Opinion
NOT TO BE PUBLISHED
Super. Ct. No. SAC0323184
SIMS, Acting P.J.In this workers’ compensation proceeding, Dianne Fitzpatrick (applicant) and Seabright Insurance Company (Seabright) separately seek writ review of the actions taken by respondent Workers’ Compensation Appeals Board (WCAB). We consolidated the writ petitions on our own motion.
In case No. C055227, Seabright (defendant below) contends that the WCAB should have dismissed applicant’s petition for reconsideration of the amended findings and award by the workers’ compensation judge (WCJ) as untimely because it was filed more than 20 days after the WCJ’s original findings and award. We shall reject Seabright’s contention. Because the amended findings and award effected a substantial and material change to the award, they constituted a new award in effect. This award established the timeline for filing the petition, which applicant met.
In case No. C055399, applicant challenges the WCAB’s opinion and orders denying defendant’s petition for reconsideration, granting applicant’s petition in part, and decision after reconsideration. Applicant contends: (1) She is entitled to additional periods of temporary total disability (TTD) because Seabright denied her medical treatment, impeding and delaying her recovery. (2) The WCAB wrongly disregarded her expert witness’s testimony as to the rating of her permanent disability. (3) The WCAB’s apportionment to pre-existing osteopenia is not supported by substantial evidence. (4) Apportionment to an age- and gender-related condition is discriminatory in violation of law. (5) If the apportionment is valid, benefits should be calculated using the “Dykes/Nabors” formula. (E & J Gallo Winery v. Workers’ Comp. Appeals Bd. (2005) 134 Cal.App.4th 1536 (Dykes); Nabors v. Workers’ Comp. Appeals Bd. (2006) 140 Cal.App.4th 217 (Nabors).) We shall affirm the WCAB’s findings as to TTD and permanent disability, but reverse and remand for further proceedings as to apportionment and the calculation of benefits (including attorney’s fees).
FACTUAL AND PROCEDURAL BACKGROUND
Applicant’s injury and early treatment
On December 5, 2001, applicant, a 59-year-old teacher at Montessori of Placerville, was pulled to the floor by a student, which injured her upper and lower back, hips, and knees.
Dr. Christopher Molitor, an orthopedic surgeon, initially evaluated applicant on January 9, 2002. Throughout 2002 and into 2003, Dr. Molitor and other specialists evaluated and treated her.
On February 19, 2003, Dr. Molitor reported: Applicant had persistently complained of low back pain and radiating right leg pain. The back pain was now “intermittent to frequent” and “moderate,” the leg pain “slight to moderate” and “occasional to intermittent.” Despite pain management and physical therapy, applicant’s symptoms remained. Long sitting or standing in one position, repetitive or continuous bending, stooping, or twisting, and lifting more than 10 pounds all aggravated her symptoms. No potentially useful procedure which applicant was willing to consider was likely to change her condition significantly.
In January 2002, an MRI detected several vertebral fractures. Bone density studies revealed osteopenia in the lumbar spine. However, applicant denied any history of low lumbar problems or significant fractures.
Osteopenia means: “1. Decreased calcification or density of bone; a descriptive term applicable to all skeletal systems in which such a condition is noted; carries no implication about causality. 2. Reduced bone mass due to inadequate osteoid synthesis.” (Stedman’s Medical Dictionary (24th ed. 1982) p. 1004, col. 2.) It is apparently related to but not precisely synonymous with osteoporosis, a condition characterized by “[r]eduction in the quantity of bone or atrophy of skeletal tissue [which] occurs in post-menopausal women and elderly men[.]” (Ibid.)
Applicant also complained of urinary incontinence, but neither Dr. Molitor nor Dr. Stephen Mann, a spinal specialist whom applicant began to see in April 2002, could explain the source of this problem.
Both Dr. Mann and Dr. Thomas Pattison, a physical medicine and rehabilitation specialist who saw applicant in September 2002, thought she might benefit from vertebroplasty, “a procedure where a painful compression fracture is stabilized with a fairly minimally invasive procedure which involves insulation of a glue-like compound.” Because further determinations were still needed before the procedure could be done, Dr. Pattison thought it “could always be put in as a future medical.” However, Dr. Molitor, Dr. Mann, and Dr. Pattison concluded that applicant did not want any invasive procedures.
Dr. Molitor’s report indicated that Dr. Pattison had recommended that applicant consider “kyphoplasty,” but that she “was unwilling to do that.”
Dr. Molitor opined that applicant was permanent and stationary as of November 5, 2002. Her condition would restrict her to semi-sedentary work in future. There were grounds for apportioning her current disability 50 percent to her industrial injury and 50 percent to her preexisting condition.
Further events in 2003
On April 1, 2003, applicant informed defendant that she was designating Dr. Praveen Prasad, a neurosurgeon, as her primary treating physician. On August 26, 2003, defendant’s claims adjuster authorized Dr. Prasad to treat applicant, but only as recommended by Dr. Molitor (i.e., to monitor a “home[-]based, self[-]monitored exercise program”).
