Paramount Farms v. WCAB (Lopez)

Filed 10/5/06 Paramount Farms v. WCAB (Lopez) 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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. Merle C. Rabine, Frank M. Brass, and Ronnie G. Caplane, Commissioners. Joy L. Krikorian, Workers’ Compensation Administrative Law Judge.

Grancell, Lebovitz, Stander, Barnes and Reubens and David J. Chun, for Petitioner.

No appearance by Respondent Workers’ Compensation Appeals Board.

Law Office of Alex Berlin and Alex Berlin, for Respondent Martin Lopez.

Patrick Christoff, for Respondent Valley Interpreting Services

-ooOoo-

Paramount Farms petitions for a writ of review (Lab. Code, ^[1] § 5950; Cal. Rules of Court, rule 57) contending the Workers’ Compensation Appeals Board (WCAB) erred by (1) agreeing with one physician over another as to an injured employee’s permanent and stationary date, (2) holding the employee harmless from lien claims pursuant to a Compromise and Release, and (3) awarding excessive fees to an interpreter service. We conclude the WCAB did not sufficiently state the evidence relied upon and specify in detail its award for interpreter fees; we therefore remand the issue to the WCAB.

BACKGROUND

Martin Lopez suffered an admitted industrial injury to his right index and middle fingers while working as a machine operator for Paramount Farms in Lost Hills on September 21, 2002. At an August 30, 2004, workers’ compensation hearing, the parties entered into a Compromise and Release (C&R) settling the case-in-chief based on the medical reporting of Lopez’s primary treating physician at Accident Helpline, Mikel Meyer, D.O., and Paramount Farm’s qualified medical examiner, Lorenzo Walker, M.D. A workers’ compensation administrative law judge (WCJ) approved the C&R. The WCJ’s Minutes of Hearing described that the C&R provided Lopez compensation “in the amount of $6,658.19 with defendant holding the applicant harmless on the liens of Accident Help Line [sic], Valley Interpreting, and Employment Development Department.”^[2]

The C&R left unsettled the date Lopez became permanent and stationary and the amount or appropriateness of the lien claims. The original WCJ recused himself, stating he could not render a fair and impartial decision with regard to the interpreter’s lien because of his decision in another case.

Lopez testified at a February 9, 2005, disability hearing before a new WCJ. The owner of an interpreter service not a party in the present case testified on April 14, 2005, noting the prevailing rate in Fresno for interpreting services was $90 for both physical therapy and follow-up visits with a physician. The witness opined interpreting services for physical therapy sessions normally involved 15 to 20 visits, but he had never heard of an interpreter accompanying a patient 103 times for physical therapy or chiropractic sessions. The WCJ issued her Findings and Orders on September 30, 2005. Among other findings, the WCJ declared Lopez permanent and stationary as of June 20, 2003, pursuant to the opinion of Dr. Meyer. The WCJ reduced the liens of the Accident Helpline, Valley Interpreting Services, and Economic Development Department (EDD), and found them the responsibility of Paramount Farms pursuant to the C&R declaring Lopez harmless from the liens. The WCJ also sanctioned Valley Interpreting Services with attorney fees for an unsuccessful deposition attempt and $2,500 for failing to attend a hearing. (§ 5813.)

Paramount Farms timely petitioned the WCAB for reconsideration, disagreeing with the WCJ’s findings relating to Lopez’s permanent and stationary date and the liens involving Valley Interpreting Services and the EDD. The WCAB denied reconsideration, adopting and incorporating the reasoning of the WCJ’s Report and Recommendation.

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.) “The term ‘substantial evidence’ means evidence ‘which, if true, has probative force on the issues. It is more than a mere scintilla, and means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion .... It must be reasonable in nature, credible, and of solid value ....’ “ (Braewood Convalescent Hospital v. Workers’ Comp. Appeals Bd. (1983) 34 Cal.3d 159, 164.) 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.)

