Washington Mutual Bank v. WCAB (Helm)

Filed 7/27/07 Washington Mutual Bank v. WCAB (Helm) CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION ONE

Washington Mutual Bank (Washington Mutual) timely petitions for review (Lab. Code 5950 & 5952)^[1] of the order and opinion denying reconsideration of the Workers Compensation Appeals Board (Board) which affirmed an award to respondent, Judy Helm.^[2] There is no dispute that worker, Judy Helm, sustained compensable injury to her right wrist, right shoulder, neck and back, during the period February 29, 2000 to May 2, 2000. The sole issue is Washington Mutuals contention that the award was improperly calculated using the 1997 schedule for rating permanent disabilities, in effect prior to January 1, 2005. We conclude that the Board should have used the new schedule that went into effect on January 1, 2005.

As we have previously explained, [s]ection 4660 governs the calculation of permanent disability awards. As amended effective April 19, 2004, the section requires regular revisions in the rating schedule and, as relevant here, provides generally that 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 and after the effective date of the adoption of the schedule . . . . ( 4660, subd. (d).) But the section also provides that for compensable claims arising before January 1, 2005, the new schedule shall apply to the determination of permanent disabilities when there has been either no comprehensive medical-legal report or no report by a treating physician indicating the existence of permanent disability. [Citation.] (State Comp. Ins. Fund v. Workers Comp. Appeals Bd. (2007) 146 Cal.App.4th 1311, 1313, italics omitted (Echeverria).)

The Board read section 4660, subdivision (d) to allow application of the 1997 schedule where, as in Helms case, there existed a comprehensive medical-legal report, even if the latter did not discuss permanent disability. This interpretation was recently rejected by Division Four of this court in Costco Wholesale Corp. v. Workers Compensation Appeals Bd. (2007) 151 Cal.App.4th 148 (Chavez), which held that under section 4660, subdivision (d), a medical-legal report, like a treating physicians report, must contain an indication of permanent disability to trigger use of the pre-2005 rating schedule. (Chavez, supra, at p. 155.) Chavez explained that section 4660, subdivision (d) provides that the new rating schedule will apply to pre-2005 injuries unless one of three circumstances [has] occurred before 2005. One such circumstance is the preparation of a physicians report indicating the existence of permanent disability. Another . . . is the obligation of the employer to serve notice under section 4061, which advises the employee of the employers position regarding the entitlement to permanent disability at the time the last payment of temporary disability is made. These two circumstances are clearly tied to a determination of permanent disability before January 1, 2005. We can conceive of no rational basis for the Legislature to include a third circumstancethe comprehensive medical-legal report at issue hereunless it was tethered to a similar requirement. A pre-2005 medical-legal report written about issues other than permanent disability, or a report that considered the issue but found no permanent disability, would supply no logical basis for applying the earlier rating schedule. It makes little sense to construe the statute as Chavez suggests, and hold that any medical-legal report could suffice, when the syntax of the statute is amenable to a construction that requires those reports to contain an indication of permanent disability. (Chavez, supra, at p. 154.)

The last antecedent rule does not trump these considerations. One exception to that rule exists when   several words are followed by a clause which is applicable as much to the first and other words as to the last, [and] the natural construction of the language demands that the clause be read as applicable to all.   [Citation.] A second exception is made when  the sense of the entire act requires that a qualifying word or phrase apply to several preceding [words]. . . .  This is, of course, but another way of stating the fundamental rule that a court is to construe a statute  so as to effectuate the purpose of the law.   [Citation.] Our reading of section 4660 as a whole is to require that the implementation of the new permanent disability rating schedule be tied to an actual indication of permanent disability prior to the statutes effective date. It follows that the requirement of an indication of permanent disability would apply to medical-legal reports as well as to reports prepared by a treating physician. (Chavez, supra, 151 Cal.App.4th 148, 154.)

We agree with the reasoning of Chavez, and conclude that a medical-legal report must contain an indication of permanent disability in order to trigger the use of the 1997 rating schedule.

