County of Stanislaus v. WCAB (Credille)

Filed 10/20/06 County of Stanislaus v. WCAB (Credille) CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT^*

ORIGINAL PROCEEDINGS; petition for writ of review. Ronnie G. Caplane, Frank M. Brass, and Janice Jamison Murray, Commissioners. Bertram Cohen, Workers’ Compensation Administrative Law Judge.

Cuneo, Black, Ward & Missler, and Chad E. Coleman, for Petitioner.

No appearance by Respondent Workers’ Compensation Appeals Board.

Frailing, Rockwell & Kelly, and Sharon E. Kelly, for Respondent Judy B. Credille.

-ooOoo-

The County of Stanislaus (County) petitions for a writ of review contending a decision of the Workers’ Compensation Appeals Board (WCAB) awarding Judy B. Credille (Credille) leg braces was unsupported by substantial evidence. (Lab. Code,^[1] § 5950; Cal. Rules of Court, rule 57.) We will deny the petition and remand the matter to the WCAB to award supplemental attorney fees. (§ 5801.)

BACKGROUND

Credille was diagnosed with polio in 1956 and began wearing leg braces at the age of four. She worked for the County as a social worker from 1976 through February 11, 1993, when she suffered a cumulative trauma injury to her back, lower extremities, and left shoulder.^[2] Credille attributed her leg symptoms to standing and walking while working for the County.

On March 31, 1997, a Workers’ Compensation Administrative Law Judge (WCJ) awarded Credille permanent partial disability of one percent, amounting to $420 in payment, after apportioning out the vast majority of her disability to her preexisting disease based on medical reporting from Dr. Bryan Barber. The award also required the County to provide Credille “further medical treatment as may be reasonably required to cure or relieve from the effects of said injury.”

The County provided periodic adjustments to Credille’s leg braces for nine years after the award was issued. In June 2005, Credille’s treating physician, Dr. Patrick Rhoades, recommended that her braces be refitted and replaced. The County disagreed based on medical reporting of Dr. James Stark.

After submitting the dispute to the WCAB, the WCJ concluded in March 2006 that Credille was entitled to leg braces on an industrial basis per the 1997 award for future medical treatment and based on the reporting of Drs. Rhoades and Barber. The County filed a petition for reconsideration, which the WCAB denied by adopting the report and recommendation of the WCJ.

DISCUSSION

A. Standard of Review

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 WCAB’s 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 .’ “ (Ibid.) The relevant and considered opinion of one physician, though inconsistent with other medical opinions, may constitute substantial evidence. (Place v. Workmen’s Comp. App. Bd. (1970) 3 Cal.3d 372, 378.)

An appellate court is precluded from substituting its choice of the most convincing evidence for that of the WCAB, and may not reweigh the evidence or decide disputed questions of fact. (§ 5953; Western Growers Ins. Co. v. Workers’ Comp. Appeals Bd., supra, 16 Cal.App.4th at p. 233.) If the WCAB’s findings “ ‘ “are supported by inferences which may fairly be drawn from evidence even though the evidence is susceptible of opposing inferences, the reviewing court will not disturb the award.” ‘ “ (Judson Steel Corp. v. Workers’ Comp. Appeals Bd. (1978) 22 Cal.3d 658, 664.)

B. Reasonably Required Medical Treatment under Section 4600

The County contends the reports of Drs. Rhoades and Barber are not substantial evidence that leg braces are reasonably required to cure or relieve the effects of Credille’s industrial injury, and that the WCAB should have relied on Dr. Stark’s reporting instead. We disagree.

“Apportionment is the process employed by the Board 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.” (Ashley v. Workers’ Comp. Appeals Bd. (1995) 37 Cal.App.4th 320, 326.) Unlike permanent disability, medical treatment cannot be apportioned to nonindustrial factors. (Granado v. Workmen’s Comp. App. Bd. (1968) 69 Cal.2d 399, 405-406.) “[T]he right of an injured employee to recover medical expense reasonably necessary to relieve from the effects of the injury is independent of the right to recover for disability and the issue of apportionment.” (Cedillo v. Workrmen’s Comp. App. Bd. (1971) 5 Cal.3d 450, 454.) Once it has been established that an industrial injury contributed to the need for medical treatment, section 4600 requires the employer to provide the treatment. (Rouseyrol v. Workers’ Comp. Appeals Bd. (1991) 234 Cal.App.3d 1476, 1485.) Medical treatment specifically includes “crutches, and apparatus, including orthotic and prosthetic devices and services, that is reasonably required to cure or relieve the injured worker from his or her injury.” (§ 4600, subd. (a).)

Dr. Rhoades documented in a June 6, 2005, report, that Credille suffered from post-polio syndrome with weakness in her lower extremities. He also reported that Credille showed him her leg braces made in 1999, and recommended that Credille proceed to a brace clinic for new braces as part of her treatment.