I. Permanent and Stationary Date

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, 1292; Signature Fruit Co. v. Workers’ Comp. Appeals Bd. (2006) 142 Cal.App.4th 790, __ [47 Cal.Rptr.3d 878, 886].) “A disability, other than one resulting from a progressive occupational disease, is permanent when the employee’s condition has reached maximum improvement or the condition has become stationary for a reasonable period of time.” (Western Growers Ins. Co. v. Workers’ Comp. Appeals Bd. (1993) 16 Cal.App.4th 227, 235; Cal. Code Regs., tit. 8, § 10152.) “Whether a condition has become permanent and stationary is purely a question of fact to be determined from the evidence.” (Robinson v. Workers’ Comp. Appeals Bd. (1987) 194 Cal.App.3d 784, 792.)

Paramount Farms correctly asserts that a “permanent and stationary date should be determined by substantial medical evidence and facts of the case.” (Emphasis omitted.) Paramount Farms notes the WCJ found Lopez permanent and stationary as of “June 20, 2003, based on Dr. Meyer’s opinion,” but argues “the reports of Dr. Walker and applicant’s own testimony support an earlier P&S date, December 31, 2002 .” Paramount Farms offers several grounds for siding with Dr. Walker’s opinion as “the most reasonable .”

As an appellate court, however, we may not select between conflicting medical reports. It is well-settled that “ ‘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.) A medical opinion nevertheless does not constitute substantial evidence if based on irrelevant facts or an incorrect legal theory, or on surmise, speculation, conjecture, or guess. (Ibid.) Here, there is no indication in the record that Dr. Meyer based his opinion as to a June 20, 2003, permanent and stationary date on anything other than an adequate review of Lopez’s medical history and examinations.

To the contrary, the WCJ explained in detail that the opinion of Dr. Walker, not Dr. Meyers, was suspect:

“After several months of treatment, Dr. Meyer found that the applicant’s condition became permanent and stationary on June 20, 2003.

“The applicant was first evaluated by Dr. Walker (on behalf of the defendant) on July 1, 2003 at which time the doctor specifically found the applicant’s condition was not permanent and stationary.

The doctor made various comments about the type of treatment that the applicant had received at Accident Help Line and further recommended that the applicant be seen by a hand specialist as well as undergoes [sic] diagnostic testing and manipulation.

“For reasons not disclosed at trial, these recommendations were not followed.”

“Dr. Walker (apparently in response to an inquiry by the defendant) authored a second report (dated January 15, 2004) wherein the doctor stated that the applicant could have been considered permanent and stationary as of [his] last visit with Dr. Lancy Allyn (who provided initial treatment to the applicant shortly after the injury).

“The applicant apparently underwent certain diagnostic testing but did not appear for a re-evaluation with Dr. Walker.

“Finally on February 13, 2004, Dr. Walker (again in response to an inquiry by the defendant) opines that the applicant’s condition actually stabilized as of December 31, 2002. The opinions set forth by Dr. Walker (in his final report) were developed without the benefit of having re-evaluated the applicant.

“It must be remembered that when Dr. Walker first saw the applicant on July 1, 2003 (after Dr. Meyer had concluded his treatment and declared the applicant to be permanent and stationary on June 20, 2003), the defense Qualified Medical Examiner opined that the applicant’s condition was not permanent and stationary. However, seven months later the doctor finds that the applicant’s condition was actually permanent and stationary as of December 31, 2002. Again, it must be remembered that this opinion was rendered without the benefit of having actually examined the applicant.

“Assuming arguendo that this could be considered an acceptable method of assessing the applicant’s condition, [Dr. Walker] fails to state why he has changed his opinion regarding the applicant’s status. The only additional information which had been provided to Dr. Walker was an electrodiagnotic test which showed that the applicant was not experiencing carpel tunnel symptoms.

“In his final report, while providing the parties with a substantial number of conclusions, the doctor fails to provide any analysis as to why he has now changed his opinion and decided that the applicant’s condition has stabilized and that the July 2003 examination findings are sufficient to establish a level of permanent disability. In short, the doctor fails to explain his rather significant change of opinon.

“Based upon the fact that Dr. Walker did not actually examine the applicant before providing his opinion regarding a retroactive permanent and stationary date and combined with the doctor’s failure to provide any analysis regarding the same, I did not find that his medical reporting constituted substantial medical evidence and therefore I relied upon the opinions of Dr. Meyer with respect to the assessment of the permanent and stationary date.”

