Gunzenhauser v. WCAB (State of California)

Filed 8/17/07 Gunzenhauser v. WCAB (State of California) 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Janice Jamison Murray, Commissioners. Alvin R. Webber, Workers Compensation Administrative Law Judge.

Moorad, Clark & Stewart, for Petitioner.

No appearance by Respondent Workers Compensation Appeals Board.

Robert W. Daneri, Suzanne Ah-Tye and David M. Goi, for Respondents Benjamin Hudelson, Wendy Hudelson and State Compensation Insurance Fund.

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An injured worker petitions for a writ of review (Lab. Code,^[1] 5950; Cal. Rules of Court, rule 8.494) contending the 104-week statutory maximum entitlement to temporary disability indemnity payments enacted as part of the 2004 workers compensation reforms is unconstitutional because he did not become permanent and stationary within two years. We conclude the reduction of potential temporary disability benefits is within the Legislatures constitutional authority to prescribe a complete system of workers compensation and deny the petition.

BACKGROUND

On September 30, 2004, 70-year-old equipment operator Donald Gunzenhauser was dragged 60 feet by farm equipment while working for respondents Benjamin and Wendy Hudelson. The parties stipulated the incident caused injury to Gunzenhausers left collar bone and reserved the possibility that it also caused him to sustain a punctured lung and right knee injury.

The Hudelsons workers compensation insurer, State Compensation Insurance Fund (SCIF), provided Gunzenhauser temporary disability indemnity for 104 weeks pursuant to section 4656, subdivision (c)(1), but Gunzenhauser did not recover or become permanent and stationary within that time.^[2] Still temporarily totally disabled in January 2007, Gunzenhauser requested an expedited hearing and asked the workers compensation administrative law judge (WCJ) if the maximum two-year temporary disability indemnity period under section 4656 was unlawful or unconstitutional, or if his circumstances otherwise mandated an exception.

The WCJ quickly concluded Labor Code section 4656, subdivision (c)(1) clearly sets forth the 104-week maximum exposure/entitlement to temporary disability, and while applicants situation is unfortunate, the law states what it says, and at the trial level WCJs are not empowered to remedy alleged inequities in the law.

Gunzenhauser petitioned the Workers Compensation Appeals Board (WCAB) for reconsideration. The WCJ responded by reporting to the WCAB that Gunzenhausers petition may have merit and that reconsideration should be considered. In an opinion and order denying the petition, the WCAB agreed with the WCJs finding that section 4656, subdivision (c)(1) limits temporary disability indemnity payments to 104 weeks and added that under California Constitution, article III, section 3.5, even the WCAB is constrained from declaring a statute unenforceable or unconstitutional absent such a determination by an appellate court.

DISCUSSION

Gunzenhauser asks this court to declare section 4656, subdivision (c)(1) unconstitutional. As the parties agree on the relevant facts, Gunzenhauser presents a pure question of law reviewable by this court de novo. (Signature Fruit Co. v. Workers Compensation Appeals Bd. (2006) 142 Cal.App.4th 790, 795 (Signature Fruit), citing Department of Rehabilitation v. Workers Comp. Appeals Bd. (2003) 30 Cal.4th 1281, 1290 (Lauher).) In considering a constitutional challenge to a statute, we are guided by a general presumption of validity and uphold the provision unless it plainly and unmistakably conflicts with the California Constitution. (Hess Collection Winery v. California Agricultural Labor Relations Bd. (2006) 140 Cal.App.4th 1584, 1595-1596.) Moreover, while section 3202 requires the courts to construe temporary disability statutes liberally in favor of granting benefits to injured workers, even a liberal interpretation will not extend temporary disability benefits where they are not authorized. (Signature Fruit., supra, at p. 795, citing Lauher, supra, at p. 1293.)

A temporary disability is an impairment reasonably expected to be cured or materially improved with proper medical treatment. (Signature Fruit, supra, 142 Cal.App.4th at p. 795.) Unlike permanent disability, which compensates an injured employee for diminished future earnings 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. (Ibid.) Subject to certain minimum and maximum amounts, temporary disability payments for most injured employees is calculated at two-thirds of the injured employees average weekly earnings. (Ibid.;  4453, 4653, 4654.)

Enacted as part of a comprehensive series of workers compensation reforms contained in Senate Bill No. 899 (Stats. 2004, ch. 34) effective April 19, 2004, section 4656, subdivision (c)(1) provides:

Aggregate disability payments for a single injury occurring on or after the effective date of this subdivision, causing temporary disability, shall not extend for more than 104 compensable weeks within a period of two years from the date of commencement of temporary disability payment.

Also enacted by Senate Bill No. 899, section 4656, subdivision (c)(2) permits temporary disability payments for up to 240 weeks within a five-year period from the date of injury for certain enumerated injuries or conditions.^[3] Before Senate Bill No. 899 and currently under section 4656, subdivision (b) for injuries occurring before April 19, 2004, temporary disability payments were limited to 240 weeks within a five-year period only in the cases of temporary partial disability; the 240-week limit did not apply total temporary disability. (1 Hanna, Cal. Law of Employee Injuries and Workers Compensation (rev. 2d ed. 2007)  7.02[2], citing Southern California Presbyterian Homes v. Workers Comp. Appeals Bd. (1987) 52 Cal.Comp.Cases 64 [writ den.].) Current law retains the former 240-week cap on all temporary disability payments for dates of injury prior to January 1, 1979. ( 4656, subd. (a).)

