Opinion
NOT TO BE PUBLISHED
WCAB No. RDG119164
RAYE, J.Petitioner Daphanie Burnham, a dispatcher for respondent City of Chico (City), sustained injuries to her upper extremities resulting from cumulative trauma ending April 20, 2004. By chance, the permanent disability rating schedule (new disability schedule) adopted by the Administrative Director of the Division of Workers’ Compensation became effective April 19, 2004. (Lab. Code, § 4660, as amended by Stats. 2004, ch. 34, § 32.) The convergence of these two dates led to a labyrinth of litigation, culminating in multiple decisions by the Workers’ Compensation Appeals Board (WCAB). Ultimately the WCAB determined the new disability schedule applied and found Burnham had no permanent disability. Burnham appeals, contending the WCAB lacked authority to grant the City’s second petition for reconsideration and erred in interpreting the statute implementing the new disability schedule. We issued a writ of review. We shall now affirm the order of the WCAB.
All further statutory references are to the Labor Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
We must determine whether the new disability schedule effective April 19, 2004, applies to Burnham’s injury, cumulative trauma ending April 20, 2004. First, however, we must delve into the procedural morass the timing of the statute wrought upon Burnham’s claim. The WCAB’s ongoing efforts to interpret section 4660 further complicate the issue.
Senate Bill No. 899 (2003-2004 Reg. Sess.) (hereafter SB 899) was enacted on April 19, 2004, as an urgency statute. Provisions of SB 899 allowed the Administrative Director of the Division of Workers’ Compensation to adopt a new schedule for rating permanent disabilities on or before January 1, 2005. (SB 899 (2003-2004 Reg. Sess.) § 32.) The Administrative Director failed to adopt a new permanent disability schedule prior to January 1, 2005. (Cal. Code Regs., tit. 8, § 9805.)
The City employed Burnham as a dispatcher for the police department. Burnham sustained injury to her upper extremities due to cumulative trauma. The end date of the cumulative trauma period alleged was April 20, 2004.
Burnham received temporary disability benefits from August 2, 2004, to March 18, 2005. The City issued a notice regarding permanent disability benefits on March 22, 2005, the conclusion of the temporary disability period.
Section 4061, subdivision (a) requires that when the last payment of temporary disability is sent, the employer must provide notice to the employee indicating the amount of permanent disability indemnity, if any, the employer will be paying now that temporary disability has ended.
Dr. Marvin B. Zwerin, the agreed-upon medical examiner, evaluated Burnham. Dr. Zwerin assessed Burnham’s permanent disability rating under both the old and new disability schedules. Dr. Zwerin found permanent disability of 15 percent after apportionment under the old schedule, but no impairment under the new disability schedule.
The parties proceeded to trial on June 14, 2006, on several issues, including whether the new disability schedule was applicable in calculating Burnham’s permanent disability. The workers’ compensation judge (WCJ) issued her findings and award on July 25, 2006. The WCJ found the new disability schedule should apply and that Burnham failed to establish any exceptions under section 4660, subdivision (d). The WCJ awarded Burnham zero permanent disability.
Burnham sought reconsideration with the WCAB on August 14, 2006. (§ 5900.) The WCAB granted reconsideration on October 16, 2006 (first order). In its first order, the WCAB reversed the WCJ’s decision as to determination of permanent disability and found the old disability schedule should apply. The WCAB deferred a determination of Burnham’s permanent disability rating and ordered the matter remanded to the WCJ for further proceedings consistent with its decision.
The City filed a petition on October 31, 2006, for reconsideration of the first order. The WCAB issued an opinion and order granting the City’s petition for reconsideration on January 2, 2007. The WCAB granted reconsideration “to allow sufficient opportunity to further study the factual and legal issues in this case.”
On February 6, 2007, the WCAB issued an opinion and decision after reconsideration. In the interim between the January 2, 2007, order granting reconsideration and the February 6, 2007, decision, the WCAB issued an en banc decision in Pendergrass v. Duggan Plumbing (2007) 72 Cal.Comp.Cases 95(Pendergrass I). The WCAB decision in this case, consistent with Pendergrass I, affirmed its previous order granting Burnham’s petition for reconsideration, finding the old disability schedule applied (second order). On February 16, 2007, the WCJ issued her findings and award consistent with the first and second orders, finding 15 percent permanent disability after apportionment under the old disability schedule.
The City filed a second petition for reconsideration on March 5, 2007, and a petition for writ of review in this court on March 21, 2007. (City of Chico v. Workers’ Comp. Appeals Bd. (dism. May 17, 2007, C055188).) The WCAB granted the City’s second petition for reconsideration on May 7, 2007.
