Dykes v. WCAB (E & J Gallo Winery)

Filed 11/4/08 Dykes v. WCAB (E & J Gallo Winery) 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Neil P. Sullivan, Commissioners. Alvin R. Webber, Workers Compensation Administrative Law Judge.

Law Offices of Gary C. Nelson and Gary C. Nelson, for Petitioner.

No appearance by Respondent Workers Compensation Appeals Board.

Harbinson, Tune & Kasselik and Thomas J. Harbinson, for Respondent E & J Gallo.

-ooOoo-

David Dykes petitions for a writ of review from a July 2, 2008, decision of the Workers Compensation Appeals Board (WCAB) lowering his permanent disability award by instructing the use of an apportionment formula more favorable to the employer after this court issued a contrary decision in the same matter in E & J Gallo Winery v. Workers Comp. Appeals Bd. (2005) 134 Cal.App.4th 1536 (Dykes). Pursuant to the request of Dykess employer, E & J Gallo Winery, the WCAB reopened Dykess award and applied a more recent Supreme Court decision in Brodie v. Workers Compensation Appeals Bd. (2007) 40 Cal.4th 1313 (Brodie), 28 months after the Supreme Court denied review of Dykes case. Perplexed by the WCABs actions, Dykes asks whether the WCAB exceeded its powers by reopening and reconsidering his award which already had been exhaustively litigated and affirmed through the appellate process. Under the circumstances, we must conclude the WCAB acted within its powers in reducing Dykess award.^[1]

BACKGROUND

We summarized the following facts in our prior opinion:

David Dykes injured his back while working as a winery worker for E & J Gallo Winery (Gallo) in September 1996. As a result of the injury, a workers compensation administrative law judge (WCJ) approved a stipulated agreement on March 26, 1999, to provide Dykes with future medical care and a 20.5 percent permanent disability award worth $11,680 in compensation. Dykes returned to work with Gallo with a lighter duty and a medical restriction of lifting up to 50 pounds. By January 2002, his condition improved and his work restrictions were lifted.

On October 28, 2002, Dykes again injured his back while working for Gallo. Following a November 2004 workers compensation hearing, a WCJ determined that Dykes was temporarily totally disabled between November 12, 2002 through March 25, 2004, when he became 73 percent permanently disabled. Adjusting for Dykess age and occupation, a 73 percent disability award translated to a weekly $230 payment over 453.50 weeks for a total sum of $104,305. From the award, the WCJ subtracted the $11,680 in compensation previously paid to settle Dykess 1996 back injury, as well as 12 percent in attorney fees. The WCJ also awarded Dykes future medical treatment as reasonably necessary to cure or relieve the injury. Gallo was permissibly self-insured for purposes of workers compensation at the time of both injuries. (See Lab. Code,^[[2]]  3700; Dennys Inc. v. Workers Comp. Appeals Bd. (2003) 104 Cal.App.4th 1433, 1439.)

Gallo timely petitioned the Workers Compensation Appeals Board (WCAB) for reconsideration, contending that the Labor Code mandated subtracting the percentage, not dollar amount, of the prior award from Dykes disability award. The WCJ advised the WCAB in a report and recommendation by repeating her original analysis without addressing the calculation issue. On January 5, 2005, WCAB Commissioners Frank M. Brass, William K. OBrien, and Janice Jamison Murray summarily denied reconsideration by adopting and incorporating the reasoning from the WCJs report. (Dykes, supra, 134 Cal.App.4th at p. 1541.)

This court granted Gallos petition for writ of review to consider the then-recent changes to the workers compensation apportionment provisions enacted by Senate Bill No. 899 (Sen. Bill 899), effective April 19, 2004, and its relationship to earlier Supreme Court precedent establishing that the appropriate method for calculating an apportioned award should favor the employer as required by the express and unequivocal language of section 4750. (Fuentes v. Workers Compensation Appeals Bd. (1976) 16 Cal.3d 1, 6 (Fuentes).) We concluded that in enacting the workers compensation revisions, the Legislature contemplated a variation in determining apportionment by repealing section 4750 and replacing it with different language in section 4664 for apportioning liability among multiple injuries. (Dykes, supra, 134 Cal.App.4th at p. 1550.)