On September 2, 2003, Dr. Prasad informed defendant that he could not accept applicant as a patient because defendant’s “authorization” excluded the procedures he would want to perform (vertebroplasty or kyphoplasty).
Applicant requested an expedited WCAB hearing to obtain an order that defendant authorize treatment in accordance with Dr. Prasad’s recommendations. A WCJ conducted the hearing on December 12, 2003. Applicant testified, and medical reports and correspondence were submitted as exhibits. Applicant stated (contrary to Drs. Molitor, Mann, and Pattison) that she had not refused vertebroplasty.
The WCJ issued findings of fact and award in favor of applicant. Finding in his opinion on decision that defendant’s delay in authorizing Dr. Prasad’s treatment and attempt to limit that treatment had no legal basis, the WCJ ordered defendant to authorize further treatment “including, but not limited to, specific surgical treatment which her designated primary treating physician may choose to provide[.]”
Treatment in 2004 and 2005
Applicant did not return to Dr. Prasad. Instead, on April 1, 2004, she saw Dr. Mark King, a rehabilitation specialist.
The record does not explain why applicant did not see Dr. King until almost four months after winning the December 2003 award.
Dr. King reported that applicant suffered from thoracalgia (chest pain), lumbalgia (lower back pain) with history of compression fracture, and lumbar radiculopathy (disease of the spinal nerve roots). Applicant’s mid- and lower back pain was constant; on an intensity scale of 1 to 10, it rated 9. She also suffered sharp pain down the right leg, alternating with numbness.
Dr. King opined that applicant could not return to her usual occupation and noted that TTD had been extended through June 20, 2004. He prescribed housekeeping services, aquatic therapy, and physical therapy.
On June 30, 2004, pursuant to the parties’ stipulation, the WCJ ordered defendant to authorize treatment in accordance with Dr. King’s opinion.
Dr. King continued to treat applicant through 2004 and into 2005. On June 21, 2005, he referred her to Dr. Philip Orisek, a spinal surgeon, for a possible vertebroplasty.
On August 8, 2005, Dr. Orisek reported that vertebroplasty would no longer be useful because applicant’s fractured vertebrae had healed. However, her back and lower right leg pain remained constant, severe, and disabling. Her urinary incontinence also remained, but did not appear to derive from her spinal problems.
Evaluations by Qualified Medical Examiners (Q.M.E.)
Dr. Roback
On September 30, 2004, Dr. Michael Roback, an orthopedist and Q.M.E. retained by applicant, submitted his evaluation, including a review of the medical records to date. Dr. Roback opined:
Applicant suffered from “[c]hronic, symptomatic, posttraumatic injury of the thoracolumbar spine with T10, T12, and L1 compression fractures (superimposed on pre-existing asymptomatic, spinal osteopenia)”; “[c]hronic, symptomatic, posttraumatic injury of the lumbar spine with lower lumbar musculotendino-ligamentous involvement and right posterior joint damage and suggestions of slight intervertebral disc deformity and L4 and L5 compression fractures associated with a left L5 and S1 radiculopathy on EMG/NCS (superimposed on a pre-existing asymptomatic spinal osteopenia and spondylosis)”; “[h]istory of a secondary urological complication[] from the spinal injury (prior evaluation)”; “[h]istory of emotional problems (requiring evaluation)”; and “[h]istory of resolved right shoulder and cervical injury[.]”
Applicant’s symptoms and disability were entirely caused by her industrial injury. Dr. Molitor’s proposed 50 percent apportionment to “underlying osteoporosis” was inconsistent not only with workers’ compensation rules but also with applicant’s medical history: prior accidents in 1999 had produced no thoracic or lumbar injury or fractures.
Applicant’s condition was permanent and stationary as of August 27, 2004.
Applicant’s back condition alone (without regard to her urinary problem or “secondary psychiatric injury”) limited her work capacity to “between semisedentary and sedentary,” with further restrictions to allow for frequent changes of position, ergonomic seating, a reduced walking pace, and avoidance of unyielding surfaces or uneven ground.
Applicant was totally and permanently disabled for her previous job and would be eligible for vocational rehabilitation.
Future medical care should include therapy and medication for maintenance purposes. It could not be expected to reduce applicant’s disability, but only to control her symptoms and prevent further deterioration.
Dr. Renbaum
On January 28, 2005, Dr. Joel Renbaum, an orthopedist and Q.M.E. retained by defendant, submitted an evaluation and review of medical records. Dr. Renbaum opined:
Applicant suffered from “[m]ultilevel degenerative disc disease, thoracic and lumbar spine, with compression fracture T12-L1, L4-5 and right radiculopathy” and “[o]steopenia/osteoporosis of spine.”
Applicant’s condition was permanent and stationary as of November 2002. Her disability “preclud[ed] heavy work.” Vocational rehabilitation was indicated.
Future medical treatment should include an ongoing exercise program, occasional orthopedist visits, brief periods of physical therapy, anti-inflammatory medications, and possible epidural injections. Surgery (which applicant had previously declined) was not indicated.
