Sutton v. WCAB (Schwartz & Lindheim)

Filed 9/21/07 Sutton v. WCAB (Schwartz & Lindheim) 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Alfonso J. Moresi, Commissioners. Robert McEvilly, Workers Compensation Administrative Law Judge.

William S. Morris, for Petitioner.

No appearance by Respondent Workers Compensation Appeals Board.

Elizabeth Ramona Valenzuela, for Respondents Schwartz & Lindheim, Inc. and One Beacon Insurance Company.

-ooOoo-

Petitioner William R. Sutton asks this court to annul a decision of the Workers Compensation Appeals Board (WCAB) in which the WCAB remanded the matter for further development of the medical record to determine whether Sutton is entitled to medical treatment arising out of a 1985 stipulated award providing that future medical care may be required. To the extent the WCABs opinion is a final decision, we agree with the WCAB that it must acknowledge the current medical guidelines as set forth in Labor Code section 4600 in considering the reasonableness of Suttons request for medical treatment.^[1]

DISCUSSION

On May 9, 1985, Sutton entered into a Stipulations with Request for Award with his employer Schwartz & Lindheim, Inc. (Employer) agreeing that he sustained a June 20, 1983, work-related injury to his back, elbow, right hip, and right shoulder causing 19 percent permanent disability. The form language of the stipulated agreement added at paragraph 4: There is/is not/may be need for medical treatment to cure or relieve from the effects of said injury with the words may be circled. Directly underneath was handwritten: for the back and hip and right shoulder only, and upon reasonable demand. A workers compensation administrative law judge (WCJ) approved the agreement and expressly awarded [f]urther medical treatment in accordance with Paragraph 4 above, provided, however demand first be made upon the Carrier.

At some point thereafter, the Employer contested its liability to provide medical treatment, and Sutton responded by petitioning the WCAB for penalties and attorney fees against the Employer for failing to provide medical treatment. In February 1996, the WCJ received notice that the parties agreed to mutually withdraw their claims and that the Employer would continue to provide reasonable medical treatment based upon the Stipulations of May 9, 1985. The WCJ thus dismissed both actions with prejudice and ordered the Employer to provide reasonable medical treatment on an ongoing basis based upon the original stipulations in this matter of 5-9-85.

It is unclear from the record provided what treatment may have been provided over the next 10 years, but in July 2006, Sutton filed a Declaration of Readiness to Proceed requesting an expedited hearing because the Employer refused to provide Sutton with chiropractic services. The matter proceeded to hearing in November 2006, where the parties made vigorous objections to one anothers exhibits. According to the WCJ, the sole issue for adjudication was Suttons entitlement to continuing chiropractic care with Dr. David Meyers, D.C. Sutton testified that he had been treating with Dr. Meyers for pain mostly in his low back.^[2] He explained the treatments allow him to function and work and that he cant get by unless he has one or two treatments a week if hes had a flare-up. Sutton estimated he had about a dozen flare-ups over the past year.

In February 2007, the WCJ issued an opinion noting Sutton submitted medical evidence from 1992 from Dennis Swanson, D.C., and 1995 deposition testimony from Andrew Lind, D.C., while the Employer offered more recent reporting from 2002 and 2003 from Timothy Fahey, D.C., and David Lagala, D.C. The WCJ discounted the Employers medical evidence, however, because those chiropractors did not appear to be licensed in California (see  3209.3) and they incorrectly assume[d] that medical treatment is not necessary unless it is providing a curative effect without considering that the 1985 award for medical treatment included treatment to both cure and/or relieve from the effects of the prior injury. The WCJ therefore issued an interim award of continuing care with Dr. Meyers for six months and ordered the parties to develop the medical record with respect to what is the best care that applicant can receive to cure and/or relieve from the effects of his injury (as opposed to the reports now before the court that simply give opinions as to what does not work as opposed to what does).

