Joiner v. WCAB

Filed 7/19/07 Joiner 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. William K. OBrien, Ronnie G. Caplane, and Frank M. Brass, Commissioners. Thomas W. Anthony, Jr., Workers Compensation Administrative Law Judge.

Frailing, Rockwell & Kelly and Jeffrey R. Duarte, for Petitioner.

No appearance by Respondent Workers Compensation Appeals Board.

Cuneo, Black, Ward & Missler and Bert G. Anderson, for Respondents Stuart Andersons Black Angus Restaurant and Federal Insurance.

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Cristina Joiner petitions for a writ of review (Lab. Code,^[1]  5950; Cal. Rules of Court, rule 8.494) contending the Workers Compensation Appeals Board (WCAB) improperly rated her permanent disability under the 2005 permanent disability rating schedule instead of the 1997 schedule in effect at the time of her injuries. Given the parties stipulation that none of the specific statutory exceptions applied that would have authorized the use of the former rating schedule, we agree with the WCAB that the workers compensation administrative law judge (WCJ) appropriately rated Joiners permanent disability under the revised standards. We therefore deny the petition.

BACKGROUND

Joiner worked as a payroll manager for American Restaurant Group operating Stuart Andersons Black Angus Restaurant (Restaurant). The Restaurant admitted Joiner sustained a July 10, 2002, work-related injury to her left shoulder, left wrist, and back and provided her with medical treatment and temporary disability payments.

The parties were unable to resolve Joiners workers compensation claim and participated in a mandatory settlement conference in November 2005. According to the pretrial conference statement, the parties disputed the applicability of the new permanent disability rating schedule versus the old rating schedule. At an April 20, 2006, hearing, the parties asked the WCJ to determine Joiners permanent and stationary date and her appropriate level of permanent disability.

In June 2006, the WCJ found Joiner became permanent and stationary on June 30, 2004, as recommended by orthopedic surgeon Mohinder Nijjar, M.D., in a May 27, 2005, qualified medical examination (QME) report. The WCJ rejected Joiners argument that her disability should be rated under the former rating schedule because [t]he parties stipulated that none of the exceptions discussed in the statute apply to the instant case. Adjusting for Joiners age and occupation, the WCJ concluded she was 16 percent permanently disabled, entitling her to $8,680 in compensation paid over 54.25 weeks. The WCJ also awarded Joiner further medical care and withheld $1,300 in attorney fees.

Joiner timely petitioned the WCAB for reconsideration contending the WCJ should have applied the 1997 rating schedule and misstated her level of weekly earnings. The WCJ prepared a Report and Recommendation to the WCAB recommending the petition be denied, but also requested the WCAB make several clerical corrections. The WCAB granted reconsideration to adopt the clerical corrections and otherwise affirmed the decision of the WCJ.

DISCUSSION

Joiner contends the WCAB erred by failing to apply the 1997 permanent disability rating schedule to her injury. She argues a literal interpretation of the relevant statutory provision, section 4660, subdivision (d), mandates the use of the 1997 rating schedule whenever an employee either sustains an industrial injury or becomes permanent and stationary between April 1, 1997, and December 31, 2004.^[2] Although the application of the various exceptions under section 4600, subdivision (d) is pending in numerous appellate cases,^[3] we need not conduct a comprehensive statutory interpretation investigation here because Joiner effectively stipulated that the 1997 rating schedule does not apply.

Section 4660 governs the calculation of permanent disability awards. (State Compensation Ins. Fund v. Workers Comp. Appeals Bd. (2007) 146 Cal.App.4th 1311, 1313 (Echeverria).) Adopted April 19, 2004, Senate Bill No. 899 mandates the Administrative Director of the Division of Workers Compensation amend the permanent disability rating schedule every five years beginning January 1, 2005. ( 4660, subds. (c), (e); Stats. 2004, ch. 34,  32.) The revisions must incorporate the descriptions and measurements of physical impairments and the corresponding percentages of impairments published in the American Medical Association (AMA) Guides to Evaluation of Permanent Impairment (5th Edition.). ( 4660, subds. (b); see also Costco Wholesale Corp. v. Workers Comp. Appeals Bd. (2007) 151 Cal.App.4th 148, 152 (Costco); Echeverria, supra, 146 Cal.App.4th at p. 1313.) Determining an injured workers appropriate level of permanent disability now takes into account the employees diminished future earnings capacity instead of the former standard considering the employees diminished ability to compete in the open labor market. ( 4660, subd. (a).)

Pursuant to section 4660, the Administrative Director adopted a new rating schedule effective January 1, 2005. (Cal. Code of Regs, tit. 8,  9805.) While Joiner does not demonstrate the practical difference between applying the 1997 rating schedule instead of the new 2005 schedule, we presume from her argument that the former schedule is more favorable to her than the revised schedule. (See Costco, supra, 151 Cal.App.4th at p. 155 [reforms were enacted as urgency legislation to drastically reduce the cost of workers compensation insurance].)