Dr. Rhoades added on June 30, 2005, that Credille saw a local certified orthotist, but based on the intricacy of the braces, they would be difficult to reconstruct locally. After exploring other options, Dr. Rhoades recommended that the new braces be made by Credille’s prior orthotist, who now works in Arizona.

Dr. Barber explained in a January 12, 2005, report that Credille’s increased knee pain was secondary to the natural progression of her industrial and nonindustrial conditions. While Dr. Barber was silent on the question of new leg braces, his report supports the conclusion that Credille continues to require treatment.

Dr. Stark reported on August 30, 2005, “The natural progression of the post-polio syndrome clearly is at a point that it is solely responsible for the need for treatment at this time .” He adds, Credille “will require replacements of orthotics and prosthetics over the years, again as a result of the non-industrial post-polio syndrome.” Dr. Stark opined Credille’s nonindustrial polio-related paralysis would continue to deteriorate regardless of work activities. Dr. Stark’s justification for terminating treatment, however, is insufficient to void the WCAB’s 1997 award. Employer provided treatment “cannot be avoided by apportioning the entire need for attendant care to nonindustrial causes on the theory that, despite industrial contribution to the need for attendant care, natural progression of a preexisting disease would have resulted in a need for the same level of care at the present time even if there had been no industrial injury.” (Rouseyrol v. Workers’ Comp. Appeals Bd., supra, 234 Cal.App.3d at p. 1485.) In Dr. Stark’s earlier May 23, 2005, report, he recognized that medical treatment was previously awarded and is nonapportionable, and therefore, “the need for future medical care related to Ms. Credille’s lower back and knees would have to be provided on an industrial basis.”

We conclude the medical evidence, combined with the 1997 award, “is more than a mere scintilla” to support the findings of the WCAB. (Braewood Convalescent Hospital v. Workers’ Comp. Appeals Bd., supra, 34 Cal.3d at p. 164.) The WCAB previously concluded that Credille’s employment with the County aggravated her preexisting polio-related disease, resulting in an award for medical treatment. As the WCJ advised in his report and recommendation, the WCAB lacked jurisdiction to address the prior award. Dr. Rhoades unequivocally recommended new braces. Dr. Barber agrees that Credille’s continuing problems with her lower extremities are partially industrial and that she continues to require treatment for her injury. Even Dr. Stark admitted treatment needed to be provided on an industrial basis based on the prior award. Accordingly, substantial evidence supports the WCAB’s determination.

C. Reasonable Basis for Petition for Writ of Review

Credille asks this court to award her attorney fees because the County’s Petition for Writ of Review lacks a reasonable basis. Section 5801 provides that if the employee “prevails in any petition by the employer for a writ of review from an award of the appeals board and the reviewing court finds that there is no reasonable basis for the petition, it shall remand the cause to the appeals board for the purpose of making a supplemental award awarding a reasonable attorney’s fee for services rendered in connection with the petition for writ of review.” (§ 5801, emphasis added.) “Attorneys’ fees are not, however, automatically awarded simply because an appellate court affirms the WCAB’s decision.” (Crown Appliance v. Workers’ Comp. Appeals Bd. (2004) 115 Cal.App.4th 620, 627.) An appellate court may conclude that a Petition for Writ of Review lacks a reasonable basis “ ‘when an employer contends that an award is not supported by substantial evidence and a review of the evidence shows that the award is supported by the competent opinion of one physician, although inconsistent with other medical opinions .’ “ (Ibid.)

The County did not present to this court a question of law and only argued that the WCAB’s decision was unsupported by substantial evidence in light of the entire record. The 1997 award and medical reporting from Drs. Rhoades and Barber support the WCAB’s determination that new braces are reasonably required to cure or relieve from the effects of her industrial injury. Moreover, the reasonableness of the 1997 award in which the County stipulated it would provide Credille with future related medical care is beyond the jurisdiction of this court. The County ignores the weight of the evidence in favor of the WCAB’s decision and instead asks this court to consider evidence deemed unpersuasive to the WCAB.

DISPOSITION

The Petition for Writ of Review is denied. Respondent Judy B. Credille’s request for attorney fees under section 5801 is granted. The matter is remanded to the WCAB to issue a supplemental award of attorney fees for the services rendered in connection with the petition for writ of review. This opinion is final forthwith as to this court.

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^* Before Harris, Acting P.J., Cornell, J., and Dawson, J.

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

^[2] “A cumulative injury is one which results from repetitive events, occurring during each days work, which in combination cause any disability or need for medical treatment.” (Western Growers Ins. Co. v. Workers’ Comp. Appeals Bd. (1993) 16 Cal.App.4th 227, 234.)