Because the multilevel defects in applicant’s spine “clearly pre-existed the work injury,” her disability should be apportioned 35 percent to the preexisting conditions and 65 percent to her industrial injury.
Dr. Roback’s second report
On July 24, 2005, Dr. Roback submitted a “record review/supplemental report.” Dr. Roback called Dr. Renbaum’s evaluation “incomplete” and his conclusions “invalid.” Citing Dr. King’s referral to Dr. Orisek for vertebroplasty, Dr. Roback opined that if it were done, applicant would remain temporarily totally disabled until completing rehabilitation; thus, all prior “permanent and stationary” ratings would be invalid. Dr. Roback further stated: “I have also reviewed my conclusions with research concerning the Escobedo Decision. Based on that Escobedo Decision, I believe that there should be some apportionment to what is probably [applicant’s] preexisting osteopenia. Based on this understanding, please note the following apportionment: 1) 90% of her permanent back disability is the direct result of [the] 12/5/01 work accident and 2) 10% of her permanent back disability is the direct result of preexisting osteopenia.”
Dr. Orisek had not yet given his opinion that the healing of applicant’s fractures took vertebroplasty off the table.
Escobedo v. Marshalls (2005) 70 Cal.Comp. Cases 604 (Escobedo). As explained further in the Discussion, Escobedo is the leading WCAB decision on apportionment under Labor Code section 4663. (Undesignated statutory references are to the Labor Code.)
The April 2006 hearing
On July 11, 2005, relying on Dr. Renbaum’s report, defendant requested a hearing on multiple issues. The hearing took place on April 10, 2006.
The parties stipulated that applicant sustained an industrial injury on December 5, 2001, that she had earned $480 per week, and that defendant had paid and continued to pay benefits of $170 per week. The issues were defined as: temporary disability indemnity for December 5, 2001, to January 15, 2005; permanent and stationary date (applicant claiming January 15, 2005, based on Dr. King’s opinion, and defendant claiming November 5, 2002, based on Dr. Renbaum’s opinion); permanent disability; apportionment; need for further medical treatment; and attorney’s fees. The WCJ received medical reports, including those of Drs. Roback and Renbaum, as exhibits.
Despite this agreed statement of the issues, it is not clear from the record when Dr. King opined that applicant’s condition became permanent and stationary as of January 15, 2005. Applicant asserts in her writ petition that he did so, but gives no supporting record citation.
Applicant testified: Her urinary incontinence, which caused great inconvenience and embarrassment, would rule out a full-time desk job. Her back symptoms were “absolutely brutal.” She had never refused back surgery. The numbness in her leg necessitated a walker, which she had paid for, as well as various forms of therapy. Her life was “pretty sedentary”: she could not do much in the way of chores or social life. Her pain had worsened since she stopped aquatic therapy, which was not authorized; housekeeping assistance, recommended by Dr. King, had also not been approved. Dr. Renbaum had given her a 15-minute physical exam; Dr. Roback’s had taken 45 minutes to an hour. She is a light smoker; Dr. King would like her to stop, as it leads to osteoporosis.
Applicant’s son testified that he had gone with her to see Dr. Renbaum. Apparently reading from a document, Dr. Renbaum asked numerous questions about her prior history and her injury; some misstated the facts. He admitted he got this information from defense counsel. Applicant could not complete most of the tasks on his “quick” physical exam.
Applicant’s son also testified that applicant had lost much mobility, could not stand for long, could not bend, could not drive far, had difficulty shopping, and was obviously in pain.
The WCJ’s permanent disability rating
After the hearing, the WCJ requested a permanent disability rating, generally using Dr. Roback’s proposed “factors of disability” (limitation of work to “semisedentary [to] sedentary” with additional restrictions, plus 10 percent apportionment to factors other than the industrial injury). Disability evaluator Kathy Patterson rated applicant’s permanent disability at 68 percent, amounting to 410.25 weeks of disability payments at $170 per week. The WCJ adopted this rating on June 1, 2006.
Applicant’s objection
On June 8, 2006, applicant filed an objection to the WCJ’s rating instruction and a motion to strike and/or supplement the instruction, present rebuttal evidence by a vocational rehabilitation expert, and cross-examine the disability rater.
Trial on applicant’s objection
On October 10, 2006, the WCJ conducted a trial on applicant’s objection and motion, taking testimony from disability rater Patterson and vocational rehabilitation expert Daniel Sidhu.
Patterson testified:
She used no documents other than the rating manual and the WCJ’s instructions. The manual does not rate limitations “between” sedentary and semi-sedentary work. The main difference between these levels is that sedentary work presumes a 75 percent loss of weight-bearing capacity, while semi-sedentary work presumes a 50 percent loss. The WCJ had instructed Patterson to determine a rating based on limitation to light work (total or near-total loss of lifting capacity, plus other restrictions) and two-thirds weight-bearing capacity.