Before the enactment of Senate Bill No. 899, section 4660, subdivision (c) provided that the permanent disability rating schedule and any amendment thereto or revision thereof shall apply prospectively and shall apply to and govern only those permanent disabilities which result from compensable injuries received or occurring on and after the effective date of the adoption of such schedule, amendment or revision, as the fact may be. Senate Bill No. 899 incorporated former section 4660, subdivision (c) into a new subdivision (d), which now provides:

The schedule shall promote consistency, uniformity, and objectivity. 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, amendment or revision, as the fact may be. For compensable claims arising before January 1, 2005, the schedule as revised pursuant to changes made in legislation enacted during the 2003-04 Regular and Extraordinary Sessions 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, or when the employer is not required to provide the notice required by Section 4061 to the injured worker.

In Aldi v. Carr, McClellan, Ingersoll, Thompson & Horn (2006) 71 Cal.Comp.Cases 783 [en banc] (Aldi),^[4] the WCAB considered several potential interpretations of the new section 4660, subdivision (d) to determine whether to apply the 1997 or 2005 rating schedule. Reversing the WCJ, the WCAB unanimously held:

The revised permanent disability rating schedule mandated by Labor Code section 4660, and adopted by the Administrative Director effective January 1, 2005, is applicable to pending cases where the injury occurred before January 1, 2005, when there has been either no comprehensive medical-legal report or no report by a treating physician indicating the existence of permanent disability, or when the employer is not required to provide the notice required by section 4061 to the injured worker. (Aldi, supra, 71 Cal.Comp.Cases at p. 794.)

Quoting from Aldi, the WCAB recently reaffirmed its interpretation of section 4660, subdivision (d) in Pendergrass v. Duggan Plumbing (2007) 72 Cal.Comp.Cases 456, 461 [en banc] (Pendergrass):

[T]he revised permanent disability rating schedule, adopted by the Administrative Director of the Division of Workers Compensation effective January 1, 2005, applies to injuries occurring on or after that date, and that in cases of injury occurring prior to January 1, 2005, the revised permanent disability rating schedule applies, unless one of the exceptions delineated in the third sentence of section 4660(d) is present. (See also Baglione v. Herts Car Sales (2007) 72 Cal.Comp.Cases 444, 446 [en banc] (Baglione); Costa v. Hardy Diagnostics (2006) 71 Cal.Comp.Cases 1797, 1804 [en banc] (Costa).)

Joiner disputes the WCABs reasoning that the 2005 rating schedule applies to cases pending before 2005, claiming the second sentence of section 4660, subdivision (d) carried over from former subdivision (c) conflicts with the new third sentences of subdivision (d), and that the two phrases effectively negate each other. Joiner argues that when the entire provision is read in context and in harmony, the inescapable conclusion is that the new 2005 Permanent Disability Rating Schedule was intended only to apply to injuries which post-date January 1, 2005. Addressing the same statutory provision, however, the First Appellate District implicitly agreed with the WCAB and recently held:

While the statute is not a model of linguistic clarity, its intent is clear. The intent is to apply the rating schedule in effect on the date of injury to injuries suffered prior to 2005 in only three circumstances: (1) when a comprehensive medical-legal report issued prior to 2005 indicates permanent disability, (2) when a report from a treating physician issued prior to 2005 indicates permanent disability, and (3) when an employer has been required to give notice under section 4061 prior to 2005 concerning its intentions regarding payment of permanent disability benefits. This interpretation supports the legislative goal of bringing as many cases as possible under the new workers compensation law. (Costco, supra, 151 Cal.App.4th at p. 157, italics added.)

This week, another division of the First Appellate District ordered published its decision in Zenith Insurance Co. v. Workers Comp. Appeals Bd. (June 19, 2007, A116761) ___ Cal.App.4th ___ (Zenith), also disagreeing with the proposition that the second and third sentences of section 4660, subdivision (d) irreconcilably conflict:

This argument proceeds from a faulty premise, because there is no inconsistency between the provisions of section 4660, subdivision (d). The statute states the general rule that the applicable schedule is the one in effect on the date of the injury, and then provides an exception to that rule, namely, that the new schedule will apply to pre-2005 injuries unless one of three specified circumstances existed prior to 2005. There is nothing illogical or absurd about this interpretation of the statute, which adheres to its plain and commonsense meaning. [The employees] interpretation is strained by comparison. If, as he suggests, the Legislature had meant to target only those injuries arising during the period between the enactment of Senate Bill No. 899 on April 19, 2004, and the implementation of the new permanent disability rating schedule, it presumably would have done so explicitly rather than by making a blanket reference to claims arising before January 1, 2005. (Zenith, supra, slip opn. at p. 5.)