In the interim between the WCAB’s February 6, 2007, opinion and decision and its May 7, 2007, order granting reconsideration, the WCAB rescinded its decision in Pendergrass I and issued a new en banc decision in the same case, Pendergrass v. Duggan Plumbing (2007) 72 Cal.Comp.Cases 456 (Pendergrass II). The WCAB then issued an opinion and order in this case rescinding the findings and award of February 16, 2007, and finding the new disability schedule applied (third order). On May 10, 2007, the WCJ issued findings of fact, applying the new disability schedule and finding Burnham sustained no permanent disability.
On May 10, 2007, we granted the City’s petition for writ of review in case No. C055188. On May 16, 2007, we filed the City’s request to withdraw its petition for writ of review in case No. C055188. We dismissed the petition for writ of review on May 17, 2007.
Burnham filed her petition for writ of review on June 19, 2007. On August 17, 2007, we issued a writ of review on Burnham’s petition.
DISCUSSION
I
Burnham contends the WCAB’s grant of reconsideration on May 10, 2007, was a null act because the City could not file a new petition for reconsideration. The City argues that a party, newly aggrieved by the WCAB’s decision after the filing of a petition for reconsideration, has the same right to file a petition for reconsideration as the party originally aggrieved.
Both parties agree the general rule is that where a party has filed a petition for reconsideration with the WCAB and that party does not prevail on the petition, the petitioning party cannot attack the WCAB’s action denying reconsideration by filing a second petition for reconsideration. Instead, the petitioning party must challenge the WCAB’s action by filing a timely petition for writ of review. (Ramsey v. Workmen’s Comp. Appeals Bd. (1971) 18 Cal.App.3d 155, 159.)
Burnham argues the City has run afoul of this general rule. Under Burnham’s analysis, the City was first aggrieved in this matter by the WCAB’s first order, issued October 16, 2006. The City filed a petition for reconsideration on October 31, 2006. According to Burnham, “[a]t this point, regardless of the decision issued by the WCAB, all administrative remedies available to the parties under section 5900 had been exhausted regarding the issue of which permanent disability schedule should apply to this matter.” Therefore, according to Burnham, the WCAB’s third order was functus officio [of no further force or authority] since the jurisdiction of the WCAB was exhausted.
The City argues that a party newly aggrieved by the WCAB decision after the filing of a petition for reconsideration has the same right to file a petition for reconsideration as the party originally aggrieved. Therefore, under the City’s reasoning, the City was newly aggrieved when the WCJ issued her decision regarding permanent disability. The WCAB had not previously made a decision regarding the nature and extent of permanent disability, deferring the issue. Since the City was newly aggrieved, the WCAB had jurisdiction to entertain the petition for rehearing filed on March 5, 2007.
Burnham disputes this scenario, arguing the City was not newly aggrieved by the findings and award of the WCJ. The WCAB instructed the WCJ to use the old permanent disability schedule to determine the nature and extent of Burnham’s disability, leaving only the mechanics to the WCJ.
We need not determine which argument is more persuasive in light of section 5803. Section 5803 states, in pertinent part: “The appeals board has continuing jurisdiction over all its orders, decisions, and awards made and entered under the provisions of this division. . . . At any time, upon notice and after an opportunity to be heard is given to the parties in interest, the appeals board may rescind, alter, or amend any order, decision, or award, good cause appearing therefor. [¶] This power includes the right to review, grant or regrant, diminish, increase, or terminate, within the limits prescribed by this division, any compensation awarded, upon the grounds that the disability of the person in whose favor the award was made has either recurred, increased, diminished, or terminated.”
Good cause sufficient to invoke section 5803 may consist of newly discovered evidence that was previously unavailable, a change in the law, or any factor or circumstance unknown at the time the original award or order was made that renders the previous findings and award inequitable. (Brannen v. Workers’ Comp. Appeals Bd. (1996) 46 Cal.App.4th 377, 382.) A subsequent judicial interpretation of the compensation statutes contrary to a prior administrative interpretation is good cause to reopen a case under section 5803. (Knowles v. Workmen’s Comp. App. Bd. (1970) 10 Cal.App.3d 1027, 1030; Sarabi v. Workers’ Comp. Appeals Bd. (2007) 151 Cal.App.4th 920, 925-927.)
Here, the WCAB, in granting reconsideration on May 7, 2007, was exercising its discretionary power to amend its prior determination as to whether the new disability schedule applied. The change in statutory interpretation reflected in Pendergrass II provided good cause to support the WCAB’s action. The parties in interest received both notice and an opportunity to be heard in conjunction with the petition for reconsideration, and the WCAB acted within its authority in rescinding its earlier order and issuing a new order in accordance with Pendergrass II.
II
At the core of this case is the determination of whether Burnham’s permanent disability should be calculated using the old disability schedule or the new disability schedule.
SB 899 (2003-2004 Reg. Sess.) was enacted April 19, 2004, as part of an omnibus workers’ compensation package. The legislation was an urgency measure, effective immediately and designed to alleviate a perceived crisis in skyrocketing workers’ compensation costs. (Brodie v. Workers’ Comp. Appeals Bd. (2007) 40 Cal.4th 1313, 1329-1330.)