Our agreement with the decision in Chavez does not end our inquiry, however. Helm also argues that the record in this case contains a report of a treating physician indicating the existence of permanent disability prior to January 1, 2005, within the meaning of section 4660, subdivision (d), triggering use of the 1997 schedule.

The January 14, 2004 and April 6, 2004 reports of Dr. Mazur, Helms treating physician for her wrist injury, do make reference to permanent disability. In January, he noted that her permanent factors of disability remain unchanged. And in April, he stated that no further restrictions are required and that Helm remained permanent and stationary. He again commented that her permanent factors of disability remained unchanged. The Board relied on this report to apply the 1997 schedule to all of Helms injuries.

Washington Mutual contends (1) the Board erred when it relied on its finding that Helms wrist injury was permanent and stationary to trigger application of the 1997 schedule to all of her injuries; (2) Helm could not be permanently disabled while continuing to collect temporary disability; and (3) Dr. Mazurs reports are not substantial evidence of the existence of permanent disability. We agree with this latter argument and therefore need not and do not address the others.

  [O]ur function . . . is to consider the weight or persuasiveness of all of the evidence, as contrasted with that tending to support the [B]oards decision. . . . [Citation.] [Citation.] A medical opinion is not substantial evidence if it is based on an inadequate history, speculation or guess. (Echeverria, supra, 146 Cal.App.4th 1311, 1315; see also Place v. Workmens Comp. App. Bd. (1970) 3 Cal.3d 372, 378; Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604.)   [W]hen the Board relies upon the opinion of a particular physician in making its determination, it may not isolate a fragmentary portion of his report . . . and disregard other portions that contradict or nullify the portion relied on; it must give fair consideration to all of his findings. . . . [Citation.] [Citation.] And, to be substantial evidence, a medical report must indicate the reasoning behind the doctors opinion. (Echeverria, supra, at p. 1315.)

Dr. Mazurs report of January 14, 2004, was written while Helm was recovering from a December 2003 wrist surgery. His references to unchanged permanent factors of disability apparently refer to his several earlier reports dating back to December 15, 2000. Those reports discuss Helms ongoing wrist problems, potential work restrictions, her improvement and hesitation about surgery, followed, eventually, by her increased problems and a decision to have surgery, followed, again, by improvement. Similarly, Dr. Mazurs April 6, 2004 report makes reference to unspecified earlier reports that do not describe a permanent disability. None of his reports in fact demonstrate evidence of an indication of permanent disability.^[3] And he fails to support his bare conclusion that Helm remains permanent and stationary as previously stated with any reasoning. (Echeverria, supra, 146 Cal.App.4th 1311, 1315.)^[4] Moreover, the February 28, 2004 report of Agreed Medical Examiner, Dr. Fredric Newton, expressly notes, both with regard to her arm and her spine, this patient has not yet reached a permanent and stationary status.

Absent Dr. Mazurs reports and the existence of a medical-legal report indicating the existence of permanent disability, the workers compensation judge was required to utilize the new schedule to calculate Helms award.

Therefore, the portion of the decision and opinion after reconsideration applying the 1997 rating schedule to the calculation of permanent disability is annulled. The matter is remanded to the Board for further proceedings consistent with this opinion.

The parties shall bear their own costs.

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^[1] Further statutory references are to this code.

^[2] The Board adopted the report and recommendation on petition for reconsideration prepared by the workers compensation judge as its own opinion, and we will refer to it as the Boards opinion.

^[3] 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.)

^[4] For the first time in a supplemental brief addressing the applicability of Chavez to this case, Helm argues that the report of her spine physician, Dr. Eichbaum, also indicated permanent disability because of spinal fusion surgery. Dr. Eichbaums letter of August 20, 2003, to Dr. Mazur, however, describes Helms ongoing pain, further disc degeneration, recommendations for further treatment, and ongoing diagnostic procedures.