IMC Chemical v. WCAB (Smith)

Filed 5/10/07 IMC Chemical v. WCAB (Smith) 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Ronnie G. Caplane, William K. OBrien, and Frank M. Brass, Commissioners. George J. Perlingieri, Workers Compensation Administrative Law Judge.

Bill K. Gray, for Petitioners.

No appearance by Respondent Workers Compensation Appeals Board.

Richard L. Moser, for Steven L. Smith, Respondent.

-ooOoo-

IMC Chemical, Inc. (IMC) petitions for a writ of review (Lab. Code,^[1] 5950; Cal. Rules of Court, rule 8.494) contending the Workers Compensation Appeals Board (WCAB) violated its duty (a) to rely on medical evidence supported by substantial evidence, (b) to rely on expert testimony or opinion, and (c) to render an opinion based on substantial evidence and not speculation and surmise when it concluded respondent Steven L. Smiths alleged chemical-exposure injuries were industrially related. Although vigorously presented to this court as distinct issues, IMCs arguments simply assert substantial evidence which fails to support the WCABs finding that Smith sustained injuries arising out of and in the course of his employment with IMC. We will deny

the petition and remand the matter to the WCAB to award supplemental attorney fees.

( 5801.)

BACKGROUND

Smith worked as a material handler for IMC at its chemical plant in Trona, California. Working in a dusty environment wearing only leather gloves, a hard hat, safety glasses, and a paper mask, Smith believed he was constantly exposed to chemicals over 15 years while working for IMC.^[2] Smith first noticed intermittent dermatologic problems in 1994, which became quite severe by the time he resigned on May 28, 1998. Shortly thereafter, Smith treated with dermatologist Jane Kardashian, M.D., in Fresno, who removed various skin lesions and diagnosed him with skin cancer.

Smith filed an application for workers compensation benefits alleging skin cancer, lung cancer, and other internal injury to his entire body due to exposure to known carcinogens. IMC admitted Smith suffered from work-related atopic dermatitis, a relatively mild chronic skin disease, but denied his employment led to any additional injuries.

Smiths workers compensation claim proceeded to hearing on June 14, 2006, where he was the only witness to testify. Smith offered medical reporting from his primary treating physician, Daniel B. Brubaker, D.O., and toxicologist James G. Dahlgren, M.D. IMC submitted medical evidence from toxicologist Bruce S. Gillis, M.D., and internist and cardiologist Thomas E. Leonard, M.D. Earlier medical evidence prepared by Dr. Kardashian and consulting physician Robert J. Harrison, M.D., from the occupational medicine clinic at University of San Francisco Medical Center (UCSF) was also entered into the record.

After considering the factual and medical evidence, the workers compensation administrative law judge (WCJ) found the reporting of Drs. Brubaker and Dahlgren the most complete and persuasive and supported by Dr. Harrisons earlier opinion. Adopting their recommendations, the WCJ set forth the following findings, in relevant part:

6. As a consequence to exposure to PCBs, chlorinated pesticides, arsenic, other dioxin-like chemicals and other contaminants, applicant sustained injury to his skin, lungs, neurological and other bodily systems to an extent as yet undetermined and subject to further development of the record.

7. Applicant is now and has been totally temporarily disabled since June 9, 1998.

8. The record is unclear as to whether applicant is permanent and stationary with regards to his determatological condition as he continues to suffer additional episodes of skin lesions according to the stipulated treating physician. Jurisdiction reserved.

9. There is no indication in the record as to whether injury to applicants other at-risk bodily systems, whether the lungs, heart, neurological, etc. have reached a plateau of maximum medical improvement. Jurisdiction reserved.

10. There is no substantial evidence as to whether or to what extent applicant has suffered permanent disability. Jurisdiction reserved.

11. Applicant is in need for further medical treatment to cure or relieve from the effects of the industrial injuries.

IMC petitioned for reconsideration, asking the WCAB to conclude all of the WCJs findings, except for atopic dermatitis, be found to be nonindustrial since the applicant has not met his burden of proof, either factually or medically, by a preponderance of the evidence. On January 11, 2007, the WCAB summarily denied IMCs petition, adopting and incorporating the reasoning from the WCJs report and recommendation.

DISCUSSION

In an extensive attack on the merits of the WCABs decision, IMC contends the medical reports adopted by the WCAB and prepared by Drs. Brubaker and Dahlgren do not constitute substantial evidence because Dr. Brubaker is not credible in that he is not an expert in the field of internal or toxicological medicine and Dr. Dahlgrens medical opinion is pure speculation and surmise.

Section 5953 provides, in relevant part:

The findings and conclusions of the appeals board on questions of fact are conclusive and final and are not subject to review. Such questions of fact shall include ultimate facts and the findings and conclusions of the appeals board.