The Employer petitioned the WCAB for reconsideration, contending Sutton

never received an award for future medical care because the 1985 stipulation provided that additional medical care may be provided and then only upon reasonable demand. The Employer claimed its medical evidence demonstrated Sutton did not require continuing chiropractic care, and moreover, that any such care is limited to 24 visits per year pursuant to the American College of Occupational and Environmental Medicines Occupational Medicine Practice Guidelines (ACOEM Guidelines).

In May 2007, the WCAB granted reconsideration and issued an Opinion and Order explaining Suttons 1985 award was a precautionary award for further medical treatment similar to that acknowledged by the Supreme Court in Barnes v. Workers Comp. Appeals Bd. (2000) 23 Cal.4th 679, 685. The WCAB found the precautionary award limited to the body areas specifically listed and upon Sutton making a demand in advance of his need for treatment. The WCAB added:

Within these limitations, [Sutton] is entitled to medical treatment as provided in Labor Code section 4600, i.e., such medical treatment as is reasonably necessary to cure and/or relieve him from the effects of his industrial injury. Under section 4600(b), such treatment must be based upon the ACOEM guidelines.

Not finding any specific evidence in the record that Sutton required treatment falling within the ACOEM Guidelines but agreeing with the WCJ that Sutton may be entitled to treatment not only to cure but also to relieve him from the effects of his industrial injury, the WCAB rescinded the WCJs interim award ordering six months of chiropractic treatment and remanded the matter to develop the record with regard to the medical treatment to which [Sutton] is entitled to cure or relieve him from the effects of his 1983 industrial injury.

DISCUSSION

Sutton asks this court to annul, vacate, and set aside the WCABs decision remanding the matter for further medical evidence claiming the stipulated 1985 award and subsequent 1996 order effectively mandate the Employer to provide any chiropractic care Sutton seeks without WCAB oversight. Like the WCAB, we disagree with Suttons overbroad interpretation of his stipulated award.

We preliminarily note that pursuant to section 5900, this court only reviews final WCAB orders, decisions, or awards.^[3] (See also  5901.) As this court explained in Maranian v. Workers Comp. Appeals Bd. (2000) 81 Cal.App.4th 1068, 1075 (Maranian):

A final order for purposes of section 5900 includes any order which settles, for purposes of the compensation proceeding, an issue critical to the claim for benefits, whether or not it resolves all the issues in the proceeding or represents a decision on the right to benefits. [Citations.]

For example, an interim order of the Board or a WCJ that presents a threshold issue is deemed to be final, and may properly be the subject of a petition for reconsideration. A threshold issue is an issue that is basic to the establishment of the employees rights to benefits, such as the territorial jurisdiction of the Board, the existence of the employment relationship, and statute of limitations issues. Likewise, the term final order includes orders dismissing a party, rejecting an affirmative defense, granting commutation, terminating liability, and determining whether the employer has provided compensation coverage.

In our view, the WCABs May 2007 Opinion and Order Granting Reconsideration remanding the matter for further proceedings is an interim order as to Suttons entitlement to further medical care. Although the WCAB rescinded the WCJs findings ordering the Employer to provide six months of medical treatment, the WCAB has not yet issued a final determination whether medical evidence demonstrates Sutton requires continued medical treatment due to the 1983 injury and stipulated award. We therefore may not review Suttons claim that Dr. Swansons 1992 medical reporting and Dr. Linds 1995 deposition testimony constituted substantial evidence of a need for further medical care.

As explained in Maranian, however, an interim WCAB order may nevertheless contain a final determination on a threshold issue. Here, the WCAB unequivocally held that in assessing whether Sutton is entitled to further medical treatment to cure or relieve the effects of his 1983 injury, section 4600, subdivision (b) requires that such treatment must be based upon the ACOEM guidelines.

