Paramount Farms v. WCAB

Filed 10/26/06 Paramount Farms v. WCAB CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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 from a decision of the Workers’ Compensation Appeals Board. William K. O’Brien, Ronnie G. Caplane, and James C. Cuneo, Commissioners. Robert K. Norton, Workers’ Compensation Administrative Law Judge.

Grancell, Lebovitz, Stander, Barnes and Reubens and Jennifer L. Oldham, for Petitioner.

No appearance by Respondent Workers’ Compensation Appeals Board.

No appearance by Respondent Maria Guadalupe Garcia de Velasquez.

-ooOoo-

Paramount Farms petitions for a writ of review (Lab. Code, § 5950; Cal. Rules of Court, rule 57) contending the Workers’ Compensation Appeals Board (WCAB) erred by increasing vocational rehabilitation maintenance allowance (VRMA) payments to an injured worker after finding Paramount Farms at fault for delaying vocational rehabilitation services. We will deny the petition.

BACKROUND

Maria Guadalupe Garcia de Velasquez (Velasquez) worked as a sorter for Paramount Farms in Lost Hills when she injured her neck, left shoulder, left arm, and left hand on June 1, 2001, and during the period from July 30, 2001, through September 20, 2001. Paramount Farms, through its workers’ compensation claims administrator, Broadspire, provided Velasquez temporary disability indemnity at the rate of $213.43 per week from January 23, 2002, through March 15, 2004. In September 2004, the parties adopted a stipulated award establishing Velasquez was 34 percent permanently disabled, warranting weekly permanent disability payments of $170 up to a total sum of $26,180, plus future medical care.

Paramount Farms agreed Velasquez was also entitled to vocational rehabilitation benefits and services and the parties selected Metropolitan Vocational Counselors (Metropolitan) to serve as her Qualified Rehabilitation Representative (QRR). Metropolitan completed an initial vocational evaluation (DWC Form RU-120) of Velasquez on August 4, 2003.

Velasquez elected to interrupt her vocational rehabilitation benefits and services as of September 11, 2003. In late July 2005, Velasquez advised she wished to continue vocational rehabilitation and Paramount Farms agreed to provide benefits as of July 22, 2005. Over the intervening two years Paramount Farms had “developed a problematic relationship with Metropolitan, the QRR, on multiple other cases.” According to Paramount Farms, “Upon request from the applicant to resume vocational rehabilitation by letter dated July 22, 2005 first received by Petitioner on August 3, 2005, Petitioner informed applicant and her attorney of the difficulties with Metropolitan and requested the parties agree to a different QRR to avoid having an Independent Vocational Evaluator (IVE) appointed.” Although Paramount Farms implies it immediately notified Velasquez of its difficulties with Metropolitan on August 3, 2005, defense counsel’s phone records submitted to the WCAB suggest that message was first communicated to Velasquez’s counsel on August 16, 2005. On August 23, 2005, a representative of Velasquez responded that there were not any bilingual vocational rehabilitation counselors in Bakersfield. Less than an hour later, Paramount Farms replied that at least two bilingual vocational counselors were in Velasquez’s area. No one from Velasquez’s attorney’s office returned the phone call.

Meanwhile on August 11, 2005, “after not having come to an informal agreement on a new QRR,” Paramount Farms filed a Request for Dispute Resolution (DWC Form RU-103) requesting the Rehabilitation Unit of the Division of Workers’ Compensation appoint an IVE. Following a September 21, 2005, Rehabilitation Unit hearing, the state rehabilitation consultant denied Paramount Farms’ request because there was no history of wrong doing by the QRR in Velasquez’s case. The rehabilitation consultant ruled the current QRR should be provided an opportunity to demonstrate his abilities and that appointing a new IVE would escalate costs. He also reasoned the delay in providing Velasquez rehabilitation services was not Paramount Farms’ fault because Velasquez’s attorney took exception to appointing an IVE and did not respond to Paramount Farms’ telephone request to change the QRR.

