Trader Joes v. WCAB

Filed 2/28/07 Trader Joes v. WCAB CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE

A new schedule for rating permanent disabilities under the workers compensation law went into effect on January 1, 2005, replacing the schedule that had been in place since 1997. Labor Code section 4660, subdivision (d),[1] provides that the 2005 schedule applies to injuries predating its effective date when there has been no report by a treating physician indicating the existence of a permanent disability before January 1, 2005. Here we conclude that a report describing an applicants injury and treatment does not indicat[e] the existence of a permanent disability when no medical opinion was given that the injury would result in permanent disability.

BACKGROUND

Rick Lee Evetss hand was crushed by a forklift on January 4, 2004, while he was working for petitioner Trader Joes Company (Trader Joes). Dr. Frederick Bennett examined Evets on that date and wrote a report describing a [c]rush injury to the ulnar aspect of the right hand with open right fifth metacarpal fracture and probable traumatic amputation of the distal segment of the small finger. The patient may have direct traumatic nerve and tendon injury. The report also noted, His fifth finger will either be amputated or pinned, depending on intraoperative findings. Surgery was performed the next day and on other occasions.

Several reports issued by Evetss treating physicians in 2004 noted a limited range of joint motion in the injured hand, though none of the reports stated the condition would be permanent. On April 6, 2004, Dr. Kai-Uwe Mazur reported that Evets suffered from contractures, i.e., a chronic loss of motion. He described a posttraumatic deformity and arthritis in a report dated June 22, 2004. Evetss finger was never amputated and he was released to return to work on March 1, 2005. In October 2005, a qualified medical examiner issued a report declaring that Evets became permanent and stationary as of March 2005.

A trial was held to determine which permanent disability schedule appliedthe 1997 schedule that was in effect at the time of Evetss injury, or the schedule that went into effect on January 1, 2005. The 2005 schedule is based on the American Medical Association Guides to the Evaluation of Permanent Impairments (5th ed.) (AMA Guides), and its application would result in a lower percentage of permanent disability than would the application of the 1997 schedule. The workers compensation judge (WCJ) initially concluded that he was bound to apply the 2005 schedule in the absence of a pre-2005 report stating that Evets was permanent and stationary, and he issued an award based on this schedule.

Evets petitioned for reconsideration, arguing that several 2004 reports described medical conditions that by their nature would result in permanent disabilitya crush injury to the hand, a limited range of joint motion, and nerve damageand that these reports were sufficient to indicat[e] the existence of a permanent disability within the meaning of section 4660, subdivision (d). The WCJ issued an amendment to his award (Cal. Code of Regs., tit. 8,  10859), in which he applied the more generous 1997 schedule. The amended order stated, Having re-reviewed the medical records and considering the factors of permanent disability used within the AM[A] [G]uides, this judge does agree with applicants counsel that the treatment reports do provide an indication of permanent disability vis--vis the AM[A] [G]uides in the description of loss of range of motion and nerve damage. Trader Joes filed a petition for reconsideration of the amended award before the Workers Compensation Appeals Board (the board). In his report and recommendation on the petition for reconsideration, the WCJ clarified that he did not find any medical evidence of permanent disability prior to January 1, 2005 but did find an indication of permanent disability. The board denied reconsideration, and Trader Joes now seeks a writ of review.

DISCUSSION

Trader Joes argues that the boards decision must be annulled because the 1997 permanent disability rating schedule does not apply to Evetss injury. We agree.

The permanent disability rating schedule was revised effective January 1, 2005, as part of a comprehensive workers compensation reform package. (Sen. Bill No. 899.) The application of the schedule is controlled by section 4660, subdivision (d), which establishes the general rule that the version of the schedule in effect on the date of injury is the one to be applied in a particular case. An exception is made for pre-2005 injuries, to which the 2005 schedule applies when there has been either no comprehensive medical-legal report or no report by a treating physician indicating the existence of a permanent disability, or when the employer is not required to provide the notice required by Section 4061 to the injured worker. ( 4660, subd. (d), italics added.)[2] In this case, there was no comprehensive medical-legal report and no obligation to give notice under section 4061 prior to January 1, 2005, so the 1997 schedule could be applied only if a report by a treating physician indicating the existence of a permanent disability was prepared before 2005.

