Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
ORIGINAL PROCEEDINGS; petition for writ of review from a decision of the Workers’ Compensation Appeals Board. Frank M. Brass, Ronnie G. Caplane, and James C. Cuneo, Commissioners. Keigo Obata, Workers’ Compensation Administrative Law Judge. WCAB No. FRE0193412
Theresa Blackburn, in pro. per., for Petitioner.
No appearance for Respondent Workers’ Compensation Appeals Board.
Law Offices of Jane Woodcock and Jane Woodcock, for Respondent Fresno Unified School District.
Before Levy, Acting P.J., Dawson, J., and Hill, J.
OPINION
Theresa Blackburn petitions this court in propria persona for a writ of review from a decision of the Workers’ Compensation Appeals Board (WCAB). (Lab. Code, §§ 5950, 5952; Cal. Rules of Court, rule 8.494.) We deny the petition because the issues were waived by failing to raise them before the WCAB and do not appear relevant to any of the WCAB’s findings. Moreover, the only finding on reconsideration against Blackburn’s interest resulted in remanding an issue for further proceedings and therefore is not reviewable as a final order.
Further statutory references are to the Labor Code unless otherwise stated.
BACKGROUND
Blackburn was working as a special education assistant for the Fresno Unified School District (FUSD) on April 4, 2000, when she sustained admitted industrial injuries to her back, right knee, and left shoulder, and claimed additional injuries to her neck, right shoulder, elbows, wrists, hands, right carpal tunnel and psyche. According to Blackburn, the injuries arose out of an incident where she was assisting in a special education classroom for severely handicapped children when a student “started kicking and head butting her in the chest and all over the front of [her] body” for five minutes.
After a June 26, 2007, hearing, following an earlier remand from the WCAB, a workers’ compensation administrative law judge (WCJ) issued a November 20, 2007, opinion agreeing with the admitted injuries, but finding Blackburn did not prove she sustained the additionally claimed physical injuries on an industrial basis based on the medical opinion of agreed medical examiner (AME), Dr. Fredric Newton. Considering qualified medical examiner (QME) reports presented by both Blackburn and FUSD, the WCJ concluded Blackburn also sustained psychological injury arising out of the April 4, 2000, incident, but that the injury was not yet permanent and stationary.
In violation of California Rules of Court, rule 8.494(a)(1)(B), Blackburn failed to include a copy of the WCJ’s findings issued on November 20, 2007, and instead included only the accompanying opinion with her petition for writ of review. Blackburn also failed to include a copy of the WCJ’s subsequent report and recommendation.
On or about November 28, 2007, FUSD petitioned the WCAB for reconsideration. FUSD contended the WCJ erred in finding an industrial psychological injury, arguing that Blackburn did not meet her burden of proof, that her psychiatric condition was partly due to the litigation process, that the surgery that resulted in deterioration of her psychiatric condition was not for weight loss, that the alleged psychiatric injury was not a compensable consequence of the industrial injury to the back, right knee, and left shoulder, and that the WCJ’s decision was not based on substantial evidence thereby requiring reopening the record. Blackburn did not file an Answer, but on February 19, 2008, the WCAB received a one-page letter objecting to FUSD’s petition. Noting the letter was unsigned, undated, and filed without proof of service, the WCAB disregarded the letter.
It also appears the letter was untimely as not filed within 10 days of the petition for reconsideration. (§ 5905.)
On March 11, 2008, the WCAB issued an opinion explaining the WCJ failed to refer to substantial evidence supporting the finding that Blackburn sustained an industrial psychiatric injury and erred by not considering the threshold requirements under section 3208.3 regarding psychological injuries. Affirming the WCJ’s other determinations, the WCAB amended the findings as to psychological injury and remanded the matter back to the WCJ. The WCAB instructed:
Section 3208.3, subdivision (b) provides:
“Upon return of this matter to the trial level, the WCJ should direct the parties to develop the record with additional medical evidence regarding whether applicant’s liposuction surgery was related to her industrial injury – specifically, whether weight loss was required to treat the industrial injury to her back, right knee, or left shoulder, and whether the surgery she underwent was for the purpose of weight loss. If substantial evidence demonstrates that the surgery was related to the industrial injury, additional evidence will be required to determine whether the psychiatric injury resulting from the surgery satisfies the threshold requirements of section 3208.3.”