Appellate review on a factual question is therefore limited to whether the WCAB decision was unreasonable, not supported by substantial evidence, or whether the findings of fact support the order, decision, or award under review. ( 5952.) Moreover, an appellate court may not exercise its independent judgment on the evidence. (Ibid.) If the WCABs findings   are supported by inferences which may fairly be drawn from evidence even though the evidence is susceptible of opposing inferences, the reviewing court will not disturb the award. (Judson Steel Corp. v. Workers Comp. Appeals Bd. (1978) 22 Cal.3d, 658, 664.) In other words, in raising a factual dispute, we are limited to determining whether, in view of the entire record, substantial evidence reasonably supports the WCABs determination. (Braewood Convalescent Hospital v. Workers Comp. Appeals Bd. (1983) 34 Cal.3d 159, 164.)

It is well-settled that in issuing an award, the WCAB may rely on the medical opinion of a single physician, even if contrary to other medical evidence, if the adopted opinion constitutes substantial evidence. (Place v. Workmens Comp. App. Bd. (1970) 3 Cal.3d 372, 378.) Addressing the concept of substantial evidence of a medical opinion, the WCAB explained in its en banc decision, Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 620-621 (Escobedo):

[I]t is well established that any decision of the WCAB must be supported by substantial evidence. (Lab. Code, 5952(d); [citations].) [] In this regard, it has been long established that, in order to constitute substantial evidence, a medical opinion must be predicated on reasonable medical probability. [Citations.] Also, a medical opinion is not substantial evidence if it is based on facts no longer germane, on inadequate medical histories or examinations, on incorrect legal theories, or on surmise, speculation, conjecture, or guess. [Citations.] Further, a medical report is not substantial evidence unless it sets forth the reasoning behind the physicians opinion, not merely his or her conclusions. [Citations.]

IMC initially argues that by the WCJs own admission, the medical evidence in this case is wanting and therefore cannot amount to substantial evidence. In the introduction to the WCJs opinion attached to his initial findings, the WCJ explained:

Within the relatively confining parameters of a Workers Compensation hearing it is almost impossible to deal with a toxic exposure case in the same manner as might be accomplished in the civil arena.

Thus, testimony is presented in a written form rather than verbal, and each sides expert does not have the opportunity to assist in the cross-examination of the others on a line by line basis. Thus, the presentation of much of the underlying supporting data to the trier of fact is wanting in this forum; and what might take weeks or months in Superior Court is concluded in an administrative hearing in a matter of hours.

We are therefore limited to an evaluation of the medical reports in evidence, and we must overlook the ad hominem attacks by one physician against another (e.g. accusations of junk science as occurred in this case) in order to locate the most recent, complete, substantial and persuasive reports in the record. (Italics added.)

Reading the entire introduction, we disagree with IMCs characterization that the WCJ admittedly found the evidence wanting of substantial evidence; instead, the WCJ only indicated that all workers compensation proceedings are limited in scope in comparison to those of the superior court and do not permit the admittance of the type and amount of evidence available in a civil action. As the WCJ added, the goal in a workers compensation case is to locate the most recent, complete, substantial and persuasive reports in the record. At no point does the WCJ suggest such evidence is lacking here.

IMC continues by arguing that the credentials of its reporting physicians are of a higher caliber than Drs. Brubaker and Dalhgren, and therefore their opinions lack substantial evidence. IMC notes that Dr. Brubaker even admits he is not a toxicologist, although he directed a toxicology laboratory for three years, and that Dr. Dalhgren, while a toxicologist, is not a registered workers compensation qualified medical examiner. IMC does not offer this court any statutory provision or caselaw rendering a medical opinion invalid, or even of a lesser value, based exclusively on a licensed physicians particular credentials. Instead, as the WCAB explained in Escobedo, it is the quality of the medical reports that must be considered. Here, the WCJ found the opinions of Drs. Brubaker and Dalhgren the most complete and persuasive when viewed together: That is, Dr. Dahlgren completes the record with a full discussion and presentation of the scientific literature thus supporting the conclusions as summarized by Dr. Brubaker.

IMC recites several quotations from Dr. Dahlgrens numerous medical reports and points to approximately a dozen locations where the doctor uses the phrases such as probably, seems, likely, and most likely to suggest that Dr. Dahlgrens medical opinion is nothing more than speculation and surmise, failing to constitute substantial evidence. We find no merit to IMCs suggestion. [I]n evaluating the evidentiary value of medical evidence, a physicians report and testimony must be considered as a whole rather than in segregated parts; and, when so considered, the entire report and testimony must demonstrate the physicians opinion is based upon reasonable medical probability. (Bracken v. Workers Comp. Appeals Bd. (1989) 214 Cal.App.3d 246, 255.) Read in context and as a whole, Dr. Dahlgrens opinions are supported by a thorough review of Smiths medical history, medical evaluation, and medical testing supporting the doctors opinions with reasonable medical certainty.