The need for work which allows frequent changes of position is not a scheduled activity (i.e., not shown on the rating schedule); however, raters statewide agree that it increases the rating 5 percent. (“Frequent” means around 75 percent of the time, which translates as a work restriction into a 25 percent loss.) The need for an ergonomically adjusted work area did not change the rating because raters are not trained to rate reasonable accommodations. Patterson was not sure what “the inability to be on an unyielding surface” meant, but the other limitations she was asked to consider accounted for standing capacity.
Sidhu testified:
As a vocational rehabilitation counselor, he determines a person’s work capacity by starting with her work history, including “worker traits determined by the Dictionary of Occupational Titles (D.O.T.).” Using applicant’s worker traits and skills, he compared her pre- and post-injury capacity to access the labor market. From the rating instructions alone, it appeared that she has lost 96.7 to 97.5 percent of this capacity.
Considering only applicant’s job training and the limitation to sedentary work, 40 occupational titles were open to her, which equaled 32.5 percent of her pre-injury labor market access. But when one also considered the rating instructions’ specific limiting factors and new employers’ unwillingness to make accommodations, applicant’s labor market access shrank to 3.3 percent.
Applicant’s limitations could be accommodated only in jobs such as “billing, medical transcription, [and] clerical functions from her home or by phone[.]” Three years ago applicant had attempted retraining to perform clerical work at home, but could not complete it. Thus, she really had no present access to the labor market. Furthermore, her urinary incontinence (which Sidhu had not been asked to consider) would take away most jobs that might otherwise have been possibilities for retraining.
The WCJ’s original Findings and Award and Opinion on Decision
On December 5, 2006, the WCJ issued his findings and award and opinion on decision.
The findings of fact included: “Applicant was totally temporarily disabled from January 7, 2002, through November 5, 2005 and April 1, 2004, through August 27, 2004” (italics added); and “[t]his injury caused permanent disability of 68 [percent].”
The award gave applicant temporary disability indemnity at the rate of $320 per week with credit for payment made, less attorney’s fees of $815; permanent disability indemnity “commencing December 2, 2002, through March 31, 2004, and recommencing August 28, 2004,” at $170 per week for 410.25 weeks, with credit for payment made, less $10,460 in attorney’s fees; further treatment; and reimbursement of costs.
The opinion on decision explained:
Applicant claimed temporary disability indemnity from December 5, 2001, through January 15, 2005, when, according to her, she became permanent and stationary. But defendant was correct in asserting that she actually became permanent and stationary by November 2002, as Drs. Renbaum and Molitor opined; thus, temporary disability ended at that time. However, Dr. King’s report of April 1, 2004, showed that defendant then reinstated temporary disability, and Dr. Roback opined that this condition lasted until August 27, 2004; therefore, temporary disability was also awarded for that period.
Dr. Roback had most accurately assessed applicant’s level of permanent disability and apportionment to factors other than industrial injury (i.e., 10 percent to preexisting osteopenia). Dr. Renbaum had understated her permanent disability, and his apportionment ignored Dr. Molitor’s attempts to establish whether her injury caused her vertebral fractures.
Applying the rating instructions, which were based on Dr. Roback’s opinion, the disability evaluator found a permanent disability level of 76 percent before apportionment. This rating had been adopted despite Sidhu’s rebuttal testimony, because: (1) The rating schedule is prima facie evidence of the level of permanent disability to attribute to covered injuries; without it, each case might need expert testimony and ratings for identical injuries could vary widely. (2) Though vocational rehabilitation experts may testify on permanent disability, the cases do not explain how to use such testimony. (3) Sidhu apparently had not used the same “metrics” as the schedule, which does not consider individual factors other than the disability in question, age, and occupation. To introduce other factors might cause arbitrary variation among cases. (4) Even if Sidhu’s evidence might support a deviation from the schedule, there was no apparent method to calculate the deviation.
Defendant’s “request for clarification”
On December 14, 2006, defendant suggested that the correct date of termination for the first period of TTD was November 5, 2002, not November 5, 2005.
The Amended Findings and Award
On December 26, 2006, the WCJ issued amended findings and award which made defendant’s proposed correction.
Defendant nevertheless filed a petition for reconsideration formally requesting the same correction. The WCAB denied this petition when it issued its final opinion and decision.
Applicant’s petition for Reconsideration
On January 19, 2007, applicant filed a petition for reconsideration of “the Findings and Award dated December 26, 2006,” raising all grounds now urged in this court.
Defendant asserted that the petition was untimely except as to TTD: section 5903 requires reconsideration petitions to be filed within 20 days after service of a final workers’ compensation award, applicant had missed the deadline as to the original findings and award, and the amended findings and award changed only the TTD finding.
The WCJ’s Report and Recommendation
On February 8, 2007, the WCJ filed his report and recommendation to the WCAB on applicant’s petition. After explaining that the amended findings and award corrected the error noted by defendant, the WCJ concluded:
1. The time for filing the petition ran from the amended findings and award. The petition was therefore timely.
2. Applicant was not entitled to TTD continuously from December 5, 2001, through January 15, 2005, as she claimed: because she declined surgery in 2002, her condition became permanent and stationary as of November 5, 2002 (until she reconsidered the possibility of surgery), and Dr. Roback had reasonably found that it became permanent and stationary again as of August 27, 2004. However, she was entitled to a year of TTD not reflected in the findings and award: from April 1, 2003, when she advised defendant that Dr. Prasad was her new treating physician, to April 1 or 4, 2004, when defendant reinstated TTD benefits after having wrongly withheld them. The WCAB should amend the TTD finding and award accordingly.
