Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
ORIGINAL PROCEEDINGS; petition for writ of review from a decision of the Workers’ Compensation Appeals Board, WCAB No. FRE0224105, Alfonso J. Moresi, Ronnie G. Caplane and James C. Cuneo, Commissioners. J. A. Eckl, Workers’ Compensation Administrative Law Judge.
Hanna, Brophy, MacLean, McAleer & Jensen and David F. Boettcher for Petitioner.
No appearance by Respondent Workers’ Compensation Appeals Board.
No appearance by Respondent Lillie Wilson.
OPINION
Before Vartabedian, Acting P.J., Gomes, J., and Dawson, J.
The City of Fresno (City) petitions for a writ of review from a decision of the Workers’ Compensation Appeals Board (WCAB) contending the WCAB applied the incorrect permanent disability rating schedule (PDRS). We conclude the WCAB appropriately applied the former 1997 PDRS because a treating physician issued a report before January 1, 2005, indicating the existence of permanent disability. (Lab. Code, § 4660, subd. (d).) Accordingly, we will deny the petition.
Further statutory references are to the Labor Code unless otherwise indicated.
BACKGROUND
Lillie Wilson injured herself lifting a case of bottled water while working for the City on June 25, 2003. The City admitted the accident caused injury to Wilson’s lower back, but disputed whether she also injured her spine, lower extremities, right hip, and psyche. At a July 2007 hearing, the parties asked a workers’ compensation administrative law judge (WCJ) to address the limited issue of whether the resulting injury should be rated under the 1997 or 2005 PDRS under section 4660, subdivision (d).
Applying Vera v. Workers’ Compensation Appeals Bd. (2007) 154 Cal.App.4th 996, the WCJ concluded Wilson’s injury must be rated under the 2005 PDRS because she had not been medically declared permanent and stationary. Expressing disagreement with Vera, the WCJ added “[t]he Vera case does seem to read into the law words that are not there” because section 4660, subdivision (d), simply requires a “report by a treating physician indicating the existence of permanent disability” -- and not a determination of permanent and stationary status -- to trigger the use of the 1997 PDRS.
The WCJ explained, “I do not know any knowledgeable practitioner of workers’ compensation law who uses the words ‘permanent disability’ and ‘permanent and stationary’ interchangeably although it is certainly true that we cannot know the exact nature and extent of a permanent disability until the injured has become permanent and stationary. We do know that there will be a permanent disability after an amputation, for instance, even though permanent and stationary status has not been attained.”
The WCAB granted Wilson’s petition for reconsideration to study further the factual and legal issues. In June 2008, the WCAB issued an opinion and decision agreeing with Wilson and concluding the former PDRS applied because the medical reporting of V. Roy Smith, M.D, provided an indication Wilson had sustained some level of permanent disability. The WCAB concluded the Vera court’s permanent and stationary status requirement was overly restrictive based on the more recently decided appellate decisions in Genlyte Group, LLC v. Workers’ Comp. Appeals Bd. (2008) 158 Cal.App.4th 705 (Genlyte) and Zenith Insurance Co. v. Workers’ Comp. Appeals Bd. (2008) 159 Cal.App.4th 483 (Zenith).
DISCUSSION
The Legislature adopted omnibus reforms to the state’s workers’ compensation system effective April 19, 2004, as part of Senate Bill No. 899. (Brodie v. Workers’ Comp. Appeals Bd. (2007) 40 Cal.4th 1313, 1323.) Among the changes, the legislation required the Administrative Director of the Division of Workers’ Compensation to amend the PDRS effective January 1, 2005, and every five years thereafter. (§ 4660, subds. (c) & (e); Stats. 2004, ch. 34, § 32.) As directed, the Administrative Director subsequently adopted a new PDRS effective January 1, 2005. (Cal. Code Regs., tit. 8, § 9805.) In most cases, the use of the 2005 PDRS results in significantly reduced awards to injured workers when compared to disabilities rated under the 1997 PDRS. (See Genlyte, supra, 158 Cal.App.4th at pp. 715-716; Zenith, supra, 159 Cal.App.4th at p. 493 & fn. 24.)
Establishing the use of the 2005 PDRS, section 4660, subdivision (d), now provides:
“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.” (Emphasis added.)