Without former section 4750s mandate to consider an injury by itself and not in conjunction with or in relation to the previous disability or impairment and as though no prior disability or impairment had existed, and taking into account section 3202s directive to construe the workers compensation laws liberally for the purpose of extending their benefits for the protection of persons injured in the course of their employment, we concluded that where an employee sustains multiple industrial injuries while working for the same self-insure employer, apportionment under Sen. Bill 899 requires that an employer is liable for that portion of a workers overall disability, which exceeds his or her prior level of disability.^[3] (Dykes, supra, 134 Cal.App.4th at pp. 1552-1553.) We therefore held Dykes was entitled to the difference between a 20.5 percent disability and a 73 percent disability on the permanent disability table applicable for the subsequent injury. (Id. at p. 1554.) As the disability tables had not changed between Dykess two injuries and the math led to the same end result, we agreed that the WCAB appropriately subtracted the dollar amount of his original disability award from his subsequent award. Taking into account Dykess prior award, we concluded he was entitled to $104,350 in permanent disability indemnity paid over 453.50 weeks plus a $50.25 weekly pension for life thereafter. (Dykes, supra, at pp. 1552 fn. 7, 1554-1555.)

The Supreme Court denied Gallos petition for review on March 1, 2006. (S140645.) Two different divisions of the First District subsequently agreed with and expanded upon Dykes in Nabors v. Workers Comp. Appeals Bd. (2006) 140 Cal.App.4th 217 [review denied] and Brodie v. Workers Comp. Appeals Bd. (2007) 40 Cal.4th 1313 (Brodie). Meanwhile, the Third District reached a different result, concluding Sen. Bill 899 did not change the method of calculating apportionment.^[4]

On October 17, 2006, Gallo petitioned the WCAB to reopen Dykess permanent disability award for good cause. ( 5803.) Gallo asserted the Third Districts decision presented a change of law due to a conflict in interpretation of Labor Code Sections 4663 and 4664 between the Courts of Appeal. Gallo timely filed the petition within five years of second injury on October 28, 2002. ( 5804.)

On November 15, 2006, the Supreme Court granted review of the Third Districts decision and later consolidated it for review with Brodie. (S146979 & S147030.) On May 3, 2007, the Supreme Court filed its opinion disagreeing with the courts of appeal in Dykes, Nabors, and Brodie and concluded the Legislature did not intend to amend settled law and alter the status quo concerning the appropriate formula. (Brodie, supra, 40 Cal.4th at p. 1332.) The Supreme Court thus clarified that the Fuentes method of calculating apportionment remained applicable.

On November 30, 2007, a WCJ ruled Gallos petition to reopen was not valid because [t]he prior decision in this matter is res judicata as to this case. The fact that in another case a different result was arrived at regarding the same issue does not change that fact.

The WCAB subsequently granted Gallos petition for reconsideration. On July 2, 2008, the WCAB issued an opinion rescinding the WCJs findings, granting Gallos petition to reopen, and remanding the matter back to the WCJ with instructions to recalculate Dykess permanent disability award in a manner consistent with Brodie. The WCABs decision effectively reduces Dykess permanent disability award to $48,662.50 paid over 286.25 weeks without a continuing life pension. (Dykes, supra, 134 Cal.App.4th at p. 1551.)

DISCUSSION

Dykes contends the WCAB acted without or in excess of its powers by reopening and reconsidering his fully litigated permanent disability claim. As a constitutional court, the WCAB issues final decisions with res judicata effect as to both subsequent civil actions and workers compensation proceedings. (Azadigian v. Workers Comp. Appeals Bd. (1992)7 Cal.App.4th 372, 376 (Azadigian).) Res judicata prevents relitigating an issue after a fair trial and protects against vexing a party twice for the same controversy. (Id. at p. 380.) The principle of res judicata similarly applies to matters decided by this court. (Beckstead v. International Industries, Inc. (1982) 127 Cal.App.3d 927, 934.)

