Marsh v. WCAB

Filed 3/22/07 Marsh 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, Merle C. Rabine, and Janice Jamison Murray, Commissioners. Dominic E. Marcelli, Workers Compensation Administrative Law Judge.

Mitchell & Powell and Darin L. Powell, for Petitioner.

No appearance by Respondents.

-ooOoo-

Stanley Marsh petitions this court for a second writ of review (Cal. Rules of Court, rule 8.494; Lab. Code,^[1] 5950) following this courts earlier decision concluding the new apportionment provisions of Senate Bill No. 899 (SB 899) applied to all cases not yet final at the time of the legislative enactment on April 19, 2004, regardless of the dates of injury and any interim decision. (Marsh v. Workers Comp. Appeals Bd. (2005) 130 Cal.App.4th 906 (Marsh); Stats. 2004, ch. 34.)

Marsh contends that under SB 899s revised apportionment standards, the determination of the Workers Compensation Appeals Board (WCAB) that his 24 percent increase in permanent disability was 50 percent nonindustrial lacks substantial evidence and that the WCAB should have instead adopted the opinion of the workers compensation administrative law judge (WCJ) finding apportionment inappropriate. Marsh also claims the WCAB exceeded its powers by deferring its disposition on the calculation of benefits until the law of apportionment is settled. We will deny the petition.

BACKGROUND

The factual background has not changed since summarized in Marsh, supra, 130 Cal.App.4th at pp. 910-911:

On August 12, 1999, Marsh injured his back while working as a welder for Stanley Bostitch in Visalia.^[[2]] In September 2000, the parties stipulated the injury caused Marsh to suffer a 46 percent level of permanent disability based on Dr. Arthur H. Holmboes agreed medical examination. The stipulation provided Stanley Bostitch would compensate Marsh a total of $40,460, less attorney fees, plus future related medical treatment. A WCJ approved the agreement and issued an appropriate award in March 2001.

In November 2001, Marsh timely petitioned the WCAB to reopen his disability claim by alleging the industrial injury caused new and further disability. ( 5410, 5803.) Marsh alleged his primary treating physician removed him from all work activities as a result of a marked increase in back pain. At a February 2004 hearing, the parties submitted the issues of permanent disability, apportionment, and attorney fees on the written record.

On April 9, 2004, the WCJs findings and award concluded that, in accord with Dr. Holmboes medical opinion, Marshs level of permanent disability increased to 70 percent, amounting to $98,095 plus a life pension. ( 4659.) The WCJ noted that Dr. Holmboes report suggests Marshs increased disability was caused equally by the industrial injury and by osteopenia^[[3]] and that Dr. Holmboe thought Marsh sustained subsequent compression fractures; however, Stanley Bostitch failed to present supporting medical evidence sufficient to meet its burden of proof in establishing apportionment under section 4663 or former section 4750.5 as then in effect. Accordingly, the WCJ declined to apportion the award and found Stanley Bostitch liable for the full amount of Marshs 70 percent disability.

On April 19, 2004, 10 days after the WCJs determination, the Legislature enacted a series of reforms to the workers compensation system as part of SB 899. Significantly, the Legislature repealed and replaced the apportionment statutes relied upon by the WCJ.

Stanley Bostitch petitioned the WCAB to reconsider the WCJs decision in light of the new apportionment laws. Over the WCJs objection, the WCAB granted reconsideration and returned the case to the trial level to consider whether SB 899 should be applied to the WCJs decision and, if so, whether the new provisions required a different outcome. Preempting the WCJ from readdressing the matter, Marsh petitioned this court for a writ of review, which we granted to examine the applicable effective date of SB 899s apportionment statutes.

This court concluded the new apportionment provisions applicable to Marshs petition to reopen and remanded the matter to the WCAB. (Marsh, supra, 130 Cal.App.4th at p. 917-918.)