Gunzenhauser contends that by limiting temporary disability indemnity payments to two years for his serious injuries, the Legislature violated the constitutional mandate to enact a complete system of workers compensation with adequate provisions for the comfort, health and safety and general welfare of any and all workers so as to accomplish substantial justice. (Cal. Const., art. XIV,  4.^[4]) He believes section 4656, subdivision (c)(1) fails to provide full provision for adequate insurance coverage against liability to pay or furnish compensation. (Ibid.) Gunzenhauser argues the limited temporary disability benefit effectively guarantees that workers will become public charges and that the responsibility of the employer will be transferred to become the responsibility of the state.

The crux of Grunzenhausers contention is that the reduction in the number of weeks of potential temporary disability payments diminishes an employees compensation benefits below that minimally contemplated under the state Constitution. Unlike Gunzenhauser, however, we do not find a constitutional requirement to provide temporary disability payments for any specific period of time. Indeed, Gunzenhauser does not point to any constitutional provision mandating that the Legislature enact a workers compensation system utilizing temporary disability indemnity payments at all. To the contrary, the Constitution provides that, The Legislature is hereby expressly vested with plenary power, unlimited by any provision of this Constitution, to create, and enforce a complete system of workers compensation . (Cal. Const., art. XIV,  4.) This plenary grant of authority permits the Legislature enact, amend, and delete statutory workers compensations benefit provisions as it deems appropriate. (See Rio Linda Schools v. Workers Comp. Appeals Bd. (2005) 131 Cal.App.4th 517, 527; Graczyk v. Workers Comp. Appeals Bd. (1986) 184 Cal.App.3d 997, 1002-1003.)

Under the current statutory scheme, the Legislature has authorized temporary disability payments for up to either 104 weeks or 240 weeks, depending on the type of injury. ( 4656, subd. (c).) As SCIF points out, an injured employee who remains temporarily disabled thereafter is not guaranteed to become a public charge because he or she then may receive advance payment of future permanent disability indemnity until the employers reasonable estimate (or actual determination) of permanent disability is paid. ( 4650, subd. (b).) And if the WCAB finds an injured worker at least 70 percent permanently disabled, the employee may further receive a life pension after permanent disability payments end. ( 4659.) Gunzenhauser fails to persuade this court that reducing the period of time an employee may recover temporary disability indemnity benefits plainly and unmistakably conflicts with the constitutional requirement to enact a complete system of workers compensation providing adequate provisions for the comfort, health and safety and general welfare of any and all workers . (Cal. Const., art. XIV,  4.) Accordingly, [w]e will not second guess the Legislatures objective and design. (Marsh v. Workers Comp. Appeals Bd. (2005) 130 Cal.App.4th 906, 917.)

DISPOSITION

The Petition for Writ of Review, filed May 29, 2007, is denied. This opinion is final forthwith as to this court.

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

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

^[2] An injured employee is generally entitled to temporary disability indemnity payments until the employee returns to work, is deemed able to return to work, or becomes permanent and stationary. (Department of Rehabilitation v. Workers Comp. Appeals Bd. (2003) 30 Cal.4th 1281, 1291-1292; Signature Fruit Co. v. Workers Comp. Appeals Bd. (2006) 142 Cal.App.4th 790, 902.) A disability is considered permanent 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, 10152.)

^[3] Temporary disability payments may extend up to 240 weeks for the following injuries or conditions: hepatitis B and C, amputations, severe burns, HIV, high-velocity eye injuries, chemical burns to the eyes, pulmonary fibrosis, and chronic lung disease. ( 4656, subd. (c)(2).) The parties agree Gunzenhauser does not suffer from any of the enumerated injuries or conditions that would have extended the number of temporary disability payments.

^[4] The first paragraph of the California Constitution, article XIV,   4, provides:

The Legislature is hereby expressly vested with plenary power, unlimited by any provision of this Constitution, to create, and enforce a complete system of workers compensation, by appropriate legislation, and in that behalf to create and enforce a liability on the part of any or all persons to compensate any or all of their workers for injury or disability, and their dependents for death incurred or sustained by the said workers in the course of their employment, irrespective of the fault of any party. A complete system of workers compensation includes adequate provisions for the comfort, health and safety and general welfare of any and all workers and those dependent upon them for support to the extent of relieving from the consequences of any injury or death incurred or sustained by workers in the course of their employment, irrespective of the fault of any party; also full provision for securing safety in places of employment; full provision for such medical, surgical, hospital and other remedial treatment as is requisite to cure and relieve from the effects of such injury; full provision for adequate insurance coverage against liability to pay or furnish compensation; full provision for regulating such insurance coverage in all its aspects, including the establishment and management of a State compensation insurance fund; full provision for otherwise securing the payment of compensation; and full provision for vesting power, authority and jurisdiction in an administrative body with all the requisite governmental functions to determine any dispute or matter arising under such legislation, to the end that the administration of such legislation shall accomplish substantial justice in all cases expeditiously, inexpensively, and without incumbrance of any character; all of which matters are expressly declared to be the social public policy of this State, binding upon all departments of the State government.