Unlike judicial determinations, however, the WCAB possesses continuing jurisdiction to revise its decisions if a petition to reopen is filed within five years from the date of injury. ( 5410, 5803, 5804; see 2 Hanna California Law of Employee Injuries and Workers Compensation (rev. 2d ed. 2002)  28.03[1], 31.02 -31.04.) Pursuant to section 5803,^[5]the WCAB maintains the power to rescind, alter, or amend any order, decision, or award. However, this power arises only upon a satisfactory showing of good cause. (Azadigian, supra, 7 Cal.App.4th at p. 379.) If sufficient evidence supports a finding of good cause, then the WCAB acted within its powers by reopening and reconsidering Dykess permanent disability award. (LeBoeuf v. Workers Comp. Appeals Bd. (1983) 34 Cal.3d 234, 240-241 (LeBoeuf); Azadigian, supra, 7 Cal.App.4th at p. 378.) As the Supreme Court has explained:

Under section 5803, the WCAB has continuing jurisdiction to reopen a case and, after notice and an opportunity to be heard, to rescind, alter or amend any award upon a showing of good cause. The cases construing this section have recognized that a variety of factors and circumstances may constitute the requisite good cause. For example, good cause may be established by newly discovered evidence which could not have been produced at the original hearing and which indicates a more extensive disability than that recognized by the original findings. [Citations.] Similarly, a subsequent clarification of the applicable law by a reviewingcourt which indicates that an employee was originally entitled to a different award than that given is good cause to reopen a case and amend an award. (LeBoeuf, supra, 34 Cal.3d at p. 241, fn. omitted.)

After this court affirmed Dykess permanent disability award as originally apportioned by the WCAB, the Supreme Court issued a subsequent decision in Brodie advising that Sen. Bill 899 did not change the former method of calculating apportionment set forth in Fuentes. Under LeBoeuf, the Brodie decision therefore presented a subsequent clarification of the applicable law by a reviewing court which indicates that an employee was originally entitled to a different award than that given, and constituted to good cause to reopen the prior award. (LeBoeuf, supra, 34 Cal.3d at p. 241.)

Dykes argues that more than a simple change in the law is required to trigger good cause to reopen a WCAB decision. He contends the mere fact of a subsequent, contrary court decision is not a dispositive basis for reopening final orders. Dykes believes the WCAB was instead required to find our prior decision presented exceptional circumstances of hardship and injustice. Dykes views his original award upheld by this court lacking any indication of injustice, oppression, or hardship, which is further indicated by the Supreme Courts denial of Gallos petition for review. As support for retaining the original award on equitable grounds, Dykes adds:

While subsequent analysis and development of legal doctrine did lead to a contrary result in Brodie , at the time this Court wrote its [sic] Opinion in this case, the new legislation of [Sen. Bill] 899 was by no means clear or settled. Most observers would comment that this Courts opinion in Dykes was reasonable and fair to all, given the logical inconsistencies and incoherent drafting of the new statutory scheme the [L]egislature cast into law. In fact, it was never really adequately explained in subsequent decisions why the legislative intent leads to a contrary result than that found in this case.

Dykess points to the Supreme Courts decision in Subsequent Injuries Fund of California v. Industrial Accident Commission 53 Cal.2d 392, 395 (Baldes),^[6]which noted:

It is true that the law of the case doctrine is a procedural rule which is generally followed, not because the court is without power to reconsider a former determination, but because the orderly processes of judicial procedure require an end to litigation. In the absence of exceptional circumstances of hardship and injustice the need for attributing finality to considered judicial determinations compels adherence to the previous decision. (Baldes, supra, 53 Cal.2d at p. 395, quoting Gore v. Bingham (1942) 20 Cal.2d 118, 122-123, emphasis added.)

Dykes contends there was no good cause to reopen the matter because Gallo never argued this courts earlier decision presented exceptional circumstances of hardship and injustice and no such finding was made by the WCAB. However, Dykes omits the very next lines of the above passage from Baldes, which refute his contention that more than a subsequent clarification of the law from a higher court was required:

But the [res judicata] rule should never be made the instrument of injustice. Thus, where the controlling rules of law have been altered or clarified in the interval between the first and second appeal and adherence to the previous decision would result in defeating a just cause, it has been held the court will not hesitate to reconsider its prior determination. (Baldes, supra, 52 Cal.2d at p. 395.)