The WCAB remanded the matter to the trial level, and the parties deposed Dr. Holmboe in January 2006 regarding his recollection as to the cause of Marshs disability.^[4] In July 2006, the matter was resubmitted to the WCJ based on Dr. Holmboes prior medical reporting and recent deposition transcript. The parties stipulated Dr. Holmboes opinion accurately represented Marshs total level of disability, but continued to disagree whether the resulting 70 percent permanent disability rating should be apportioned.

The WCJ issued a findings and award in September 2006 awarding Marsh an unapportioned permanent disability award of 70 percent, amounting to a total of $98,095 paid over 426.50 weeks plus a life pension. ( 4659.) The WCJ concluded Stanley Bostitch failed to meet its burden of proving Marshs permanent disability should be apportioned to nonindustrial factors. Referring to the WCABs en banc decision in Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604 [en banc] (Escobedo), the WCJ explained:

In this case, Dr. Holmboe, the Agreed Medical Examiner, has opined that 50% of applicants permanent disability is due to the industrial injury and 50% is due to applicants non-industrial underlying disease process (i.e. osteopenia). Unlike Dr. Ovadia, the physician in the Escobedo case, Dr. Holmboe did not explain how and why the osteopenia is responsible for 50% of the disability. Moreover, Dr. Holmboe did not opine that there is a medically reasonable basis for apportionment as was done by Dr. Ovadia. [] Instead, Dr. Holmboes opinion regarding apportionment is purely speculative and conclusionary. In none of Dr. Holmboes reports or deposition transcripts does he render a medical opinion that is predicated on reasonable medical probability. Moreover, Dr. Holmboe does not set forth the reasoning to support his apportionment opinion. Instead, Dr. Holmboe states that 50% of applicants disability is non-industrial because I think thats fair.

Stanley Bostitch timely petitioned the WCAB for reconsideration. In November 2006, the WCAB granted reconsideration and issued an opinion disagreeing with the WCJ. The WCAB found Dr. Holmboes medical opinion substantial evidence under Escobedo and adopted his medical opinion that 50 percent of Marshs disability was apportionable to his preexisting nonindustrial osteopenia. The WCAB added, however, that under its en banc decision in Vargas v. Atascadero State Hospital (2006) 71 Cal.Comp.Cases 500 (Vargas) expanding on this courts earlier Marsh opinion, SB 899 apportionment applies only to the increased disability, and not to the overall disability. Adding 12 percent, half of the total 24 percent increase, to Marshs 46 percent pre-SB 899 level of permanent disability, the WCAB awarded Marsh a 58 percent permanently disability rating.^[5]

Having established Marshs percentage of permanent disability, the WCAB deferred and reserved jurisdiction over the issue of awarding the dollar amount of his permanent disability indemnity based on both irreconcilable conflict and uncertainty in the appellate case law regarding the appropriate method of calculating an apportioned award following SB 899. (See Welcher v. Workers Comp. Appeals Bd. (2006) 142 Cal.App.4th 818, review granted Nov. 15, 2006, S147030; Brodie v. Workers Comp. Appeals Bd. (2006) 142 Cal.App.4th 685, review granted Nov. 15, 2006, S146979; Nabors v. Workers Comp. Appeals Bd. (2006) 140 Cal.App.4th 217, review den. Aug. 23, 2006, S145097; E & J Gallo Winery v. Workers Comp. Appeals Bd. (2005) 134 Cal.App.4th 1536 (Dykes), review den. Mar. 1, 2006, S140645.) The WCAB described the diverging formulas applied by the appellate courts and elected to wait until the Supreme Court resolves the conflict -- or alternatively, the Legislature acts or the Appeals Board decides to revisit the question.^[6] The WCAB emphasized, however, that its findings regarding the overall level of permanent disability, the percentage of industrial causation, and the percentage of non-industrial causation are not being deferred and should be treated as final for purposes of reconsideration, appellate review, and reopening.