On November 23, 2005, after both parties appealed, a workers’ compensation administrative law judge (WCJ) annulled the Rehabilitation Unit’s determination. The WCJ ordered the Rehabilitation Unit “to promptly appoint an Independent Vocational Evaluator unless the parties are able to agree” because state regulations require that the Rehabilitation Unit “shall” appoint a QRR within 15 days of a request “whenever” a dispute arises. (Cal. Code Regs., tit. 8, § 10127.2 (Reg. § 100127.2.) The WCJ also concluded that the delay arose out of Paramount Farms’ “squabble with the previously-acceptable vendor” and therefore awarded Velasquez VRMA payments at the increased temporary disability “rate of $214.43 per week during the period from 7/22/05 to the present and continuing until the appointment of an Independent Vocational Evaluator.” The WCJ also noted that the increased delay-rate VRMA payments fell outside the normal $16,000 cap on vocational rehabilitation services. (Cal. Code Regs. tit. 8, § 10125.1, subd. (c) (Reg. § 10125.1(c).)

On December 16, 2005, Paramount Farms petitioned the WCAB for reconsideration, which the WCAB denied on January 20, 2006, by adopting and incorporating the WCJ’s January 3, 2006, Report and Recommendation. Paramount Farms petitioned this court for a writ of review on March 6, 2006.

DISCUSSION

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; Garza v. Workmen’s Comp. App. Bd. (1970) 3 Cal.3d 312, 317.) We are precluded from substituting our choice of the most convincing evidence or reweighing the evidence to decide disputed questions of fact. (§ 5953; Western Growers Ins. Co. v. Workers’ Comp. Appeals Bd. (1993) 16 Cal.App.4th 227, 233.) As with other provisions of the workers’ compensation laws, statutes regarding vocational rehabilitation must be construed liberally in favor of granting benefits to injured workers. (Webb v. Workers’ Comp. Appeals Bd. (1980) 28 Cal.3d 621, 626-627.)

An employer is required to provide vocational rehabilitation services to a qualified injured worker for injuries occurring before January 1, 2004.^[1] (See §§ 139.5, 4635 et seq.) A qualified injured worker is an employee unable to return to his or her former occupation and reasonably able to obtain gainful employment after being provided vocational rehabilitation services. (§ 4635, subd. (a).) “The purpose of vocational rehabilitation is ‘”to restore the worker to as near his or her previous income-producing status as can be reasonably and properly done.”’” (Gamble v. Workers’ Comp. Appeals Bd. (2006) 143 Cal.4th 71, __ [49 Cal.Rptr.3d 36, 40].) Vocational rehabilitation services include “vocational and medical evaluation, counseling, job analysis, job modification assistance, retraining, including on-the-job training or training for alternate employment, formal training, academic instruction, and job placement assistance.” (§ 4635, subd. (d).) While a qualified injured worker participates in vocational rehabilitation services, the employee receives temporary disability payments before becoming permanent and stationary; thereafter, the injured worker continues to receive VRMA payments to defray his or her living expenses. (§ 139.5, subd. (c); Webb v. Workers’ Comp. Appeals Bd., supra, 28 Cal.3d at p. 628.)

Reg. § 101251 requires the employer to make VRMA payments every 14 days. (Reg. § 101251, subd. (a).) If “the employee fails to reasonably cooperate with the provisions of vocational rehabilitation services subsequent to a request,” the employer may advise the employee it intends to withhold payments. (Reg. § 101251, subd. (b).) If, however, the employer or claims administrator causes a delay in VRMA payments, the amount is increased to the employee’s temporary disability rate and is not counted against the employee’s $16,000 maximum benefit or 52-week limitation. (Reg. § 101251, subd. (c).)

Paramount Farms contends the WCAB erred in determining the employer caused a delay in Velasquez’s VRMA, resulting in increased payments at the temporary disability rate and outside the normal $16,000 cap on vocational rehabilitation benefits. Shifting its contention in which it earlier, before the WCAB, blamed Velazquez’s attorney for not agreeing to accept a new QRR, Paramount Farms now blames the Rehabilitation Unit for not appointing an IVE within 15 days of Paramount Farms’ request as required by Reg. § 10127.2.^[2]

Paramount Farms overlooks the obvious. The parties previously agreed that Metropolitan would provide Velasquez with vocational rehabilitation services. After Velasquez requested to reinitiate vocational rehabilitation, Paramount Farms unilaterally chose not to reengage Metropolitan. Moreover, Paramount Farms’ reasons for refusing to work with Metropolitan had no correlation with Velasquez’s case; Paramount Farms admits in its Petition for Writ of Review that it sought a new vocational rehabilitation vendor because it “developed a problematic relationship with Metropolitan, the QRR, on multiple other cases.” (Emphasis added.) While Velasquez could have agreed to another QRR, she did not, and as the WCJ explained, Velasquez was under no legal obligation to do so after having previously agreed on Metropolitan. The WCAB’s determination the delay was caused by Paramount Farms’ own actions is well-supported by the record.