Dykes also relies on Messner v. Industrial Accident Commission (1963) 216 Cal.App.2d 536, 540 (Messner) for the proposition that the WCAB may not exercise a general power to reopen a case after the award has been sustained by the District Court of Appeal and thereafter to reach a conclusion at variance with its original view and the law as stated by the District Court of Appeal . (Id. at p. 240.) This rule, however, omits the single most relevant factor in presenting good cause here, that is, where the Supreme Court subsequently clarified the law within the WCABs period of continuing jurisdiction after a party timely requested reconsideration within five years from the date of injury. Even Messner went on to explain that there is a recognized exception to the doctrine of the law of the case where, as here, there has been an intervening change or clarification in the law by the higher courts. (Id. at p. 541.)

Dykes lastly contends that permitting the WCAB to reopen a disability award based on a change in the law will cast doubt on all final WCAB awards and create a recipe for mass relitigation, particularly when future disability tables are revised. Dykes believes that the WCAB is setting a dangerous precedent in reopening disability awards based on changes in the law rather than changes in the level of disability. Dykes worries that whenever the Legislature or the Division of Workers Compensation amends the permanent disability rating schedule (PDRS),^[7]employees and employers will demand mindlessly reopening administrative claims every time the political wind changes direction.

Dykes speculates about what may or may not happen following future changes to the PDRS. Nevertheless, we note that the Legislature has already mandated that the Administrative Director of the Division of Workers Compensation amend the PDRS at least once every five years. ( 4660, subd. (c).) 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 or after the effective date of the adoption of the schedule, amendment or revision, as the fact may be. ( 4660, subd. (d).) Thus, the Legislature has already alleviated Dykess concern for the potential of mass relegation by declaring that any future amendments shall only apply to injuries occurring after the effective date of the PDRS. Subsequent revisions to the PDRS therefore would not appear to constitute good cause to reopen prior permanent disability awards.

In summary, the Supreme Courts decision in Brodie constituted good cause to reopen Dykess prior disability award, even after it had been affirmed by this court and denied review by the Supreme Court, because Gallo timely petitioned the WCAB within five years from the date of Dykess injury. Accordingly, we must deny Dykess petition for writ of review.

DISPOSITION

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

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^*Before Vartabedian, Acting P.J., Wiseman, J., and Gomes, J.

^[1] In Brodie, the Supreme Court did not specifically address the facts presented here, where the employee sustained separate injuries while working for the same self-insured employer. Nevertheless, we are bound by Brodie to apply it here. (Auto Equity Sales, Inc.v. Superior Court (1962) 57 Cal.2d 450, 455.)

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

^[3] Our holding was expressly limited to self-insured employers liable for both the prior and subsequent injuries. Given the facts before us, we express[ed] no opinion whether [this formula] should also be applied where an employee received a prior disability award with another employer, where the employer was separately insured at the time of the injuries, or where the medical evidence reveals that a portion of the injured employees disability is not compensable. (Dykes, supra, 134 Cal.App.4th at p. 1553.)

^[4] Although the Third Districts decision was originally published, California Rules of Court, rules 8.1100(d)(1) and 8.1115(a) prohibit citation to the decision.

^[5] Section 5803 provides: The appeals board has continuing jurisdiction over all its orders, decisions, and awards made and entered under the provisions of this division, and the decisions and orders of the rehabilitation unit established under Section 139.5. At any time, upon notice and after an opportunity to be heard is given to the parties in interest, the appeals board may rescind, alter, or amend any order, decision, or award, good cause appearing therefor. [] This power includes the right to review, grant or regrant, diminish, increase, or terminate, within the limits prescribed by this division, any compensation awarded, upon the grounds that the disability of the person in whose favor the award was made has either recurred, increased, diminished, or terminated.

^[6] The WCAB was formerly known as the Industrial Accident Commission. (Hustedt v. Workers Comp. Appeals Bd. (1981) 30 Cal.3d 329, 335, fn. 3.)

^[7] The PDRS constitutes prima facie evidence of the percentage of permanent disability to be attributed to each injury covered by the schedule. ( 4660, subd. (c).)