DISCUSSION
Blackburn raises numerous complaints in her petition for writ of review, but does not explain to this court how the alleged errors relate to the WCAB’s determination. For example, she contends sports and medicine specialist, Dr. Mahendra Nath, provided false statements and mentions he was reprimanded for “medical neglect and sexual misconduct” in a “Physicians Quality Report,” but does not provide a copy of the report or specific evidence of the misstatements. Moreover, Dr. Nath’s opinion as to Blackburn’s physical injuries did not appear to factor into the WCAB’s determination that the record lacked substantial evidence of psychological injury.
Blackburn also states that the use of marijuana provides “a wide variety of therapeutic applications” and that she has an Oregon Medical Marijuana Program card prescribed by her physician, Dr. Harris, for pain and anxiety. However, she does not justify any relationship between such use and the WCAB’s findings.
Blackburn complains that FUSD improperly referred to materials in its petition for reconsideration before the WCAB that were “not used at trial, and subpoena[ed] after [the WCJ’s] decision was made on November 20, 2007.” Even assuming the veracity of Blackburn’s allegation, there is no indication from the WCAB’s opinion and decision after reconsideration that the WCAB relied on anything outside the record in making its determination.
Blackburn also disputes FUSD’s allegation in the petition for reconsideration that she did not tell the truth regarding a prescription for a gym membership from Dr. Nath. She contends FUSD sent a letter to the WCJ on the subject, which FUSD failed to produce despite her demand, and FUSD incorrectly addressed the issue in two paragraphs in their petition for reconsideration. The WCAB, however, did not make any adverse ruling relating to a gym membership.
Having failed to bring any of these issues to the attention of the WCAB on reconsideration, Blackburn has waived the issues before this court. (§ 5904; Cedillo v. Workmen’s Comp. Appeals Bd. (1971) 5 Cal.3d 450, 456; American Psychometric Consultants, Inc. v Workers’ Comp. Appeals Bd. (1995) 36 Cal.App.4th 1626, 1638.) Moreover, section 5900 authorizes an aggrieved party to file a petition for writ of review from a final order, decision, or award of the WCAB. “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.” (Maranian v. Workers’ Comp. Appeals Bd. (2000) 81 Cal.App.4th 1068, 1075.) Here, the only issue that had not been waived and that was addressed by the WCAB on reconsideration was whether Blackburn sustained a psychological injury arising out of and in the course of her employment with FUSD. On that question, the WCAB has yet to issue a final order, decision, or award. The WCAB instead remanded the matter for further proceedings to determine if Blackburn was entitled to workers’ compensation benefits related to her alleged psychological injury. By remanding the matter for further proceedings, the WCAB has yet to rule on the industrial nature of Blackburn’s psychological injury. (Cf. Safeway Stores Inc. v. Workers’ Comp. Appeals Bd. (1980) 104 Cal.App.3d 528 [finding of industrial injury is a threshold determination reviewable by appellate court].) Since Blackburn did not petition for reconsideration from the WCJ’s findings and award and all other issues were affirmed by the WCAB, there is no issue before this court to review.
Section 5900, subdivision (a) provides: “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. The petition shall be made only within the time and in the manner specified in this chapter.”
DISPOSITION
The petition for reconsideration is denied. This opinion is final forthwith as to this court.
“(1) In order to establish that a psychiatric injury is compensable, an employee shall demonstrate by a preponderance of the evidence that actual events of employment were predominant as to all causes combined of the psychiatric injury.
“(2) Notwithstanding paragraph (1), in the case of employees whose injuries resulted from being a victim of a violent act or from direct exposure to a significant violent act, the employee shall be required to demonstrate by a preponderance of the evidence that actual events of employment were a substantial cause of the injury.
“(3) For the purposes of this section, ‘substantial cause’ means at least 35 to 40 percent of the causation from all sources combined.”