DISCUSSION

I. Standard of Review

The WCABs factual findings are conclusive and final and are not subject to review. ( 5953.) Those findings, however, must support the WCABs order, decision, or award, which must be both reasonable and supported by substantial evidence. ( 5952, subds. (c)-(e).) We therefore review whether substantial evidence, in view of the entire record, supports the WCABs award and ensure the WCABs findings are not unreasonable, illogical, improbable, or inequitable considering the overall statutory scheme. (Braewood Convalescent Hospital v. Workers Comp. Appeals Bd. (1983) 34 Cal.3d 159, 164; Western Growers Ins. v. Workers Comp. Appeals Bd. (1993) 16 Cal.App.4th 227, 233.) The term substantial evidence means evidence which, if true, has probative force on the issues. (Braewood Convalescent Hospital v. Workers Comp. Appeals Bd., supra, 34 Cal.3d at p. 164.) So long as substantial evidence supports the decision, the WCAB is empowered on reconsideration to resolve conflicts in the evidence, to make its own credibility determinations, and to reject the findings of the WCJ and enter its own findings on the basis of its review of the record. (Rubalcava v. Workers Comp. Appeals Bd. (1990) 220 Cal.App.3d 901, 908.) This court may also inquire into whether the WCABs decision was procured by fraud and whether the WCAB acted without or in excess of its powers. ( 5952, subds. (a)-(b).)

II. Substantial Evidence to Apportion Marshs Award

As enacted under SB 899, section 4663, subdivision (b) requires any physician who prepares a report addressing an employees level of permanent disability to also address the issue of causation of the permanent disability. Section 4663, subdivision (c) adds that a physicians report is not complete unless the physician makes   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. (Dykes, supra, 134 Cal.App.4th at p. 1542.) In Escobedo, the WCAB set forth the degree of medical evidence required under the new medical reporting requirements:

[T]he mere fact that a report addresses the issue of causation of the permanent disability and makes an apportionment determination by finding the approximate relative percentages of industrial and non-industrial causation does not necessarily render the report one upon which the WCAB may rely. This is because it is well established that any decision of the WCAB must be supported by substantial evidence. [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 physician's opinion, not merely his or her conclusions. [Citations.]

Moreover, in the context of apportionment determinations, the medical opinion must disclose familiarity with the concepts of apportionment, describe in detail the exact nature of the apportionable disability, and set forth the basis for the opinion, so that the Board can determine whether the physician is properly apportioning under correct legal principles. [Citations.]

Thus, to be substantial evidence on the issue of the approximate percentages of permanent disability due to the direct results of the injury and the approximate percentage of permanent disability due to other factors, a medical opinion must be framed in terms of reasonable medical probability, it must not be speculative, it must be based on pertinent facts and on an adequate examination and history, and it must set forth reasoning in support of its conclusions.

For example, if a physician opines that approximately 50% of an employees back disability is directly caused by the industrial injury, the physician must explain how and why the disability is causally related to the industrial injury (e.g., the industrial injury resulted in surgery which caused vulnerability that necessitates certain restrictions) and how and why the injury is responsible for approximately 50% of the disability. [Fn.] And, if a physician opines that 50% of an employees back disability is caused by degenerative disc disease, the physician must explain the nature of the degenerative disc disease, how and why it is causing permanent disability at the time of the evaluation, and how and why it is responsible for approximately 50% of the disability. (Escobedo, supra, 70 Cal.Comp.Cases at pp. 620-621.)

In the footnote to the preceding paragraph, the WCAB added that a physician cannot make an arbitrary percentage finding simply because it is fair in a particular case. (Escobedo, supra, 70 Cal.Comp.Cases at p. 621.) The WCAB continued by concluding that even though the evaluating physician in Escobedo, Dr. Daniel Ovadia, prepared his medical report before the adoption of SB 899, the reporting nevertheless constituted substantial evidence because it met the standards of section 4663. (Escobedo, supra, 70 Cal.Comp.Cases at p. 622.)

