Agredano v. WCAB

Filed 4/12/07 Agredano v. WCAB 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Frank M. Brass, James C. Cuneo, and Janice Jamison Murray, Commissioners. J.A. Eckl, Workers Compensation Administrative Law Judge.

William S. Morris, for Petitioner.

No appearance by Respondent Workers Compensation Appeals Board.

No appearance by Respondent DeFrancesco & Sons, Inc.

Joel Benjamin Campbell, for Respondent California Insurance Guarantee Association.

-ooOoo-

Maria Agredano petitions this court for writ of review contending she was denied procedural due process because the Workers Compensation Appeals Board (WCAB) did not consider evidence of psychological injury in determining she was not entitled to continuing temporary disability for a hand injury. Agredano contends she was also denied due process, and the WCAB exceeded its authority under Labor Code^[1]section 5502, subdivision (b), because it determined her hand condition was permanent and stationary following an expedited hearing. Agredano further argues the WCABs order denying temporary disability was not based on substantial evidence. We will deny the petition.

BACKGROUND

Agredano worked as a sorter for DeFrancesco & Sons (DeFrancesco)^[2]when she injured her right hand and wrist in a large rotary-type machine on May 3, 1997. Pursuant to a stipulated agreement between the parties, a workers compensation administrative law judge (WCJ) awarded Agredano 46 percent permanent partial disability and future medical care on August 10, 1999.

On May 3, 2002, Agredano reopened her claim for new and further disability and claimed to be suffering from depression ensuing from the hand injury. ( 5410.) DeFrancesco resumed temporary disability payments through April 7, 2005, and continued to provide medical treatment.

Agredano underwent several surgical procedures to regain function of her right fingers. On May 20, 2002, Agredanos treating physician, Dr. Randi Galli, recommended arthroplasty of the right long finger. A month and a half later, however, Dr. Galli reported Agredano was not a surgical candidate due to anxiety and other psychological symptoms. By late 2004, Agredanos treating psychiatrist had not cleared her for further surgery. Accordingly, on November 13, 2004, Dr. Galli deemed Agredanos hand condition permanent and stationary unless she sufficiently recovered from depression and underwent additional surgery in the near future.^[3]

On July 7, 2006, Agredano filed a declaration of readiness to proceed with request for expedited hearing on the issues of temporary disability and medical treatment for both the hand and psyche. The WCJ ultimately decided Agredano was not entitled to temporary disability after April 7, 2005, and Agredanos hand condition became permanent and stationary on November 13, 2004, consistent with Dr. Gallis reporting. The WCJ added that Agredano remained entitled to further medical treatment for her hand pursuant to the stipulated award of August 10, 1999. The WCJ explained that three months of psychological counseling for the specific purpose of helping her make a decision on the surgery provided by DeFrancisco was as a reasonable amount of psychological treatment absent any medical opinion suggesting more psychological treatment was needed.

Agredano filed a timely petition for reconsideration, which the WCAB denied on October 27, 2006, by adopting the report and recommendation of the WCJ.

DISCUSSION

A. Standard of Review

The findings and conclusions of the appeals board on questions of fact are conclusive and final and are not subject to review. ( 5953.) Our review is limited to determining whether: (a) the WCAB acted without or in excess of its powers; (b) the WCABs order was procured by fraud; (c) the order was unreasonable; (d) the order was not supported by substantial evidence; and (e) the findings of fact support the WCABs order. ( 5952.)

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 WCABs 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 . (Braewood Convalescent Hospital, supra, at p. 164.)

B. Procedural Due Process

Agredano contends her right to procedural due process was violated because the WCAB determined she was not actively pursuing a claim of psychological injury and therefore did not consider evidence regarding the issue. We disagree, as Agredano fails to demonstrate she specifically requested the issue of psychological injury be set for hearing.

The essence of due process is simply notice and opportunity to be heard. (San Bernardino Community Hospital v. Workers Comp. Appeals Bd. (1999) 74 Cal.App.4th 936, 936.) Review of the pertinent procedural history in this case is necessary to determine whether the WCAB violated the Due Process Clause of the 14th Amendment. Agredano initiated the hearing process by filing a declaration of readiness to proceed to expedited hearing. (Cal. Code Regs., tit. 8,  10136.) She requested an expedited hearing on the issues of medical treatment and temporary disability and not a hearing to determine whether she sustained an industrial psychological injury.

After a July 31, 2006, mandatory settlement conference, which did not lead to settlement, the case was set for an expedited trial on August 21, 2006. ( 5502, subd. (b).) The parties completed a pretrial conference statement as required by section 5502, subdivision (e)(3).^[4] Although the need for psychological treatment was referenced in the mandatory settlement conference minutes, neither party asked the WCJ to consider whether Agredano sustained a psychological injury as an issue for trial. Agredano concedes in her petition before this court that she fashioned the issue to only address temporary disability due because of the need to provide medical care for the admitted orthopaedic injury. As Agredano advised the WCJ in a post-trial brief, any issue of whether Applicant sustained an industrial psychological injury was not being raised for the present hearing. Rather, the need to provide psychological treatment in order to cure or relieve from the effects of the orthopaedic [sic] injury is what is at issue. It therefore appears the parties selected continuing temporary disability and further medical treatment for the hand as the only issues to be litigated at the expedited hearing.