The WCJ’s report gives both April 1, 2004, and April 4, 2004, as the date on which defendant reinstated benefits.
3. Case law holds that a vocational rehabilitation expert trying to rebut a permanent disability rating should use the same metrics as the rating schedule, then show why and how the schedule produces an incorrect or unconvincing result. Because applicant’s expert did not do this, he provided no grounds to reject the disability evaluator’s rating.
4. Applicant had also shown no grounds to reject the apportionment of 10 percent of her permanent disability to her preexisting osteopenia.
5. Applicant’s contention that permanent disability indemnity should be calculated by the “Dykes/Nabors” formula should be deferred until the California Supreme Court had decided pending cases which raised the same issue.
The WCAB’s Opinion and Orders and Decision after Reconsideration
On February 26, 2007, the WCAB issued its opinion and orders denying defendant’s petition for reconsideration, granting applicant’s petition for reconsideration in part, and decision after reconsideration, which adopted the WCJ’s recommendations in full.
The orders affirmed the amended findings and award with the following amendments:
Finding of fact number 2 was amended to read: “Applicant was totally temporarily disabled from January 7, 2002 through November 5, 2002, and from April 1, 2003 through August 27, 2004.”
Finding of fact number 3 was amended to read: “Applicant sustained permanent disability of 76 [percent]. There is apportionment of 10 [percent] of that disability to other factors pursuant to [] section 4663. Calculation of permanent disability after apportionment is deferred per Erickson v. Southern California Permanente Medical Group (2006) 72 Cal.Comp. Cases 103 [Significant Panel Decision], jurisdiction reserved.”
Finding of fact number 5 was amended to read: “The issue of attorneys’ fees is deferred pending calculation of permanent disability after apportionment, jurisdiction reserved.”
Part B of the award was amended to read: “Calculation of permanent disability indemnity, as well as attorney’s fees, is deferred pending the Supreme Court’s resolution of the issue of how permanent disability indemnity after apportionment must be calculated, jurisdiction reserved.”
DISCUSSION
I
Defendant’s writ petition (C055227)
In case No. C055227, defendant seeks review of the WCAB’s decision that applicant’s petition for reconsideration of the WCJ’s amended findings and award was timely. We shall affirm the decision in this respect.
Section 5903 stipulates that a petition for reconsideration must be filed within 20 days of service of the WCJ’s award. Section 10858 of title 8 of the California Code of Regulations states that “[b]efore a petition for reconsideration is filed, a workers’ compensation judge may correct the decision for clerical, mathematical, or procedural error or amend the decision for good cause . . . .” However, the regulation does not specify whether an amendment to the award begins a new 20-day period for filing a petition for reconsideration. Applicant’s petition for reconsideration was filed more than 20 days from the date of the WCJ’s original findings and award dated December 5, 2006, but within 20 days of the amended findings and award dated December 26, 2006.
Section 5903 provides in part: “At any time within 20 days after the service of any final order, decision or award made and filed by the appeals board or a workers’ compensation judge granting or denying compensation . . . any person aggrieved thereby may petition for reconsideration . . .: [¶] . . . [¶] [t]hat by the order, decision, or award made and filed by the appeals board or the workers’ compensation judge, the appeals board acted without or in excess of its powers.”
Nestle Ice Cream Co., LLC v. Workers’ Comp. Appeals Bd. (2007) 146 Cal.App.4th 1104, states that “Board panels faced with amendments made by a WCJ before a petition for reconsideration is filed have calculated the 20-day period to run from the date of the original order when the amendment is merely ‘clerical.’” (Id. at p. 1109) In Nestle Ice Cream, the Court of Appeal for the First Appellate District annulled a WCAB decision that dismissed as untimely a petition for reconsideration that was filed within 20 days of an amended award. The amended award changed the names of the parties, which had been incorrectly stated on the original award, as well as increased the amount awarded. Nestle held that the WCJ’s amendment effected a substantial and material change in the award and amounted to a judicial act. (Id. at p. 1106) As Nestle noted, “an amendment correcting the name of the losing party was not merely clerical . . . we cannot imagine a more substantial or material change in the form of a judgment than in the identity of the losing party . . . .” (Id. at p. 1110) In addition, “[p]ayment of benefits at a higher rate constituted a substantial and material change in the award.” (Ibid.) The Nestle court concluded the motion for reconsideration was timely because it was filed within 20 days of the amended award. (Id. at p. 1111) We reach the same conclusion here.