Here, the WCAB disagreed with the WCJs finding that Dr. Holmboe failed to provide a reasonable medical basis for concluding that 50 percent of Marshs disability was caused by his nonindustrial underlying osteopenia and that his opinion was speculative and conclusory. Applying the standards set forth in Escobedo, the WCAB explained:

First, it is clear, based on the [opinion of the agreed medical examiner (AME), Dr. Holmboe], that applicant has severe osteopenia (decalcified vertebrae). Next, the fact that the osteopenia was undiagnosed prior to the industrial injury and that it was not disabling prior to the injury is not relevant. What matters under Escobedo, is what is causing the disability at the time of the evaluation. Here, the AMEs discussion is sufficient both on how and why the disability was caused by the osteopenia.

He provides evidence of specificity of apportionment to nonindustrial factors, including to nonindustrial pathology, in indicating the basis for his percentage split of 50/50%. Moreover, he gives reasons in support of his apportionment opinion regarding the nonindustrial factors of disability, and gives reasons in support of the industrially related approximate percentage of disability. [] Thus, we find that, Dr. Holmboes opinion, including his deposition testimony, meets the requirements of Escobedo, supra, and constitutes substantial evidence on the issue of apportionment.

Marsh effectively asks this court to annul the WCABs apportionment determination because Dr. Holmboe was unable to determine Marshs level of preexisting disability to osteopenia with precision accuracy. Marsh, however, places a near-impossible burden on an examining physician and contradicts the standard imposed by the Legislature that the physician make a medical determination as to the approximate percentage of permanent disability caused both by the industrial injury and other factors. ( 4663, subd. (c).)

We have reviewed the deposition transcript of Dr. Holmboe, as well as the medical records previously filed with this court by the WCAB in the original proceedings, and conclude they reasonably support the WCABs determination. Although Dr. Holmboe expressed his understandable confusion with the evolving law of apportionment and was therefore reluctant to make any apportionment conclusion with 100 percent accuracy, he was unwavering that in his medical opinion, Marsh suffered from preexisting osteopenia which attributed 50 percent to Marshs current level of disability. When asked if Marsh would suffer a work restriction from preexisting pathology even absent the industrially related compression fractures, Dr. Holmboe explained:

A. Well, if he had never had a compression fracture and showed that he had significant osteopenia, I would be giving him prophylactic preclusions as I would any patient that had this condition. Basically tell him I dont want you to do any heavy lifting. I dont want you to slip and fall on your butt at the ice rink or roller rink or getting the paper on a frosty morning. I dont want you to do anything jolting your back because youre likely to have a compression fracture. And thats what most any physician would tell their patient with this condition.

Q. Now, keeping in mind, taking Mr. Marsh, who has both compression fractures that were assuming happened at work and the underlying osteopenia that youve indicated there would be restrictions even without the compression fractures, would it be fair, then, to go back to your opinion from March of 2003 and say that, you know, 50 percent of these work restrictions Ive given are due to the fact that he has osteopenia and I would give to anybody who has osteopenia of this severity, and the other 50 percent is due to the fact he actually has compression fractures that were saying happened at work because of the osteopenia?

A. Yes. [] []

Q. Again, just to clarify, then, you feel that 50 percent of the work restrictions youve given at this point or 50 percent of the permanent disability youve given at this point is due to the osteopenia, and basically, prophylactic restrictions because of that osteopenia, and the other 50 percent is due to the actual compression fractures that occurred at work?

A. Yes, sir, thats what I intended to say.

Although Marsh points to specific instances of inconsistencies in Dr. Holmboes statements after being repeatedly questioned on his apportionment findings, his ultimate conclusion that 50 percent of Marshs disability was caused by preexisting pathology, based on his medical opinion and objective medical evidence, remained consistent with his original reporting. We therefore conclude substantial evidence supports the WCABs determination.