Consistent with the pretrial conference statement, the WCJ articulated the ensuing dispute as follows:

The issue is not whether [Agredano] is temporary totally disabled regarding her psychological state. The issue is whether or not she remains temporary totally disabled orthopedically while she is receiving counseling to help her make a decision regarding a recommended surgery.

In a report and recommendation to the WCAB, the WCJ added:

While [Agredano] has worked hard to characterize the issues differently,^[[5]] the issue is, how long did applicant remain temporarily totally disabled orthopedically while she sought counseling to help her decide to undergo a recommended surgery. This is not about psychiatric injury or treatment per se.

In support of Agredanos argument that the WCJ summarily adjudicated her psychological claim, she attacks the first sentence of the WCJs opinion on decision: [Agredano] is not pursuing [a] case for psychological injury although a Petition to Reopen alleging injury to the psyche has been filed. The context of that statement, however, was not for the purpose of taking away benefits for the psychological injury, but to narrow the holding to the issues actually litigated on August 21, 2006. In fact, the only findings made were: (1) Agredano is not entitled to additional temporary disability for her hand injury, and (2) she remains entitled to medical treatment for that injury.

Ironically, an evidentiary hearing surrounding the psychological injury may have violated DeFrancescos due process rights absent notice of an impending adjudication on that issue. Here, Agredanos due process rights were not violated because the expedited hearing, based on issues framed by both Agredano and DeFrancesco, was limited to the issues of temporary disability and medical treatment for the hand injury.

C. Jurisdiction under Section 5502, subdivision (b)

Agredano contends the WCAB exceeded its authority by determining her permanent and stationary status following the expedited hearing. Section 5502, subdivision (b) enumerates five issues proper for an expedited hearing and determination:

The court administrator shall establish a priority calendar for issues requiring an expedited hearing and decision. A hearing shall be held and a determination as to the rights of the parties shall be made and filed within 30 days after the declaration of readiness to proceed is filed if the issues in dispute are any of the following: [] (1) The employees entitlement to medical treatment pursuant to Section 4600. [] (2) The employees entitlement to, or the amount of, temporary disability indemnity payments. [] (3) The employees entitlement to vocational rehabilitation services, or the termination of an employers liability to provide these services to an employee. [] (4) The employees entitlement to compensation from one or more responsible employers when two or more employers dispute liability as among themselves. [] (5) Any other issues requiring an expedited hearing and determination as prescribed in rules and regulations of the administrative director.

Section 5502 does not identify issues regarding an employees permanent and stationary status as appropriate for an expedited hearing, but entitlement to temporary disability benefits is identified under subdivision (b)(2). However, the concepts of temporary disability and permanent and stationary status are not mutually exclusive:

Temporary disability indemnity serves as wage replacement during the injured workers healing period for the industrial injury . [] Thus, the obligation to pay [temporary disability] ends when the injured employee either returns to work [citations] or is deemed able to return to work [citation], or when the employees medical condition achieves permanent and stationary status [citations]. (Department of Rehabilitation v. Workers Comp. Appeals Bd. (2003) 30 Cal.4th 1281, 1291-1292, italics added.)

In deciding whether Agredano was entitled to ongoing temporary disability for her hand injury, the WCAB considered the November 13, 2004, report of her treating physician, Dr. Galli, to determine Agredanos permanent and stationary status. Dr. Galli deemed Agredano permanent and stationary as of the date of his report absent imminent surgery: If the patient is not a candidate in the near future for the surgery, based upon her ongoing depression, one may utilize this report essentially as an existing rating report for her hand condition as it exists at this time.

Agredanos argument that the WCJ should have considered additional evidence regarding her psychological injury ignores the parameters of the August 21, 2006, trial and its logical relevance to the hand injury. The WCAB did not exceed its authority under section 5502, subdivision (b).

D. Failure to Timely Set an Expedited Hearingand Render a Determination

Agredano asserts she was denied due process because the WCJ failed to set an expedited hearing and make a determination within 30 days of her declaration of readiness to proceed for an expedited hearing. As set forth above, section 5502, subdivision (b) provides for a priority hearing and determination for qualifying compensation issues, including entitlement to medical treatment and temporary disability, within 30 days of filing a declaration of readiness to proceed.

In the instant case, Agredano filed her request for an expedited hearing on July 10, 2006. The case was set for a mandatory settlement conference on July 31, 2006, to determine the appropriateness of setting an expedited hearing. At the conference, the WCJ ordered the case set for an expedited trial, which occurred on August 21, 2006, 42 days after Agredano filed her declaration of readiness to proceed. The WCJ issued a findings and order on September 18, 2006, 70 days after Agredano filed her declaration of readiness to proceed.

