Sierra Bible Church v. WCAB (Clink)

Filed 1/30/07 Sierra Bible Church v. WCAB (Clink) 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Merle C. Rabine, Ronnie G. Caplane, and Janice Jamison Murray, Commissioners. Alvin R. Webber, Workers Compensation Administrative Law Judge.

Catherine A. Martinez, for Petitioners.

No appearance by Respondent Workers Compensation Appeals Board.

Raymond M. Wyatt, for Respondent Thresia Clink.

-ooOoo-

Petitioners Sierra Bible Church (SBC) and GuideOne Insurance Company petition for a writ of review contending the medical evidence fails to support the finding of the Workers Compensation Appeals Board (WCAB) not to apportion a disability award based on the employees underlying pathology. (Lab. Code,  5952.^[1]) We will deny the petition.

BACKGROUND

SBC admitted that Thresia Clink sustained a work-related injury to her back caused by repetitive lifting of tables and chairs while working as a custodian on June 17, 2002. Clink further alleged she sustained injury to her spine and both lower extremities.

Following a hearing in February 2006, a workers compensation administrative law judge (WCJ) determined Clink was permanent and stationary as of May 28, 2003, pursuant to the opinion of the parties agreed medical examiner (AME) and orthopedic surgeon, Dr. Robert L. England. Apportioning out 75 percent of Clinks disability to preexisting degenerative disc disease pursuant to Dr. Englands deposition testimony, the WCJ awarded Clink future medical care and 25 percent permanent partial disability amounting to $16,277.50 paid over 95.75 weeks. The WCJ also found Clink did not sustain a separate injury to her spine or any other part of the body.

Clink obtained new counsel and petitioned the WCAB for reconsideration claiming the injury should not have been apportioned. In a report and recommendation to the WCAB, the WCJ readily acknowledged that the law in this regard allows for several interpretations and is less than a model of clarity, but noted that apportionment is now allowed to pathology and remains a defense burden of proof. The WCJ advised the WCAB that the AME clearly and unequivocally apportioned 75% of Applicants present disability to non-industrial factors.

The WCAB granted reconsideration and issued an opinion reversing the WCJs ruling. The WCAB concluded the WCJ incorrectly interpreted Dr. Englands opinion in apportioning 75 percent of the causation of applicants permanent disability to other factors pursuant to section 4663. Without apportioning the injury, the WCAB awarded Clink a 77 percent disability rating based on Dr. Englands initial medical reporting.

DISCUSSION

SBC contends the WCAB erred in overruling the WCJs apportionment determination accounting for Clinks preexisting degenerative disc disease. Apportionment is the process of segregating the residuals of an industrial injury from those attributable to other industrial injuries, or to nonindustrial factors, in order to fairly allocate the legal responsibility. (E & J Gallo v. Workers Comp. Appeals Bd. (2005) 134 Cal.App.4th 1536, 1542 (Dykes); Marsh v. Workers Comp. Appeals Bd. (2005) 130 Cal.App.4th 906, 912 (Marsh).)

As this court explained in both Dykes and Marsh, before the Legislature enacted Senate Bill No. 899 (Sen. Bill. 899) effective April 19, 2004, apportionment was  concerned with the disability, not its cause or pathology. (Dykes, supra, 134 Cal.App.4th at p. 1542; Marsh, supra, 130 Cal.App.4th at p. 912; see Stats. 2004, ch. 34,  33-35, 37-38.) Under the former statutory scheme focusing on disability, an employer could be liable to the full extent an industrial injury accelerates, aggravates, or lights up a nondisabling preexisting disease, condition, or physical impairment. (Dykes, supra, 134 Cal.App.4th at p. 1542.) The revised apportionment standards apply to all cases not yet final at the time of Sen. Bill 899s April 19, 2004, effective date. (Dykes, supra, 134 Cal.App.4th at p. 1543; Marsh, supra, 130 Cal.App.4th at p. 910.)