Section 47 of SB 899 (2003-2004 Reg. Sess.) states: “The amendment, addition, or repeal of, any provision of law made by this act shall apply prospectively from the date of enactment of this act, regardless of the date of injury, unless otherwise specified, but shall not constitute good cause to reopen or rescind, alter, or amend any existing order, decision, or award of the Workers’ Compensation Appeals Board.”
Section 4660, subdivision (b)(2), as enacted by SB 899 (2003-2004 Reg. Sess.), mandated that the WCAB promulgate a new disability rating schedule. Subdivision (d) of section 4660 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 that result from compensable injuries received or occurring on and after the effective date of the 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 permanent disability, or when the employer is not required to provide the notice required by Section 4061 to the injured worker.”
Burnham argues, despite decisions to the contrary, that section 4660, subdivision (d) provides that all injuries occurring before January 1, 2005, be evaluated under the old disability rating schedule. In its third order the WCAB disagreed, finding the new disability schedule applies to Burnham’s case.
The WCAB cited Pendergrass II: “[I]f the last payment of temporary disability indemnity was made for any period of temporary disability ending before January 1, 2005, then the 1997 Schedule applies to determine the extent of permanent disability, pursuant to section 4660(d), because section 4061 requires the employer to provide the injured worker with a notice regarding permanent disability ‘[t]ogether with the last payment of temporary disability indemnity . . . .’” (Pendergrass II, supra, 72 Cal.Comp.Cases 456.) The WCAB found Burnham’s injury caused temporary disability from August 2004 through March 7, 2005. “Accordingly, as the last payment of temporary disability indemnity was not made for any period of temporary disability ending before January 1, 2005, the 2005 Schedule applies pursuant to Labor Code section 4660(d).”
In her opinion on decision, the WCJ stated the new disability schedule applies “as the last payment of temporary disability indemnity was in March of 2005 . . . . Based on the report of the AME Dr. Zwerin, the Applicant has 0% permanent disability. As there is no award of permanent disability, the issue of apportionment is moot.”
As Burnham notes, we review the application of legislation to undisputed facts de novo. In addition, we give great weight to opinions of the WCAB, but we are not bound by an interpretation that contravenes the legislative intent when evidenced by clear and unambiguous statutory language. (Honeywell v. Workers’ Comp. Appeals Bd. (2005) 35 Cal.4th 24, 34.)
We rejected a similar argument in Chang v. Workers’ Comp. Appeals Bd. (2007) 153 Cal.App.4th 750. We found the permanent disability rating schedule that became effective in 2005 applied to the applicant’s pre-2005 injury rather than the old 1997 schedule in effect at the time of the applicant’s injury. In construing section 4660 we noted: “It allows for limited retroactivity of the new schedule to injuries before January 1, 2005, where there has been either no comprehensive medical-legal report or no report by a treating physician indicating the existence of permanent disability, or when the employer is not required to provide the notice required by section 4061.” (Chang, at p. 756; see also Tanimura & Antle v. Workers’ Comp. Appeals Bd. (2007) 157 Cal.App.4th 1489, 1494-1496.)
III
Burnham also contends that, even if the new schedule is used, the WCAB erred in finding that payment of temporary disability before January 1, 2005, did not constitute an exception under section 4660, subdivision (d).
Section 4061, subdivision (a) requires that an employer send the employee a notice regarding its intention to pay permanent disability indemnity payments “[t]ogether with the last payment of temporary disability indemnity.” Here, the City paid temporary disability from August 2, 2004, to March 18, 2005, and sent Burnham the required notice on March 22, 2005.
In essence, Burnham disagrees with Costco Wholesale Corp. v. Workers’ Comp. Appeals Bd. (2007) 151 Cal.App.4th 148. In Costco, the employee sustained an injury in 2004 and received temporary disability indemnity from October 20, 2004, through June 28, 2005. The court held: “Costco was required to provide notice under section 4061, ‘[t]ogether with the last payment of temporary disability indemnity’ in June 2005. Because that notice was not required before January 1, 2005, the 2005 permanent disability rating schedule applies to Chavez’s case.” (Id. at p. 156.)
In addition, Pendergrass II found the obligation to send a notice under section 4061 does not arise until the last temporary disability indemnity payment is made. (Pendergrass II, supra, 72 Cal.Comp.Cases 456.) We are not persuaded by Burnham’s attempts to revive the analysis set forth in Pendergrass I and abandoned in Pendergrass II. The WCAB did not err in finding the new disability schedule applied to Burnham’s case.
DISPOSITION
The order of the Workers’ Compensation Appeals Board is affirmed. Respondents shall recover costs in this original proceeding.
We concur: SIMS, Acting P.J., BUTZ, J.