal.App.4th at p. 496.) Here, although Dr. Ramos concluded he believed he could not consider Riveras factors of disability because he was not yet permanent and stationary, he also described, in ratable terms under the 1997 PDRS, Riveras subjective level of pain and concluded that his loss of pre-injury capacity would essentially be consistent with his subjective factors of disability. Sensient does not offer this court any authority to dispute the WCABs determination that Dr. Ramoss November 30, 2004, QME report sufficiently indicated the existence of permanent disability warranting the use of the 1997 PDRS.

II. Temporary Disability Benefits

A temporary disability is an impairment reasonably expected to be cured or materially improved with proper medical treatment. (Signature Fruit Co. v. Workers Comp. Appeals Bd. (2006) 142 Cal.App.4th 790, 795 (Signature Fruit).) An employer must pay temporary disability compensation for the period an injured employee, while unable to work, is undergoing medical diagnostic procedure and treatment for an industrial injury. ( 4600; Granado v. Workmens Comp. App. Bd. (1968) 69 Cal.2d 399, 403 (Granado).) The employers obligation to pay temporary disability generally ceases when either: 1) the injured employee returns to work, 2) the employee is deemed able to return to work, or 3) when the employees condition becomes permanent and stationary. (Department of Rehabilitation v. Workers Comp. Appeals Bd. (2003) 30 Cal.4th 1281, 1291-1292.) Unlike permanent disability, which compensates an injured employee for diminished future earning capacity or decreased ability to compete in the open labor market, temporary disability is intended as a substitute for lost wages during a period of transitory incapacity to work. (Granado, supra, at p. 403.) As this court has concluded, it would be illogical to award an employee temporary disability as a wage replacement where it is undisputed that there otherwise would not be a wage to replace. (Signature Fruit, supra at p. 802.)

Sensient reasserts its contention the evidence does not support Riveras award for temporary disability benefits between July 5, 2005, through December 27, 2005, in his second workers compensation claim because Rivera voluntarily retired and therefore there were no reimbursable lost wages. Sensient believes the WCJ must disregard Riveras self-serving offer of proof establishing that he retired because he could not do his work duties and not because he intended to take himself off the labor market and instead insists the WCAB should have relied upon the more credible medical history recorded by Stephen P. Abelow, M.D., in a June 30, 2007, agreed medical evaluation (AME) noting that To date there has been no loss of time off work and Mr. Rivera tells me that he retired in July 2005. Sensient further finds fault with WCABs reliance on Riveras offer of proof because he never testified, thereby making it impossible for the WCJ to have made a credibility determination as to the statement.

We find no merit in Sensients argument that an offer of proof formally admitted into the record without objection must be disregarded because it is self-serving, and Sensient does not offer this court any legal authority for its proposition that an offer of proof may not constitute substantial evidence to support a finding of fact. Even if the offer of proof was erroneously admitted, a finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless a timely objection to the evidence appears in the record. (Evid. Code,  353.) If Sensient was concerned about the veracity Riveras offer of proof, it could have objected, called him to testify, and cross-examined him to permit the WCJ to judge his credibility. Having elected not to do so, Sensient cannot claim prejudicial error. (Ibid.; see also Telles Transport, Inc. v. Workers Comp. Appeals Bd. (20012) 92 Cal.App.4th 1159, 1167.) Moreover, Dr. Abelows AME report does not mention whether the doctor inquired into Riveras reasons for retiring two years earlier. Dr. Abelows statement that Rivera did not miss any work because he retired does not necessarily refute the offer of proof that he retired because he could not do his work duties and not because he intended to take himself off the labor market.

III. Employment Development Department Reimbursement

Sensient lastly contends the evidence does not support the WCABs order to reimburse the EDD for a week of payments extended while Rivera was entitled to workers compensation temporary disability. As in the previous contention, Sensient again relies exclusively on Dr. Abelows AME report to suggest temporary disability should not have been awarded because Rivera voluntarily removed himself from the labor market by retiring. We are again unpersuaded by the argument.

DISPOSITION

The petition for writ of review is denied.

Under authority of Labor Code section 5801, we find no reasonable basis for the petition for writ of review filed by the employer and therefore remand the cause to the WCAB to issue a supplemental award of reasonable attorney fees to the attorney of Noel Rivera based on the services rendered in connection with answering the petition. (See Crown Appliance v. Workers Comp. Appeals Bd. (2004) 115 Cal.App.4th 620, 627, 628.)

This opinion is final forthwith.

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^*Before Wiseman, Acting P.J., Levy, J., and Kane, J.

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

^[2] Although the WCJ had not previously referred to The Noble Group report by name, it was the only treating physician medical report admitted into the record relating to the first injury claim.