Now, apportionment is based on causation and the employer shall only be liable for the percentage of permanent disability directly caused by the injury arising out of and occurring in the course of employment. ( 4663, subd. (a) & 4664, subd. (a).) The plain reading of causation in this context is causation of thepermanent disability. (Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 611 [en banc], review den. Nov. 16, 2005, S137275.) Examining physicians therefore must make an apportionment determination by finding what approximate percentage of the permanent disability was caused by the direct result of injury arising out of and occurring in the course of employment and what approximate percentage of the permanent disability was caused by other factors both before and subsequent to the industrial injury, including prior industrial injuries. ( 4663, subd. (c).) In short, Sen. Bill 899 provides for apportionment based on either nonindustrial factors sufficiently described by the medical evidence ( 4663, subd. (c)) or as previously awarded to the employee under a prior workers compensation claim ( 4664, subd. (b)). (Dykes, supra, 134 Cal.App.4th at pp. 1542-1543.)^[2]

In a September 23, 2004, AME report on Clinks condition, Dr. England recited the relevant changes to the law of apportionment and concluded, As far as Ms. Thresia Clink is concerned it is my medical opinion 100% of permanent disability is secondary to the industrial injury.^[3] On January 19, 2005, after reviewing additional medical reports and video tapes, Dr. England reaffirmed his earlier report as written. When asked to elaborate on his conclusion at a March 24, 2005, deposition, Dr. England explained:

Now, lets go back to the disc. As long as -- all of us, if youre after the age of 20, you have degenerative -- you have tumor necrosis factor alpha in the disc. And as long as the disc is intact, or the annulus fibrosis, you have no symptomatology.

But if you get a rent, a sudden loading, an accident, or something that causes a leak or a tear of the annulus fibrosis, allowing the contents of the disc to come in contact with the surrounding tissue, youre going to have a significant onset of pain.

Later elaborating on degenerative disc disease, Dr. England continued:

Okay. Degenerative disc disease, as Ive talked about, it starts after the age of 20 with a decreased blood supply to the disc itself. With the decreased blood supply to the disc, there is death of the cells. They do not undergo a normal death but an apoptotic death where they break into the component parts. One of the component parts is tumor necrosis factor alpha.

So if youre over the age of 20, you have the precursor for this problem. But it will not bother you as long as you have no trauma to your spine or no rent in the anulus. Then you will have no problem. [] []

So it can depend on the genetic makeup of the individual that can predispose them to degenerative disc disease. As long as the anulus is intact, you will have no problem. [] []

What Im trying to say is it could be just normal wear and tear for [Clinks] body, and it may be that she has a problem with the collagen fibers. I dont know. Youd have to do genetic studies to determine that.

When pressed whether he believed Clinks injury resulted from a specific incident or cumulatively over time, Dr. England responded:

Now we get into speculation. All I can say is she had it occur that day. It appears to be work related. Certainly, all these other things are influencing: genetics, repetitive bending and lifting, job activities, what she does at home. All these things are important.

The questioning continued:

Q. Okay. So can you tell me what -- and I have to ask this because of the way the code is written -- what approximate percentage of [Clinks] disability is caused by work activity as opposed to natural degeneration of the disc that occurs at age 20?

A. Okay. I believe now that you have a background, with the discussion that we had, that the main pain generator is tumor necrosis factor alpha with disc disease. The second one is SI [sacroiliac] joint dysfunction. The third is 18 percent secondary to the facettes.

Its my impression that absent the degenerative disc disease, that this is probably 75 percent. I know its high and the plaintiffs are not going to like this. But a high percentage, 75 percent, is secondary to that tumor necrosis factor alpha, which is preexisting and is present in everyone.

But as long as its contained, there is no problem. But once this gets out of the -- out of the anulus fibrosis, it is a significant pain generator and probably 75 percent of the cause of [Clinks] symptomatology, pain, and disability.

Q. Okay. So you went from 75 one way to 75 the other way.

A. No. I think that 75 percent of the pain is secondary to the -- again, Im talking specifically about the disc itself -- is secondary to the tumor necrosis factor alpha and would be preexisting.

Q. Okay.

A. And then 25 percent would be due to the injury. But you also have to look at a legal -- thats a pathology looking at it. But you also have to look at a legal viewpoint that absent the injury itself, [Clink] would not have the symptomatology.

Q. Okay. Well, but didnt you just tell me that absent the injury [Clink] might have had the symptomatology?

A. Yes. But it appears that it was work related. If you can indicate or find that it wasnt work related, yes, then a hundred percent goes to nonwork relation.