IMC also attempts to argue it was fatal error for the WCAB to rely upon the opinions of Drs. Brubaker and Dahlgren because the WCJ did not use the term substantial evidence in describing their reports. IMCs contention is baseless, especially considering that IMC ignores the WCJs response to the same allegation raised on reconsideration and adopted by the WCAB:

Defendants aver that my use of the phrase compete and persuasive in referring to the medical-legal reports of Drs. Brubaker and Dahlgren, taken together, is somehow not complete enough because the word substantial evidence was not used. I will point to defendant[]s quote of the Supreme Court definition of substantial evidence as it appears on page 20 of defendant[]s petition and argue that complete and persuasive is the same as reasonable in nature, credible and of solid value. In effect, I was saying that these reports are substantial evidence even though the magic word was not used. I reiterate that opinion at this time.

Thus, even if the words substantial evidence were, as IMC alleges, required to support a WCAB determination, the WCAB here adopted the WCJs express clarification that the opinions of Drs. Brubaker and Dahlgren constituted substantial evidence.

IMC further argues that the record is void of a casual connection between Smiths employment and his injuries. Specifically, IMC contends that Smith never entered into the record a list of chemicals to which he may have been exposed. In finding a casual connection, the WCJ reasoned:

Another item which impressed this trier of fact was that at no time have defendants challenged or in any way presented rebuttal evidence to the very complete and exhaustive history of toxic substance exposure set forth in Dr. Dahlgrens report of April 21, 2005. That discussion not only describes in detail the kinds of protective clothing utilized by Mr. Smith (or rather lack thereof) but also associates the symptoms with the probable exposures. Nonetheless, to his credit, Dr. Dahlgren, a noted toxicologist, reserved his most complete and definitive analysis until January 9, 2006 after he had an opportunity to review all of the medical information as well as the PCB levels analysis performed at the AXYS Laboratory in Vancouver, B.C. And in his discussion he concludes that:

Mr. Smith has been poisoned by combination of chemicals. He was quite healthy when hired in 1979. He worked for approximately fifteen years in a heavily contaminated environment before his health suddenly and significantly deteriorated. He had elevated arsenic results. He has very high PCB and chlorinated pesticide blood levels. The PCBs act like dioxin. Chlorinated pesticides are potent neurotoxins. Both cause weight loss, mental confusion, immune impairment, and cancer. He has had a severe skin rash that is typical of this type of poisoning. He has developed skin cancers. He needs to be treated for his ongoing symptoms that reflect systemic toxicity from PCBs, arsenic, and the chlorinated pesticides. There is also evidence that he has had chronic low-level exposure to organic solvents as shown by the history and confirmed by the records I reviewed. 

Later, in his report and recommendation to the WCAB, the WCJ added that he also relied upon the medical reporting of UCSF physician Dr. Harrison, who as early as 2000 recorded Smith brought with him extensive records from the California Regional Water Quality Control Board, which documents contamination with formaldehyde, petrolinium hydrocarbons, phenols, and arsenic. The WCJ noted that even though IMC was put on notice that Smith had been presenting documents to his examining physicians evidencing his work-related exposure to chemical substances, IMC never asked Smith (or his wife, who found the documents) to produce them or to testify. We also note that IMC, who was in the best position to refute any claims of chemical exposure, never introduced evidence of what chemicals may or may not have been present at the Trona facility during Smiths employment. Under the doctrine of waiver, a party loses the right to appeal an issue caused by affirmative conduct or by failing to take the proper steps at trial to avoid or correct the error (Telles Transport, Inc. v. Workers Comp. Appeals Bd. (2001) 92 Cal.App.4th 1159, 1167.) IMC cannot now hide behind what appears to have been a purposeful trial tactic of ensuring such evidence was never introduced into evidence.

IMC fails to establish the WCAB relied on clearly erroneous or irrelevant medical evidence derived from inadequate medical history or examinations. Moreover, there is no indication the medical evidence relied upon by the WCAB was rooted in speculation and surmise rather than reasonable medical probability. Although IMC would like this court to reweigh the medical evidence in its favor, we will not play the role of medical expert by second-guessing the medical opinions relied upon by the WCAB. (Western Growers, Inc. v. Workers Comp. Appeals Bd. (1993) 16 Cal.App.4th 227.) Moreover, having presented a petition for writ of review contending that an award is not supported by substantial evidence and a review of the evidence shows that the award is supported by the competent opinion of one physician, although inconsistent with other medical opinions, IMC is liable for Smiths reasonable attorney fees under section 5801. (Employers Mut. Liab. Ins. Co. v. Workmens Comp. Appeals Bd. (1975) 46 Cal.App.3d 104, 108-109; see also Crown Appliance v. Workers Comp. Appeals Bd. (2004) 115 Cal.App.4th 620, 627-628.)

DISPOSITION

The petition for writ of review is denied and the matter is remanded to the WCAB to award supplemental attorneys fees for services rendered in connection with answering the petition. This opinion is final forthwith as to this court.

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^*Before Levy, Acting P.J., Gomes, J., and Hill, J.

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

^[2] IMC is permissibly self-insured, with respondent Constitution State Services serving as its third-party administrator.