III. Deferring Calculation of Marshs Award

Marsh further contends the WCAB exceeded its powers by deferring the issue of calculating the amount of permanent disability benefits based on the conflict and uncertainty in the published appellate caselaw on the issue of apportionment. Marsh argues the WCABs course of action is unsupported and legally impermissible because he only suffered one industrial injury and the conflicting published cases cited by the WCAB involve multiple work injuries with prior permanent disability awards. (See ante, pp. 5-6.)

Sen. Bill 899 provides for apportionment based on either nonindustrial factors sufficiently described in 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 p. 1543.) While noting the factual distinction, Marsh does not offer any legal basis to treat the calculation of apportionment differently between the two reasons for apportioning a permanent disability award. Moreover, Marsh does not provide any authority for its proposition that the WCABs course of action is legally impermissible. Regardless, the WCABs decision to defer the calculation of an apportioned disability award is nearly moot, as it is scheduled to be addressed by the Supreme Court on April 3, 2007. (Welcher v. Workers Comp. Appeals Bd., supra, 142 Cal.App.4th 818, review granted Nov. 15, 2006, S147030; Brodie v. Workers Comp. Appeals Bd., supra, 142 Cal.App.4th 685, review granted Nov. 15, 2006, S146979.) Accordingly, we do not address the WCABs power to defer a final determination pending potentially imminent guidance from the Supreme Court.

DISPOSITION

The petition for writ of review, filed January 11, 2007, is denied. This opinion is final forthwith as to this court.

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

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

^[2] At the time of Marshs injury, Stanley Bostitch was permissibly self-insured for purposes of workers compensation. ( 3700, subd. (b).) Further references to Stanley Bostitch include its third-party administrator, respondent Constitution State Service Company.

^[3] Osteopenia is a condition of bone in which decreased calcification, decreased density, or reduced mass occurs. (The American Heritage Stedmans Medical Dict. (2001) p. 590.)

^[4] Stanley Bostitch represented at oral argument before this court that further discovery was unnecessary because Dr. Holmboes medical reporting sufficiently addressed the new apportionment standards, but Marsh disagreed. (Marsh, supra, 130 Cal.App.4th at p. 917 & fn. 6.) We acknowledged further development of the record in light of the new medical reporting requirements might be necessary in cases blind-sided by SB 899s immediate adoption. (Marsh, supra, at p. 917.)

^[5] The reasoning of the WCABs decision in Vargas is not before this court, as it was not raised by petitioner and Stanley Bostitch did not answer to the petition for writ of review.

^[6] Because the issue of the appropriate apportionment formula following enactment of SB 899 is presently pending before the Supreme Court in case Nos. S147030 and S146979, we note the WCABs opinion after reconsideration misstates the holding of this courts decision in Dykes, supra, 134 Cal.App.4th 1536 by summarizing Dykes as concluding that in cases of successive injuries with the same self-insured employer, 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). (See identical quotation in the WCABs significant panel decision in Erickson v. Southern California Permanente Medical Group/Kaiser Permanente (2006) 72 Cal.Comp.Cases 103.) 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 later explained that the WCJ and WCAB calculated that Dykess current disability of 73 percent warranted 453.50 weeks of $230 weekly payments for an aggregate benefit of $104,305, and then subtracted the value of his 20.5 percent disability established under the 1999 settlement, $11,680, resulting in a $92,625 current award. (Dykes, supra, 134 Cal.App.4th at pp. 1543, 1545, emphasis added, fn. omitted.)

In Dykes, this court did not follow the suggested interpretation of calculating apportioned benefits by subtracting old dollars from new dollars and instead 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.) Mindful that the value of awards may change over time and consistent with formula C as described by the Supreme Court in Fuentes v. Workers Comp. Appeals Bd. (1976) 16 Cal.3d 1, 5, we held an employee receiving a subsequent apportionable award from the same self-insured employer 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.) The distinction was apparently lost under the facts presented in Dykes where the disability tables had not changed between the employees injuries.