“The interpretation of section 4660, subdivision (d) … is a legal issue subject to our de novo review.” (Costco Wholesale Corp. v. Workers’ Comp. Appeals Bd. (Costco)(2007) 151 Cal.App.4th 148, 153.) “While the statute is not a model of linguistic clarity, its intent is clear. The intent is to apply the rating schedule in effect on the date of injury to injuries suffered prior to 2005 in only three circumstances: (1) when a comprehensive medical-legal report issued prior to 2005 indicates permanent disability, (2) when a report from a treating physician issued prior to 2005 indicates permanent disability, and (3) when an employer has been required to give notice under section 4061 prior to 2005 concerning its intentions regarding payment of permanent disability benefits. This interpretation supports the legislative goal of bringing as many cases as possible under the new workers’ compensation law.” (Costco, supra, at p.157.) “‘On the other hand, when none of the three circumstances has occurred before January 1, 2005, then the 2005 schedule applies.’” (Zenith, supra, 159 Cal.App.4th at p. 492, citing Energetic Painting and Drywall, Inc. v. Workers’ Comp. Appeals Bd. (2007) 153 Cal.App.4th 633 and Aldi v. Carr, McClellan, Ingersoll, Thompson & Horn (2006) 71 Cal.Comp.Cases 783 [writ den.].)
Concluding Wilson’s permanent disability must be rated under the 1997 PDRS, the WCAB found the second exception listed in section 4660, subdivision (d) applied because Dr. Smith’s treating physician’s report indicated the existence of permanent disability. Acknowledging the WCJ properly relied upon Vera at the time of issuing the determination, the WCAB concluded the more recent decisions in Genlyte and Zenith “provide the more persuasive analysis and should be followed.”
Under the plain language of section 4660, subdivision (d), we too agree that the medical reporting only need “indicat[e] the existence of permanent disability.” As Genlyte concluded, “The Legislature has repeatedly demonstrated its ability to specify ‘permanent and stationary status’ when that is what it intends.” (Genlyte, supra, 158 Cal.App.4th at p. 719.) “‘We are reluctant to conclude that the Legislature’s use of different terms, at different times in the statutory scheme, is meaningless.’” (Ibid.) Also summarized in Zenith, supra, 159 Cal.App.4th at pp. 497-498:
“[S]ection 4660(d) is worded broadly to include any comprehensive medical-legal or treating physician report ‘indicating the existence of permanent disability.’ The language is not limited to what the Vera court describes as the typical final or permanent stationary report, in which the extent of ratable permanent disability is reported. In an appropriate case, a physician is not precluded from reporting that permanent disability exists prior to permanent and stationary status or the extent of ratable disability is known.” (Fns. omitted.)
The medical evidence indicating the existence of permanent disability must nevertheless be based on substantial evidence. (Zenith, supra, 159 Cal.App.4th at p 495.) “The term ‘substantial evidence’ means evidence, ‘which if true, has probative force on the issues. It is more than a mere scintilla, and means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion…. It must be reasonable in nature, credible, and of solid value.’” (Braewood Convalescent Hospital v. Workers’ Comp. Appeals Bd. (Bolton) (1983) 34 Cal.3d 159, 164.) The report of a single physician, even if in conflict with other medical opinions, may represent substantial evidence to support a finding of fact. (Place v. Workmen’s Comp. Appeals Bd. (1970) 3 Cal.3d 372, 378.)
The City disputes the WCAB’s finding that Dr. Smith’s February 26, 2004, report constitutes substantial evidence of a pre-2005 indication of permanent disability. The City claims the WCAB took the statements in the report “out of context of [Wilson’s] overall condition as reflected in the medical reports before and after February 26, 2004.” The City, however, did not include a copy of Dr. Smith’s February 26, 2004, report with its petition for writ of review, so this court is unable to review the entire context of the diagnosis. The WCAB nevertheless quoted the following from the report:
“‘Although it is still too early to consider her condition permanent and stationary, [Wilson] will probably have a disability precluding heavy lifting and repetitive bending and stooping. I do not think she will be able to return to her usual job and vocational retraining should be considered.’”
Discussing Dr. Smith’s report, the WCAB added:
“The report shows that after surgery there is some improvement in applicant’s back and leg pain but there is still present constant pain in both the lower back and the left anterior thigh and that this pain becomes worse with any attempted strenuous activity. Dr. Smith reviewed the physical requirements of [Wilson’s] regular job and concluded that she would not be able to return to her usual job and that vocational rehabilitation training should be considered. Dr. Smith further opined that although [Wilson’s] condition was not yet [permanent and stationary], she will probably have a disability precluding heavy lifting and repetitive bending and stooping.”
We agree with the WCAB. Dr. Smith’s opinion, couched in terms of reasonable medical probability, indicated Wilson would probably not be able to engage in heavy lifting, repetitive bending, or stooping even after she became permanent and stationary. Moreover, Dr. Smith concluded she would most likely not be able to return to her former line of work and that she would require vocational rehabilitation. As the court in Genlyte noted, “a recommendation for vocational rehabilitation before the workers’ condition reaches permanent and stationary status, as frequently occurs, suggests the existence of permanent disability .…” (Genlyte, supra, 158 Cal.App.4th at p. 722.) Sufficient evidence therefore existed for the WCAB to find a pre-2005 “indication of permanent disability” warranting the use of the 1997 PDRS.
DISPOSITION
The petition for writ of review is denied. This opinion is final forthwith as to this court.