It is also helpful to analogize to civil judgments, where the period for filing a notice of appeal is not extended by an amendment that corrects a clerical error, but it is extended by an amendment that effects a substantial or material change or involves judicial discretion. (Nestle Ice Cream, supra, 146 Cal.App.4th at 1109, citing Stone v. Regents of University of California (1999) 77 Cal.App.4th 736, 743-44)
“The effect of an amended judgment on the appeal time period depends on whether the amendment substantially changes the judgment or, instead, simply corrects a clerical error: . . . When the trial court amends a nonfinal judgment in a manner amounting to a substantial modification of the judgment . . . the amended judgment supersedes the original and becomes the appealable judgment. . . . Therefore, a new appeal period starts to run from notice of entry or entry of the amended judgment. . . . On the other hand, if the amendment merely corrects a clerical error and does not involve the exercise of judicial discretion, the original judgment remains effective as the only appealable final judgment; the amendment does not operate as a new judgment from which an appeal may be taken.” (Nestle Ice Cream, supra, 146 Cal.App.4th at pp. 1109-1110, citing CC-California Plaza Associates v. Paller & Goldstein (1996) 51 Cal.App.4th 1042, 1048)
Therefore, the timeliness of applicant’s petition depends on the nature of the amendment to the award. If the amendment is determined to result from clerical error, a petition for reconsideration must be filed within 20 days of the original findings and award. However, if the amendment is determined to constitute a substantial or material change in the judgment, then the petition for reconsideration must be filed within 20 days of the amended findings and award.
II
In this case, the amendment was a change in year on the termination date of temporary disability indemnity from 2005 to 2002. The amended date of temporary disability indemnity constituted a substantial and material change in the amount of the award. In the original award, applicant was entitled to about $67,720 in temporary disability payments. After the WCJ amended the award pursuant to a letter from the defendant requesting “some clarification” as to the dates, applicant was entitled to only about $29,440 in temporary disability payments. The amended award gave applicant about $38,000 less in temporary disability payments. This change is a severe reduction in the amount of the award that applicant had expected to receive.
Just as Nestle Ice Cream, supra, 146 Cal.App.4th 1104, found that “[p]ayment of benefits at a higher rate constituted a substantial and material change in the award,” so too does a drastic reduction in weeks paid. (Id. at p. 1110) Applicant contends in her answer to petition for writ of review that the change was material and substantial because a change in dates necessarily results in a significant reduction of disability payments to applicant. We agree. As Nestle Ice Cream, supra, 146 Cal.App.4th 1104, states, “The issue is whether the amendment was of sufficient import that it superseded the original award. In this case it did, and the time for filing a petition for reconsideration ran from the time of the amended award.” (Id. at p. 1111)
III
Defendant also contends that once the amended findings and award was issued, applicant was entitled to file a petition for reconsideration on the amended temporary disability period only. Defendant argues, “Applicant waived any objections they may have had to the original Findings and Award issued December 5, 2006 when they failed to file a petition for reconsideration within required filing deadline . . . .” Under this theory, applicant was to file two petitions for reconsideration: one that discussed only the issue of the period of temporary disability to be filed within 20 days of the amended findings and award, and the other that addressed all other issues, to be filed within 20 days of the original findings and award. This argument finds no support. Nothing in the Workers’ Compensation statutes or regulations allows an applicant to file two motions for reconsideration in a case. Nor do the statutes or regulations limit the issues that may be tendered in a timely motion for reconsideration. Defendants’ argument is not well taken.
IV
Applicant requests that we remand for the purpose of awarding attorney’s fees in connection with the petition for writ of review in accordance with section 5801, which provides that “[i]n the event the injured employee . . . prevails in any petition by the employer for a writ of review from an award of the appeals board and the reviewing court finds there is no reasonable basis for the petition, it shall remand the cause to the appeals board for the purpose of making a supplemental award awarding to the injured employee or his attorney . . . a reasonable attorney’s fee . . . .”
Viewing this case as a whole, we find there was a reasonable basis for the petition for writ of review. “Attorneys’ fees are not . . . automatically awarded simply because an appellate court affirms the WCAB’s decision.” (Crown Appliance v. Workers’ Comp. Appeals Bd. (2004) 115 Cal.App.4th 620, 627)
V
Applicant’s writ petition (C055399)
In case No. C055399, applicant seeks review of the WCAB’s decision in all other respects. She contends: (1) She is entitled to additional periods of TTD because defendant wrongly denied her medical treatment, impeding and delaying her recovery. (2) The WCAB wrongly rejected her expert witness’s testimony rebutting the permanent disability rating. (3) The apportionment to preexisting osteopenia is not supported by substantial evidence. (4) Apportionment to preexisting osteopenia violates the principle that the employer take the injured worker as it finds her and improperly assigns fault to the injured worker. (5) Apportionment based on an age- and gender-related condition is unlawful discrimination. (6) If apportionment is valid, the Dykes/Nabors formula should be used to calculate it. We shall reject her first two contentions, but remand for further proceedings as to apportionment.
VI
Applicant contends that the WCAB erred by failing to award her TTD from December 5, 2001, to “at least January 15, 2005, when Dr. King found her permanent and stationary, if not until August 8, 2005, when Dr. Orisek specifically ruled out spine surgery.” We disagree.