We agree with the WCJ and find no reason to disturb the WCAB’s determination adopting the permanent and stationary date of June 20, 2003, per Lopez’s treating physician.

II. EDD Lien

Paramount Farms disputes the WCAB determination that it must reimburse the EDD for amounts overpaid to Lopez, claiming a “more equitable remedy would be to order EDD to take credit for the amount it overpaid .” Acknowledging the WCJ ordered the payment because of the C&R provision holding Lopez harmless from the liens, Paramount Farms nevertheless finds the result unfair because the original WCJ “ordered” the employer to insert the provision in the C&R.

We find no indication in the record of any “order” on the part of the WCJ forcing Paramount Farms to release Lopez from any liability against the EDD. Indeed, Paramount Farms only refers to “the prevalent practice at many District Offices of the WCAB.” However, even if the WCJ conditioned its approval of the C&R on such provision, we assume Paramount Farms was not obligated to settle the workers’ compensation claim and adopt the C&R. Apparently, Paramount Farms would have this court set aside the written agreement so it could achieve what it now perceives as a fair and equitable result. We decline the invitation to unravel the C&R.

III. Valley Interpreting Services Lien

Valley Interpreting Services filed a lien claim in the amount of $12,084.33 based on itemized billings for interpreting services rendered in conjunction with medical and physical therapy appointments at the Accident Helpline from October 31, 2002, through September 5, 2003. As with the EDD lien, Paramount Farms agreed to hold Lopez harmless as to Valley Interpreting Services. Without calculating a specific amount payable, the WCJ cited California Code of Regulations, title 8, section 9795.3 (WCAB Rule 9795.3) and ordered Paramount Farms to reimburse Valley Interpreting Service at the rate of $90 per session and limited payment to only those charges incurred on or after November 19, 2002 -- the date when the claims administrator had been properly notified.

Valley Interpreting Services’ lien claim and the itemized billing was not included with the Petition for Writ of Review, but according to Paramount Farms, “trial exhibits show they are seeking payment for 103 interpreting sessions from October 31, 2002 to August 16, 2004.” Paramount Farms finds the number of interpreting sessions excessive, claiming Accident Helpline only submitted supporting medical evidence of six treatment visits. Paramount Farms also disputes the fees on the grounds it never authorized, and even formally objected to, the interpreting services. Paramount Farms also alleges “Valley Interpreting stationed an interpreter at the offices of Accident Helpline, providing interpreting services to multiple injured workers and then demanded payment from Petitioner after-the-fact.”

In her Report and Recommendation to the WCAB, the WCJ recited that Paramount Farms claimed “the lien of Valley Interpreting Services must rise or fall upon the reasonableness and necessity of the medical treatment which was provided to Mr. Lopez through Accident Help Line [sic].” The WCJ added, however, that Paramount Farms’s Petition for Reconsideration did not challenge the findings relating to compensability of Accident Helpline’s lien claim. Based on her observations of Lopez at trial, the WCJ found credible Lopez’s testimony that he required the services of an interpreter.

WCAB Rule 9795.3, entitled “Fee for Interpreter Services,” provides:

“(a) Fees for services performed by a qualified interpreter, where the employee does not proficiently speak or understand the English language, shall be paid by the claims administrator for any of the following events:

“(1) An examination by a physician to which an injured employee submits at the request of the claims administrator, the administrative director, or the appeals board;

“(2) A comprehensive medical-legal evaluation as defined in subdivision (c) of Section 9793, a follow-up medical-legal evaluation as defined in subdivision (f) of Section 9793, or a supplemental medical-legal evaluation as defined in subdivision (k) of Section 9793; provided, however, that payment for interpreter’s fees by the claims administrator shall not be required under this paragraph unless the medical report to which the services apply is compensable in accordance with Article 5.6. Nothing in this paragraph, however, shall be construed to relieve the party who retains an interpreter from liability to pay the interpreter’s fees in the event the claims administrator is not liable. “(3) A deposition of an injured employee or any person claiming benefits as a dependent of an injured employee, at the request of the claims administrator, including the following related events:

(i) Preparation of the deponent immediately prior to the deposition,

(ii) Reading of a deposition to a deponent prior to signing, and,

(iii) Reading of prior volumes to a deponent in preparation for continuation of a deposition. “(4) An appeals board hearing, arbitration, or formal rehabilitation conference. “(5) An informal rehabilitation conference. “(6) A conference held by an information and assistance officer pursuant to Chapter 2.5 (commencing with Section 5450) of Part 4 of Division 4 of the Labor Code to assist in resolving a dispute between an injured employee and a claims administrator. “(7) Other similar settings determined by the Workers’ Compensation Appeals Board to be reasonable and necessary to determine the validity and extent of injury to an employee.”