The interpretation of section 4660, subdivision (d), and its phrase existence of a permanent disability, is one of law that we review de novo. (See California Insurance Guarantee Assn. v. Workers Comp. Appeals Bd. (2003) 112 Cal.App.4th 358, 362.) The question of whether a particular treating physicians report indicates the existence of a permanent disability may be a mixed question of law and fact, but becomes a question of law subject to de novo review when, as here, the relevant underlying facts are undisputed. (See Jones v. Workmens Comp. Appeals Bd. (1971) 20 Cal.App.3d 124, 127.)

Trader Joes argues that there was no 2004 physician report indicating the existence of a permanent disability under section 4660, subdivision (d), because permanent is synonymous with permanent and stationary, and Evets was not declared permanent and stationary until 2005. (See Cal. Code Regs., tit. 8,  10152; see also General Foundry Service v. Workers Comp. Appeals Bd. (1986) 42 Cal.3d 331, 334-335.) We need not decide whether a treating physician must declare an applicants condition to currently be both permanent and stationary for a report to qualify under section 4660, subdivision (d), because in this case there is no pre-2005 report indicating that Evets was anything other than temporarily disabled.

When construing a statute, we turn first to the words of the statute, viewing them in context and in light of their plain, everyday, commonsense meaning. If there is no ambiguity or uncertainty, we simply presume the Legislature meant what it said, which makes further inquiry into legislative intent unnecessary. (Gardenhire v. Superior Court (2005) 127 Cal.App.4th 882, 893-894.) Section 4660, subdivision (d), provides that the 1997 permanent disability schedule will apply to cases in which prior to 2005, a physicians report indicated a permanent disability. This does not mean that the percentage of disability must have been determined prior to 2005, but does mean that a qualifying report must at least state that the applicant is or will be permanently disabled or, at a minimum, describe an injury that necessarily will result in permanent disability. None of the reports from 2004 described Evetss injuries or disability in such a manner.

In the report and recommendation on Trader Joes petition for reconsideration, the WCJ explained the amended award as follows: With regard to the exception of the treating physician indicating permanent disability in a report prior to January 1, 2005, this judge believes [Trader Joes] misread the law and that this law does not require proof of a permanent disability but only an indication of permanent disability. Per the dictionary, indicate is defined as to be or give a sign of, to direct attention to; point out. What this judge found in the reports of Dr. Kai Mazur and Dr. Bennett was information under the AMA Guides that points to permanent disability; i.e., loss of range of motion and nerve damage. This judge did not find any evidence of permanent disability prior to January 1, 2005, but did find an indication of permanent disability.

The WCJs observation that Evetss injuries were of a type described in the AMA Guides does not indicate that Evetss injuries were necessarily permanent. The AMA Guides list many different types of injuries and conditions, many of which can result in either temporary or permanent disability. There is nothing in the record that establishes that Evetss nerve damage and reduced range of motion were necessarily permanent as of December 31, 2004. To the contrary, Dr. Mazurs report dated November 23, 2004, like several of his earlier reports, concluded that Evets remains totally, temporarily disabled. (Italics added.) The report did not give a sign of, direct attention to, or point out any facts or conclusions indicating that Evetss disability would be permanent. The mere mention of a condition that could result in permanent disability is insufficient. (Cf. State Comp. Ins. Fund v. Workers Comp. Appeals Bd. (2007) 146 Cal.App.4th 1311, 1314-1315 [report that doctor believe[s] permanent disability is within reasonable medical probability emanating from this injury (italics omitted) that contained no explanation tying prognosis to prior reports declaring that worker remained temporarily totally disabled insufficient to justify use of pre-2005 schedule].)

DISPOSITION

The petition for writ of review is granted. That portion of the award applying the 1997 permanent disability rating schedule is vacated, and the case is remanded for recalculation of Evetss permanent disability rating under the schedule that went into effect on January 1, 2005. In all other respects, the award is affirmed. Evetss request for attorney fees under section 5801 is denied. The parties shall bear their own costs herein.

_________________________

Pollak, J.

We concur:

_________________________

Parrilli, Acting P. J.

_________________________

Siggins, J.

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[1] All further statutory references are to the Labor Code.

[2] The full text of section 4660, subdivision (d), states: 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 received or occurring on and after the effective date and 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 a permanent disability, or when the employer is not required to provide the notice required by Section 4061 to the injured worker.