Although the expedited hearing did not occur within 30 days of the filing of the declaration of readiness to proceed, any administrative deviation from the 30-day standard did not result in a delay or deprivation of benefits. There is no indication that if the August 21, 2006, hearing occurred sooner, or if the September 18, 2006, findings and order issued earlier, Agredano would have been awarded additional temporary disability or psychiatric treatment for the hand injury. The WCJ primarily relied on the November 13, 2004, report of Dr. Galli in determining that Agredanos hand injury was permanent and stationary. The WCJ did not believe prolonged psychiatric treatment for the sole purpose of assisting Agredano to decide whether to proceed with the recommended arthroplasty constituted reasonable and necessary medical treatment. (  4600.) Agredano fails to demonstrate she was prejudiced or denied due process by any delay in setting the expedited hearing or issuing the findings and order.

E. Substantial Evidence and Dr. Gallis Report

Agredano contends the WCABs order is not based on substantial evidence because Dr. Galli did not thoroughly review and discuss her psychiatric history. Agredano again fails to recognize the subject of the WCABs order, which is the hand injury and not the psychiatric injury which was never litigated.

In finding Agredano permanent and stationary, the WCJ relied primarily on the November 13, 2004, report of Dr. Galli. Dr. Galli has been Agredanos treating physician for several years and performed her last surgery. Dr. Galli spent one and a half hours with Agredano the day he composed his report, and based on his examination, did not think her condition would change absent additional surgery.

As noted by the WCJ, Dr. Gallis opinion regarding Agredanos permanent and stationary status is consistent with the agreed medical examination report of Dr. James Lilla. Dr. Lilla reported on October 19, 2005, that Agredanos hand condition was permanent and stationary. Dr. Lilla also reported that further surgery was unlikely to improve Agredanos condition; in fact he opined the risks of further surgery exceed the potential benefits. Dr. Lilla wrote: The fact that she has been functioning with her hand as is over the last six or more years and has done as well as she has attests to a stable situation. Agredano has not presented evidence that her hand condition changed since November 13, 2004; she only offers that she may decide to pursue additional surgery.

Agredano argues Dr. Gallis report is inadmissible and cannot be relied upon under section 4628, but this contention is misplaced. Section 4628 places various foundational requirements for admissibility of a physicians report, including disclosure of the date and location where the evaluation was performed, as well as confirmation that the signing physician actually performed the examination. ( 4628, subd. (b).) The statute explains only the signing reporting physician may review and summarize prior medical reports or review excerpts or outlines prepared by others of the medical reports. ( 4628, subds. (a) and (c).)

Section 4628 does not support Agredanos contention that a physician in one specialty, such as hand surgery, would have to detail the patients treatment history with physicians in other specialties, like psychiatry. Nor would doing so be necessary in this case. Agredanos psychiatric status is relevant for evaluating whether she is a surgical candidate. It is not clinically significant for her treating hand surgeon to determine if her orthopedic condition reached a medical plateau.

Agredano attacks Dr. Gallis report for assuming she will not be having surgery in the near future. However, the trial was approaching two years since Dr. Gallis report and Agredano did not have the surgery. Substantial evidence supports the WCABs finding that Agredanos hand injury was permanent and stationary as of November 11, 2004.

F. Medical Treatment

Agredano contends DeFrancesco has not provided her reasonable and necessary treatment ( 4600), but does not articulate a reviewable issue in her petition for reconsideration or petition of writ of review concerning medical treatment. Furthermore, Agredano is not aggrieved from a final order concerning medical care, as the WCAB ordered further medical treatment, including hand surgery upon her request, pursuant to the August 10, 1999 award. ( 5900, 5950.)

DISPOSITION

The petition for writ of review, filed December 11, 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] Further statutory references are to the Labor Code.

^[2] Although DeFrancesco does not make an appearance before this court, the California Insurance Guarantee Association has accepted the matter as a covered claim. (Dennys Inc. v. Workers Comp. Appeals Bd. (2003) 104 Cal.App.4th 143, 1438-1439.)

^[3] An employees injury is considered permanent and stationary 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] Section 5502, subdivision (e)(3) provides in pertinent part: If the claim is not resolved at the mandatory settlement conference, the parties shall file a pretrial conference statement noting the specific issues in dispute .

^[5] Apparently Agredanos counsel has a history of viewing legal issues differently from the WCJ, the WCAB, and this court. As stated in the petition for writ of review: Petitioners counsel takes great pains at specifying the precise legal issues being presented, but believes that this section is ignored by this Court in that counsel has been frustrated in the past with decisions that not only ignore the issues presented, but instead addressed issues not only not presented, but not cogent to the controversy. Agredanos counsel continues by setting forth six verbose issues covering a full page over 28 lines of text. Like the WCJ and WCAB, we admittedly do not address the issues precisely as presented by Agredano. This and any courts powers are limited to addressing legal issues only, insofar as they are coherently articulated and relevant for adjudication.