Applicant’s claim as to August 8, 2005, is not cognizable because she never claimed that date or presented any argument to support it below. She may not raise a new factual contention for the first time in this court. (Bogacki v. Board of Supervisors (1971) 5 Cal.3d 771, 780.) Therefore we consider only the terminal date she claimed below: January 15, 2005.
In reviewing the Board’s decision, we must determine whether in view of the entire record substantial evidence supports the Board’s findings. (Braewood Convalescent Hospital v. Workers’ Comp. Appeals Bd. (1983) 34 Cal.3d 159, 164; State Comp. Ins. Fund v. Workers’ Comp. Appeals Bd. (2007) 146 Cal.App.4th 1311, 1315.) We conclude that it does so.
According to applicant, she was entitled to TTD from the date of injury through January 15, 2005, because only defendant’s wrongful refusal to authorize treatment kept her from obtaining surgery by the latter date, when it still might have been medically useful. The record belies this contention.
First, it was not defendant’s conduct but applicant’s conduct which ruled out surgery during 2002. Second, defendant wrongfully refused to authorize surgery only from April to December of 2003. Third, despite the WCJ’s December 2003 order that defendant authorize surgery if medically recommended, applicant did not thereafter designate a surgeon as her treating physician. Fourth, Dr. King, her primary physician from April 2004 on, did not refer her to a surgeon until June 2005. Fifth, the date when surgery became useless because applicant’s fractures had healed is unknown.
In adopting the amended findings and award, the Board endorsed the WCJ’s conclusion, based on the reports of Drs. Molitor, Mann, and Pattison, that applicant refused to consider any invasive procedures in 2002. The WCJ and the Board evidently found applicant’s contrary testimony, on which she now relies, not credible. We may not reweigh those findings.
Applicant asserts without record citation: “The carrier ignored the opinion of Dr. Pattison, who recommended surgical intervention.” This assertion is false. In Dr. Pattison’s report of September 23, 2002, discussing vertebroplasty, he observed that applicant did not seem interested; he also noted that he had nothing to suggest other than what Dr. Mann had proposed. Dr. Mann had notified defendant on July 25, 2002: “In view of the fact that the patient does not want any invasive treatment, I do not know what else to offer her at this point.” Defendant did not “ignore” any recommendation for surgery which applicant was then willing to consider.
Because applicant refused to consider surgery -- the only medical procedure which appeared to provide hope of improvement -- through November 2002, Dr. Molitor’s conclusion at that time that her condition had become permanent and stationary, ending her entitlement to TTD payments, logically followed. Temporary disability indemnity ceases once an injured employee’s condition reaches a point beyond which no further improvement can be expected. (§§ 4650, 4653-4658; Gamble v. Workers’ Comp. Appeals Bd. (2006) 143 Cal.App.4th 71, 79-80.)
However, by reopening the possibility of surgery in April 2003, when she designated Dr. Prasad as her primary treating physician, applicant reopened the possibility of improvement. From this point until December 2003, when the WCJ ordered defendant to authorize treatment according to Dr. Prasad’s recommendations, defendant’s wrongful refusal to do so entitled her to renewed TTD payments. After that, even though applicant did not continue to pursue surgery, her treatment with Dr. King entitled her to further TTD payments until August 27, 2004, when Dr. Roback opined that her condition had once more become permanent and stationary.
The opinion of a single physician can suffice to support the WCAB’s factual determinations. (Smith v. Workmen’s Comp. Appeals Bd. (1969) 71 Cal.2d 588, 592.) The WCAB relied on Dr. Roback’s opinion that applicant’s condition once more became permanent and stationary as of August 27, 2004. Applicant fails to show that this reliance was unreasonable, and her speculation that surgery might have benefited her beyond that date is not cognizable. Thus, the WCAB’s terminal date of August 27, 2004, must be upheld.
Applicant has not shown grounds for reversal on this issue.
VII
Applicant contends that the WCAB erred as to her permanent disability rating by rejecting the rebuttal testimony of her expert. We are not persuaded.
Applicant’s contention amounts to a substantial-evidence argument in disguise: i.e., applicant asserts in effect that the disability evaluator’s rating, which the WCAB accepted, is not supported by substantial evidence because applicant’s expert disagreed with it. But applicant makes only one point which addresses the evaluator’s rating, and that point does not go to the strength of the evidence in its support.
Applicant asserts without citing to the record that the rating instructions “called for opinion outside the schedule” on one issue, which, in applicant’s hyperbolic formulation, produced “an unscheduled rating.” Applicant then complains in a footnote that the evaluator’s use of “the unpublished consensus of state-wide raters” to assign a value on this single issue amounts to adopting an underground regulation. Arguments raised in footnotes without headings or subheadings are forfeited. (Cal. Rules of Court, rule 8.204(a)(1)(B); Opdyk v. California Horse Racing Bd. (1995) 34 Cal.App.4th 1826, 1830-1831, fn. 4.) In any event, applicant does not explain why an opinion based on the collective expertise of the state’s raters cannot constitute substantial evidence, or how the evaluator’s use of their consensus on this issue to increase applicant’s permanent disability rating by 5 percent caused her prejudice.