Notwithstanding Joiners request that we construe workers compensation laws liberally towards extending benefits to injured workers ( 3200), we concur with the en banc WCAB decisions in Aldi, Pendergrass, Baglione, and Costa, and the appellate court opinions in Costco and Zenith to the extent they harmonize the second and third sentences of section 4660, subdivision (d). The second sentence of section 4660, subdivision (d) establishes the general rule that the permanent disability rating schedule in effect on the date of injury generally governs an employees permanent disability rating determination; the third sentence of the subdivision, however, creates an exception for pre-2005 injuries in which the former rating schedule applies if any of the three enumerated conditions exist.

At the time of trial, Joiner conceded the conditions under section 4660, subdivision (d) were not met in her case. At the April 20, 2006, workers compensation hearing, the WCJ recorded in the Minutes of Hearing:

The parties stipulate that the following exceptions listed in Labor Code Section 4660(d) do not apply and there were no requirements for the employer to provide the notices. There was no report of the primary treating physician indicating the existence of permanent disability, and there was no comprehensive medical report, specifically that none of those occurred on or before 1/1/05.

Joiner additionally argues that notwithstanding the stipulation, Dr. Nijjars May 27, 2005, QME report retroactively concluding she was permanent and stationary in 2004 places her within the exceptions established under section 4660, subdivision (d) to apply the 1997 rating schedule. Even were we to disregard the stipulation, we agree with the First Appellate Districts conclusion that the pertinent exception applies when a comprehensive medical-legal report issued prior to 2005 indicates permanent disability. (Costco, supra, 151 Cal.App.4th at p. 157, italics added; see also Baglione, supra, 72 Cal.Comp.Cases at p. 446 [en banc] [We hold that for the 1997 Schedule to apply under section 4660(d), the existence of permanent disability must be indicated in either a pre-2005 comprehensive medical-legal report or a pre-2005 report from a treating physician].) In the present case, Dr. Nijjar did not prepare his report until after the 2005 permanent disability rating schedule went into effect in 2005. Moreover, as the WCJ here reasoned, there is no mention of the applicants permanent and stationary date being a determining factor in the existence of one of the exceptions.

Considering section 4660, subdivision (d), the parties stipulations, and the relevant facts, we conclude the WCAB appropriately relied upon the 2005 permanent disability rating schedule in determining Joiners level of permanent disability.

DISPOSITION

The Petition for Writ of Review is denied. This opinion is final forthwith as to this court.

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^*Before Wiseman, Acting P.J., Levy, J., and Cornell, J.

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

^[2] [T]he right to permanent disability compensation does not arise until the injured workers condition becomes permanent and stationary. (Department of Rehabilitation v. Workers Comp. Appeals Bd. (2003) 30 Cal.4th 1281, 1292, citing LeBoeuf v. Workers Comp. Appeals Bd. (1983) 34 Cal.3d 234, 238, fn. 2.) 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; Gee v. Workers Comp. Appeals Bd. (2002) 96 Cal.App.4th 1418, 1422, fn. 3.)

^[3] See e.g., Health Net v. Workers Comp. Appeals Bd. (A117434), writ granted June 27, 2007; City of Galt v. Workers Comp. Appeals Bd. (C055118), writ granted May 24, 2007; Travelers Indemnity Company of Illinois v. Workers Comp. Appeals Bd. (C055329), writ granted May 10, 2007; Zenith Insurance Co. v. Workers Comp. Appeals Bd. (A117149), writ granted May 4, 2007; Energetic Painting and Drywall v. Workers Comp. Appeals Bd. (C055273), writ granted May 3, 2007; San Francisco Marriott v. Workers Comp. Appeals Bd. (A117150), writ granted May 2, 2007; Tanimura & Antle v. Workers Comp. Appeals Bd. (H031049), writ granted May 2, 2007; HSR, Inc. v. Workers Comp. Appeals Bd. (H030998), writ granted April 23, 2007; Washington Mutual Bank v. Workers Comp. Appeals Bd. (A116702), writ granted April 4, 2007; Vera v. Workers Compensation Appeals Bd. (D049629), writ granted Jan. 22, 2007; City of San Diego v. Workers Comp. Appeals Bd. (D049878), writ granted Jan. 22, 2007; Chang v. Workers Comp. Appeals Bd. (C053854) writ granted Dec. 7, 2006.

^[4] An en banc WCAB decision binds all workers compensation judges in the same manner a published appellate decision does. [Citation.] The WCABs conclusions on questions of law are not binding on this court [citations], and the interpretation of a labor statute is a legal question, which we review independently from the determination of the appeals board. [Citations.] Nonetheless, we generally defer to the WCABs interpretation of labor statutes unless clearly erroneous. [Citations.] (City of Long Beach v. Workers Comp. Appeals Bd. (2005) 126 Cal.App.4th 298, 316, fn. 5.)