Reviewing the medical reporting and testimony, the WCAB concluded Dr. England did not find any preexisting disability caused her current disability. Nor did he opine that the naturally occurring tumor necrosis factor alpha would have caused disability at some point absent the industrial injury. To the contrary, he was very specific in stating that as long as the anulus fibrosis was intact there would have been no symptomatology and no disability.

Applying the new apportionment standards, Division Two of the Fourth Appellate District recently reversed a nonapportioned award due to an employees underlying chronic degenerative disease of the lumbar spine in E.L. Yeager Construction v. Workers Comp. Appeals Bd. (2006) 145 Cal.App.4th 922 [52 Cal.Rptr.3d 133] (Gatten). An independent medical examiner recommended apportioning 20 percent of the employees lower back injury to a a naturally occurring process that everyone gets, but it bothers some people and others it does not. (Id. at 925.) Because the employee had a history of occasional back pain and treatment, an MRI taken before the industrial injury showed the degenerative changes had already begun. (Ibid.)

Unlike Gatten, SBC did not present any medical evidence that Clink personally suffered from an underlying pathology. Instead, Dr. England noted that everyone after the age of 20 begins to suffer from tumor necrosis factor alpha in the disc, but as long as the disc is intact, there are no symptoms. When pressed, Dr. England hypothesized that only 25 percent of Clinks disability resulted from the injury itself, while 75 percent resulted from a preexisting condition of the body present in every adult. Dr. England was clear to point out, however, that the injury appeared work-related and that absent the injury itself, [Clink] would not have the symptomatology. Accordingly, Dr. England plausibly concluded in his AME reporting that Clinks industrial injury was the sole cause of her permanent disability.

As evidenced by the disagreement between the WCJ and the WCAB, Dr. Englands testimony is subject to interpretation and is less than definitive on the issue of establishing apportionment. It is well-settled, however, that the burden of proving apportionment rests on the employer. ( 5705; Pullman Kellogg v. Workers Comp. Appeals Bd. (1980) 26 Cal.3d 450, 456.) We noted in Dykes thatapportionment based on nonindustrial factors must be sufficiently described by the medical evidence. (Dykes, supra, 134 Cal.App.4th at pp. 1543.) Here, the WCAB concluded SBC failed to prove Clink suffered from an apportionable underlying disease or condition that attributed to her disability. Since this court is required to uphold the factual determination of the WCAB reasonably supported by the evidence ( 5953), we must deny the petition.

DISPOSITION

The petition for writ of review, filed November 13, 2006, is denied. Respondent Thresia Clinks request for attorney fees is denied. This opinion is final forthwith as to this court.

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

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

^[2] In Dykes, this court concluded that where an employee sustains multiple disabling injuries while working for the same self-insured employer, the employee is entitled to compensation for the total disability above any percentage of disability previously awarded. (Dykes, supra, 134 Cal.App.4th at p. 1540, emphasis added.) Although the Dykes employer argued the WCAB inappropriately subtracted the dollar amount of the prior award from the dollar amount of employees current level of disability, we affirmed the result because the disability tables had not changed between injuries. (Id. at pp. 1541, 1551.) Mindful that the value of awards may change over time and consistent with formula C as set forth by the Supreme Court in Fuentes v. Workers Comp. Appeals Bd. (1976) 16 Cal.3d 1, 5, however, we expressly held an employee is entitled to the additional percentage of disability between disability ratings on the permanent disability table applicable for the subsequent injury. (Dykes, supra, at p. 1554.) We therefore disagree with the WCABs recent significant panel decision to the extent it summarizes Dykes as holding the proper method for calculating permanent disability indemnity after apportionment is to subtract the actual dollar amount of the permanent disability indemnity award for the prior injury from the currentdollar value of the overall permanent disability caused by both the current injury and the prior injury (i.e., subtracting old dollars from new dollars). (Erickson v. Southern California Permanente Medical Group/Kaiser Permanente (2006) 72 Cal.Comp.Cases ___, ___.)

^[3] Construing the diagnosis in favor the WCABs nonapportioned award, we presume Dr. England utilized the definition of secondary in the medical context: Derived from what is primary or original. (American Heritage Stedmans Medical Dict. (2001) p. 747.)