As noted above, evaluator Patterson testified that the rating instructions included the request to consider the limitation -- specified by Dr. Roback, on whose opinion applicant relied -- “need for work which allows frequent changes of position.” Patterson stated that this specific factor is not covered by the rating schedule, but raters statewide agree that it increases a permanent disability rating by 5 percent.
For the rest, applicant merely asserts that her expert’s reasoning was sounder than the evaluator’s reasoning and therefore should have been preferred by the WCAB. However, appellant fails to cite any authority that supports her expert’s specific methodology or explains how it can be reconciled with the rating schedule. We conclude that applicant has not shown any basis for rejecting the WCAB’s reliance on the evaluator’s rating.
Applicant cites four cases, but without citation to any specific page or quotation of any specific passage. Such a method amounts to no citation at all, as we are left to guess where in the cited cases applicant purports to find supporting authority.
VIII
Applicant contends that the apportionment of her permanent disability under sections 4663 and 4664 is not supported by substantial evidence. Applicant is correct.
Section 4663 provides in part:
“(a) Apportionment of permanent disability shall be based on causation.
“(b) Any physician who prepares a report addressing the issue of permanent disability due to a claimed industrial injury shall in that report address the issue of causation of the disability.
“(c) In order for a physician’s report to be considered complete on the issue of permanent disability, the report must include an apportionment determination. A physician shall 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[.]”
Section 4664 provides in part: “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.”
“[T]he mere fact that a [doctor’s] 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 can 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.]” (Escobedo, supra, 70 Cal.Comp. Cases at pp. 620-621; accord, Andersen v. Workers’ Comp. Appeals Bd. (2007) 149 Cal.App.4th 1369, 1381-1382.)
The WCAB adopted Dr. Roback’s second proposal: to apportion 10 percent of applicant’s permanent disability to her preexisting osteopenia. However, Dr. Roback failed to explain the medical reasoning behind that proposal or to couch his opinion in terms of reasonable medical probability.
In Dr. Roback’s first report, he rejected apportionment, opining that applicant’s industrial injury was 100 percent responsible for her disability. In his second report, he did not give any medical reason for reaching a different conclusion: he merely stated that he had reviewed Escobedo and adjudged that it required apportionment, then threw out the 10 percent figure without analysis. This unexplained and unsupported conclusion, which was the entire basis for the WCAB’s determination on this issue, does not constitute substantial evidence. The WCAB’s apportionment must therefore be vacated.
IX
Applicant raises two further claims of error as to apportionment: (1) “apportionment to osteopenia violates the principle that the employer take the injured worker as it finds her and improperly assigns fault to the injured worker,” and (2) “apportionment to risk factors of age[-] and gender-related conditions are discriminatory and violate California and federal law.” (Capitalization omitted.) Because the WCAB might determine on remand that apportionment is unwarranted, we need not reach these claims.
We note, however, that applicant’s claim of unlawful discrimination, as presently briefed, fails at the threshold because applicant fails to support her premise that osteopenia is age- and gender-related with record citation, authority, or a request for judicial notice. Therefore the question whether apportionment based on a clearly age- or gender-related condition would unlawfully discriminate is not before us.
X
Applicant contends that, if apportionment is proper, the WCAB should calculate her permanent disability indemnity according to the Dykes/Nabors apportionment formula, which favors injured employees more than that used before the 1994 amendments to the Workers’ Compensation Act. (Nabors, supra, 140 Cal.App.4th at p. 228; Dykes, supra, 134 Cal.App.4th at pp. 1548-1550.) The WCAB deferred this issue because it was then pending before our Supreme Court. Unfortunately for applicant, the high court has now held, contrary to Dykes and Nabors, that the amendments to the Act did not change the apportionment formula. (Brodie v. Workers’ Comp. Appeals Bd. (2007) 40 Cal.4th 1313, 1320-1332 (Brodie) [disapproving Dykes and Nabors].)
On remand, if the WCAB determines that apportionment is warranted, it is directed to calculate apportionment consistently with Brodie, supra, 40 Cal.4th 1313.
DISPOSITION
As to temporary disability and the rating of applicant’s permanent disability, the WCAB’s decision is affirmed; as to apportionment, it is vacated and the matter is remanded for further proceedings in light of this opinion. The parties shall bear their own costs. (Cal. Rules of Court, rule 8.490(m)(2).)
We concur: MORRISON, J., CANTIL-SAKAUYE, J.
Kyphoplasty is “[a] method of treating compression fractures of the vertebrae [in which a] surgical instrument is inserted into the body of the vertebra in order to elevate or expand it [and] the space created is then filled with an acrylic bone cement.” (3 Attorneys’ Dictionary of Medicine (2007) p. K-53.) Nothing in the record explains exactly how kyphoplasty differs from vertebroplasty.
In any event, applicant asserts only that these cases say the kind of evidence used by her expert “is appropriate and embraced by the California Supreme Court.” Applicant does not assert that the cited cases endorse her expert’s specific methodology, as he explained it in his testimony.