Opinion
NOT TO BE PUBLISHED
WCAB No. FRE 244557
Mitchell & Powell and Darin L. Powell, for Petitioner.
No appearance by Respondent Workers’ Compensation Appeals Board.
Hanna, Brophy, MacLean, McAleer, & Jensen, LLP and Kathleen M. Talens for Respondent, State Farm Fire & Casualty Company.
OPINION
Before Levy, Acting P.J., Hill, J., Kane, J.
ORIGINAL PROCEEDINGS; petition for writ of review from a decision of the Workers’ Compensation Appeals Board. Alfonso J. Moresi, Frank M. Brass, and Gregory G. Aghazarian, Commissioners. Terry R. Menefee, Workers’ Compensation Administrative Law Judge.
On March 24, 2009, a workers’ compensation administrative law judge concluded Mark Rider sustained a cumulative trauma injury to his shoulders while working as a meat cutter for RHO Beta Corporation doing business as Bob’s Market (RHO Beta) in Tulare through the period ending August 16, 2004. The WCJ concluded the injury left Rider 29 percent permanently disabled and that, notwithstanding the opinion of qualified medical examiner Ernest Miller, M.D., suggesting 75 percent of the disability was preexisting, the record was insufficient to support apportioning the permanent disability award to non-industrial causes.
RHO Beta petitioned the WCAB for reconsideration, contending the WCJ should have apportioned 96 percent of Rider’s disability to nonindustrial factors. After reviewing the record, the WCAB issued an opinion and order explaining that Dr. Miller appeared to have confused the applicable legal standards between apportionment of permanent disability and apportionment of liability between multiple employers. (Lab. Code, §§ 4663, 5500.5.) Based on Dr. Miller’s reporting, the WCAB was convinced Rider possessed “some” level of pre-existing cumulative trauma that should have been apportioned, but that the reviewing physician lacked Rider’s complete and accurate employment, medical, and injury history. Although Dr. Miller had already produced six medical reports, the WCAB concluded “the record still is not clear” and remanded the matter to the WCJ for further development of the record.
Further statutory references are to the Labor Code unless otherwise stated.
Rider timely petitioned this court for a writ of review (§ 5950; Cal. Rules of Court, rule 8.495), contending RHO Beta failed to meet its burden of proving apportionment and that the WCAB acted in an impermissible and arbitrary manner by remanding the matter to the WCJ. We agree with respondents and conclude the writ is not yet reviewable by this court.
Section 5950 establishes the right to petition an appellate court for a writ of review. “Though on its face this statute would seem to cover without restriction any order of the WCAB, in fact only those orders, decisions and awards of the WCAB deemed to be final have been held to be within section 5950.” (Maranian v. Workers’ Comp. Appeals Bd. (2000) 81 Cal.App.4th 1068, 1074 (Maranian), citing Safeway Stores, Inc. v. Workers’ Comp. Appeals Bd. (1980) 104 Cal.App.3d 528, 534 (Safeway).) The restriction is derived from section 5900, which permits an aggrieved party only from petitioning the WCAB for reconsideration from a final order, decision, or award. (Ibid.)
Section 5950 provides: “Any person affected by an order, decision, or award of the appeals board may, within the time limit specified in this section, apply to the Supreme Court or to the court of appeal for the appellate district in which he resides, for a writ of review, for the purpose of inquiring into and determining the lawfulness of the original order, decision, or award or of the order, decision, or award following reconsideration. The application for writ of review must be made within 45 days after a petition for reconsideration is denied, or, if a petition is granted or reconsideration is had on the appeal board’s own motion, within 45 days after the filing of the order, decision, or award following reconsideration.”
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.”
Whether petitioning the WCAB under section 5900 or an appellate court under section 5950, a petition to the reviewing tribunal only lies from a decision that “conclusively determines, for purposes of the compensation proceeding, a substantive issue basic to the employee’s entitlement to benefits.” (Maranian, supra, 81 Cal.App.4th 1068, 1078.) A final order of the WCAB is not one which merely grants a petition for reconsideration, or that reopens proceedings, without affirmatively disposing of any of the issues involved. (Safeway, supra, 104 Cal.App.3d at p. 535.) As this court has noted, if the WCAB remands the matter to the WCJ for further proceedings to develop the record more fully, a petition for reconsideration will be denied as premature. (Maranian, supra, at p. 1079; see also 65A Cal.Jur.3d (2007) Work Injury Compensation, § 738, pp. 362-363.)
In the present case, Rider requests that this court review the WCAB’s order granting reconsideration and sending the matter back to the WCJ to obtain additional relevant evidence. On remand, Dr. Miller may further explain his apportionment assessment after obtaining Rider’s supplemental work and medical history, and the WCJ and WCAB will subsequently make a determination as to apportionment of the permanent disability award. The WCAB here issued an intermediate procedural order on an evidentiary matter that does not deprive the parties of any substantive rights and which fails to affirmatively dispose of any threshold issues in determining Rider’s entitlement to workers’ compensation benefits. Lacking a final order, decision, or award of the WCAB to review, the petition must be denied.
DISPOSITION
The petition for writ of review is denied. This opinion is final forthwith as to this court.