While not clear, the WCAB appears to have found interpreting services performed at Accident Helpline reimbursable under WCAB Rule 9795.3, subd. (a)(2). Pursuant to the cross-referenced regulation in that subdivision, a “comprehensive medical-legal evaluation,” a “follow-up medical-legal evaluation,” or a “supplemental medical-legal evaluation” must result in a “narrative medical report prepared and attested to” by the examining physician. (Cal. Code. Regs, tit. 8, § 9793, subds. (c), (f), & (l).) However, according to Paramount Farms, no narrative medical reports were prepared in the vast majority of Lopez’s visits with Accident Helpline. Apparently, the WCAB nevertheless considered Lopez’s repeated physical therapy appointments with Accident Helpline follow-up medical-legal evaluations eligible for reimbursable translation services.

Based on our preliminary review of WCAB Rule 9795.3, we agree with Paramount Farms that if Accident Helpline did not produce narrative medical reports for Lopez’s visits, then Paramount Farms was not required to pay for interpreting services at those visits which it did not authorize. From the WCAB opinion adopting the WCJ’s Report and Recommendation, however, this court is unable to determine which of the claimed 103 interpreting services and on what grounds the WCJ ordered Paramount Farms to reimburse Valley Interpreting Services. Accordingly, we conclude the WCAB opinion does not sufficiently “state the evidence relied upon and specify in detail the reasons for the decision” as mandated by section 5908.5.^[3] “The purpose of this section requiring the appeals board to specify in detail the reasons for its decision is to assist the reviewing court to ascertain principles relied upon by the lower tribunal to help avoid careless or arbitrary action and to make the right of appeal more meaningful.” (Burbank Studios v. Workers’ Comp. Appeals Bd. (1982) 134 Cal.App.3d 929, 936.) The WCAB’s failure to set forth its reasoning in adequate detail constitutes a sufficient basis to annul the decision and remand for a statement of reasons. (Le Vesque v. Worker’s Comp. App. Bd. (1970) 1 Cal.3d 627; Painter v. Worker’s Comp’ App. Bd. (1985) 166 Cal.App.3d 264, 268; City of Fresno v. Worker’s Comp App. Bd. (1985) 163 Cal.App.3d 467, 470.) Because the deficiency of the WCAB’s reasoning is apparent from the face of its decision, certification of the record and further briefing would add nothing to the presentation already submitted. (See Goodenough v. Superior Court (1971) 18 Cal.App.3d 692, 697.)

DISPOSITION

Let a writ of review issue returnable before this court forthwith.

The WCAB’s November 28, 2005, Order Denying Reconsideration is annulled only as to the compensability of the Valley Interpreting Services’ lien. The matter is remanded to the WCAB to conduct any further proceedings as it deems appropriate, including granting reconsideration and taking additional evidence or briefing, to enable the WCAB to state the evidence relied upon and specify in detail the interpreting fees that are reimbursable to Valley Interpreting Services under WCAB Rule 9795.3 or other legal authority.

As to the remaining issues, the WCAB’s November 28, 2005, Order Denying Reconsideration is affirmed.

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

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

^[2] Paramount Farms did not provide this court with a copy of the C&R with the Petition for Writ of Review.

^[3] Section 5908.5 provides: “Any decision of the appeals board granting or denying a petition for reconsideration or affirming, rescinding, altering, or amending the original findings, order, decision, or award following reconsideration shall be made by the appeals board and not by a workers’ compensation judge and shall be in writing, signed by a majority of the appeals board members assigned thereto, and shall state the evidence relied upon and specify in detail the reasons for the decision.

The requirements of this section shall in no way be construed so as to broaden the scope of judicial review as provided for in Article 2 (commencing with Section 5950) of this chapter.”