Sutton claims that because his 1985 award issued before the ACOEM Guidelines were adopted by the Legislature as part of the 2004 workers compensation reform and their inclusion applies prospectively from the date of enactment on April 19, 2004, the guidelines have no bearing on his medical treatment. (Sen. Bill No. 899.)^[4]

Section 4600 provides in relevant part:

(a) Medical, surgical, chiropractic, acupuncture, and hospital treatment, including nursing, medicines, medical and surgical supplies, crutches, and apparatuses, including orthotic and prosthetic devices and services, that is reasonably required to cure or relieve the injured worker from the effects of his or her injury shall be provided by the employer.

(b) As used in this division and notwithstanding any other provision of law, medical treatment that is reasonably required to cure or relieve the injured worker from the effects of his or her injury means treatment that is based upon the guidelines adopted by the administrative director pursuant to Section 5307.27 or, prior to the adoption of those guidelines, the updated American College of Occupational and Environmental Medicines Occupational Medicine Practice Guidelines.

Section 5307.27 requires the administrative director, with consultation with the Commission on Health and Safety and Workers Compensation, to develop a medical treatment utilization schedule incorporating evidence-based, peer-reviewed, nationally recognized standards of care. Until such guidelines are established, however, the ACOEM Guidelines shall be presumptively correct on the issue and extent and scope of medical treatment, regardless of date of injury. ( 4604.5, subd. (c), italics added.) The presumption is rebuttable and may be controverted by a preponderance of the evidence establishing that a variance from the guidelines is reasonably required to cure and relieve the employee from the effects of his or her injury in accordance with Section 4600. ( 4604.5, subd. (c).) Regardless of any future developed medical standards or the interim ACOEM Guidelines, for injuries occurring on and after January 1, 2004, an employee shall be entitled to no more than 24 chiropractic, 24 occupational therapy, and 24 physical therapy visits per industrial injury. ( 4604.5, subd. (d)(1).)

Section 4604.5, subdivision (c) could not be more clear. Until the administrative director develops a new medical treatment utilization review schedule, the ACOEM Guidelines presumptively establish reasonable medical treatment, regardless of the date of injury. Suttons reliance on a standard of care reasonable in 1985 at the time the parties adopted the stipulated award does not make the standard reasonable today, especially where the Legislature has mandated otherwise. (See Schryer v . Southern California Edison (Aug. 29, 2007, SBR 0187767) __ Cal.Comp.Cases ___ [Medical treatment that is reasonably required to cure or relieve the injured worker from the effects of an industrial injury means treatment that is based on the updated ACOEM guidelines].) If the ACOEM Guidelines prove inappropriate or ineffective for Sutton, he may seek to rebut those standards based on substantial medical evidence pursuant to section 4604.5, subdivision (c). Moreover, because his injury occurred before January 1, 2004, he is not subject to the unrebuttable 24-visit chiropractic limitation of section 4604.5, subdivision (d)(1). We do not find any grounds to disturb the WCABs decision remanding the matter for further development of the record and instructing the WCJ to consider the presumptively correct ACOEM Guidelines.

DISPOSITION

The Petition for Writ of Review, filed June 20, 2007, is denied. This opinion is final forthwith as to this court.

Publication courtesy of California pro bono legal advice.

Analysis and review provided by La Mesa Property line attorney.

^*Before Wiseman, Acting P.J., Gomes, J., and Kane, J.

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

^[2] Dr. Meyers subsequently filed a related lien claim for unpaid medical treatment in the amount of $10,477.03.

^[3] Section 5900, subdivision (a) provides, in relevant part: Any person aggrieved directly or indirectly by any final order, decision, or award made and filed by the appeals board or a workers compensation judge under any provision contained in this division, may petition the appeals board for reconsideration in respect to any matters determined or covered by the final order, decision, or award, and specified in the petition for reconsideration. (Italics added.)

^[4] An uncodified section of Senate Bill No. 899 provides: The amendment, addition, or repeal of, any provision of law made by this act shall apply prospectively from the date of enactment of this act, regardless of the date of injury, unless otherwise specified, but shall not constitute good cause to reopen or rescind, alter, or amend any existing order, decision, or award of the Workers Compensation Appeals Board. (Stats. 2004, ch. 34,  47, p. 75.)