Paramount Farms also claims that “even if [it] caused the initial delay in the provision of vocational rehabilitation benefits in requesting an IVE, the chain of causation is broken when the Rehabilitation Unit’s inaction created a subsequent, independent and intervening event in that chain by failing to follow statutory mandate and further failing to comply with the [WCJ’s] Order.” In other words, Paramount Farms believes it should be relieved from the delay-rate VRMA because it was powerless to appoint an IVE without the Rehabilitation Unit, and the Rehabilitation Unit’s failure to act was an unforeseeable supervening cause. (Hoyem v. Manhattan Beach City Sch. Dist. (1978) 22 Cal.3d 508.) Paramount Farms alleges that as of the date of its Petition for Writ of Review, filed nearly 15 weeks from the WCJ’s initial findings and over six weeks after the WCAB’s Order Denying Reconsideration, the Rehabilitation Unit still had not appointed an IVE.

Notwithstanding Paramount Farms’ citation to events outside both the record and the ambit of appellate review, it again overlooks the obvious. On November 23, 2005, the WCJ issued his findings and ordered the Rehabilitation Unit to “promptly appoint an Independent Vocational Evaluator unless the parties are able to agree on reinstatement of the agreed QRR or selection of an agreed successor.” On December 16, 2005, Paramount Farms placed the validity of that order in question by filing a Petition for Reconsideration. After the WCAB denied reconsideration on January 20, 2006, Paramount Farms filed the present Petition for Writ of Review with this court. The WCJ’s order therefore was never final; as we explained in Marsh v. Workers’ Comp. Appeals Bd. (2005) 130 Cal.App.4th 906, 916, “a WCAB decision becomes final for purposes of res judicata when it constitutes the last word of the rendering court and the appellate courts have denied review.” The Rehabilitation Unit’s alleged failure to appoint an IVE for Velasquez is at least partially attributable to Paramount Farms’ actions disputing the WCJ’s decision. Moreover, there is no indication Paramount Farms ever filed a “request for action” petition with the WCAB to enforce the WCJ’s order. (Cal. Code of Regs., tit. 8, § 10450.) Were the issue properly before us, we would not agree with Paramount Farms that the Rehabilitation Unit’s failure to appoint an IVE was an unforeseeable supervening cause that should relieve Paramount Farms from increased VRMA benefits.

DISPOSITION

The Petition for Writ of Review, filed March 6, 2006, is denied. This opinion is final forthwith as to this court.

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

^[1] The Legislature has since eliminated the workers’ compensation vocational rehabilitation program. (See Stats. 2003, ch. 635 (Assem. Bill No. 227); Stats. 2004, ch. 334 (Sen. Bill No. 899).) The WCAB has held the repealed vocational rehabilitation statutes remain applicable to prior injuries. “[E]ven though these sections were repealed in 2003 and not reenacted in 2004, they still have a shadowy existence for injuries prior to January 1, 2004. Like ghosts ‘doomed for a certain term to walk to the night’ (Hamlet I, v), these statutes have no material existence but linger until their work is done.” (Godinez v. Buffets, Inc. (2004) 69 Cal.Comp.Cases 1311 [significant panel decision].) Further statutory references are to the Labor Code applicable at the time of Velasquez’s 2001 injuries.

^[2] Reg. § 10127.2 provides in relevant part:

“(a) The Rehabilitation Unit Headquarters shall maintain a list of Qualified Rehabilitation Representatives (QRR) who meet the requirements of an Independent Vocational Evaluator (IVE) .

“(b) The parties are encouraged to select a QRR whenever a dispute is raised regarding the assignment of a QRR. If the parties cannot agree on the selection of a QRR within fifteen (15) days, either party may request the Rehabilitation Unit to appoint an IVE. To request an IVE either party must file a Request for Dispute Resolution, DWC Form RU-103, with the correct Rehabilitation Unit district office.

“(c) Within fifteen (15) days of receipt of the request, the Rehabilitation Unit shall appoint an IVE with notice served simultaneously on the IVE and all parties.”