Opinion
F052002
5-4-2007
LEPRINO FOODS, Petitioner, v. WORKERS COMPENSATION APPEALS BOARD and DAVID OWENS, Respondents.
Grancell, Lebovitz, Stander, Barnes and Reubens, for Petitioner. No appearance by Respondent Workers Compensation Appeals Board. The Goldberg Law Firm and Michael Goldberg, for Respondent David Owens.
NOT TO BE PUBLISHED
OPINION
THE COURT
Before Levy, Acting P.J., Hill, J., and Kane, J.
Leprino Foods (Leprino) petitions this court to review the findings of the Workers Compensation Appeals Board (WCAB) awarding benefits to David Owens. Leprino contends the WCAB violated its right to due process by sua sponte referring to a Labor Code presumption and by relying on a date of injury not contained in the parties stipulations. Leprino also argues the WCAB erred by not finding Owenss recovery barred for filing his claims after he was terminated and disputes the date the WCAB initiated temporary disability indemnity. We will deny the petition.
BACKGROUND
Owens worked as a "cheese department group leader" performing foreman duties at Leprinos cheese production and processing plant in Lemoore. During the nightshift on November 10, 2004, Owens and his coworker Rocky Cabellas engaged in a series of altercations and exchanged disparaging statements. At one point around 5:00 a.m., Cabellas drove a forklift towards Owens, causing Owens to jump and fall to the ground.
At about 5:40 a.m., Owens was in supervisor Ed Neels office to prepare a narrative report of the incident. Owens remembered showing Neel a tear in his pants and that his arm and knee were bleeding. Cabellas entered the room and attempted to put the issue behind them, but Owens became noticeably agitated and asked him to leave. According to Owens, both Cabellas and Neel called him a "crybaby." Owens recalled that Neel asked him to go home, stating that if he is "going to be a little baby like this, go ahead and get out of here. I dont want to deal with this." Owens then asked Neel "if I need to fill out a form for the injury." Neel responded that "he doesnt handle that, that Dan Larson does, and hed be in at 8:00 oclock ...." Owens telephoned Larson at 8:00 a.m., but was informed that he was not in.
That day, Leprinos human resources manager, Debbra Vlotho, investigated the events and spoke with various witnesses and Owenss superiors. She left a message for Owens at home and instructed him to come back to work at 3:00 p.m., at which time he met with her and department manager Roger Allen. According to Owens, he told Vlotho he had been injured and requested an accident report form. Vlotho informed Owens he was suspended and advised him to take care of it when he returned on Friday, November 12, 2004. Owens also recalled he told Allen he had a "cherry" on his knee, but Allen did not respond.
Neel denied noticing Owens appearing bloody or that Owens ever reported an injury to him. Neel recalled, however, that Vlotho informed him that Owens was claiming an industrial injury when they discussed the incident.
Allen and Vlotho terminated Owens from Leprino when he reported for work on November 12, 2004. Owens recalled that he again requested to report the injury, but neither manager responded. Vlotho testified that she was aware Owens could file a claim for employer discrimination under Labor Code section 132a if he was fired after he filed an industrial injury claim.
Further statutory references are to the Labor Code
On November 18, 2004, Owens provided Leprino with a workers compensation claim form (DWC-1) listing a November 10, 2004, date of injury for specific injuries resulting from the forklift incident and a cumulative injury resulting from wearing rubber safety shoes while working at Leprino. He also claimed Leprino discriminated against him on account of his industrial injury under section 132a. According to the minutes of the workers compensation administrative law judge (WCJ) from a February 15, 2006, hearing, the parties stipulated:
"Under the Workers Compensation statute, there are two distinct types of industrial `injuries. A compensable injury can be either `specific or `cumulative. (§ 3208.1.) A cumulative injury is one which results from repetitive events, occurring during each days work, which in combination cause any disability or need for medical treatment." (Western Growers Ins. Co. v. Workers Comp. Appeals Bd. (1993) 16 Cal.App.4th 227, 234.)
"David Owens, born 12/4/70, while employed as a lew cheese group leader/laborer, at Lemoore California, by Leprino Foods claims to have sustained injury arising out of and in the course of employment on a continuous trauma basis through 11/10/04 and a specific injury on 11/10/04. The continuous trauma injury is alleged to be to the right foot. The specific injury is alleged to be to the right foot, left knee, left wrist, low back, and left shoulder."
On September 6, 2006, following a second hearing on May 23, 2006, the WCJ found Owens sustained the specific injuries as alleged, with some variations not relevant here, and the alleged cumulative injury on "either November 18, 2004 and December 14, 2004." The WCJ also found Owenss temporarily disabled from December 14, 2004, to the present, that he required further medical treatment, and allowed a lien by the State of California Employment Development Department (EDD) for benefits paid between December 19, 2004, through December 3, 2005. Moreover, the WCJ concluded Leprino discriminated against Owens under section 132a by terminating him as a result of the industrial injury and awarded additional penalties against Leprino.
Leprino raised numerous issues before the WCAB in a petition for reconsideration. In a December 1, 2006, opinion and order granting reconsideration, the WCAB reversed the WCJs finding of employer discrimination under section 132a, slightly amended the award to properly specify Owenss injuries per the WCJs recommendation, and adopted and incorporated the WCJ reasoning from her report and recommendation on the remaining issues.
As described by the WCAB, Leprino contended "the WCJ erred in (1) raising the issue of the Labor Code § 5402 presumption of compensability sua sponte, (2) finding injury to applicants left elbow and entire back (rather than just the low back) ..., (3) purportedly finding dates of injury which were contrary to the dates listed in the parties stipulations, (4) finding that applicants claims were not barred by Labor Code § 2600(a)(10), which, subject to certain exceptions, precludes an applicant from recovering on a claim made after notice of termination, (5) finding that defendant violated Labor Code § 132a, (6) finding that applicant was temporarily disabled from December 14, 2004 to the present and continuing, (7) allowing the lien of EDD, and (8) in awarding applicant attorneys fees based on the purportedly erroneously awarded temporary disability indemnity and increased compensation pursuant to Labor Code § 132a."
DISCUSSION
Resurrecting its arguments rejected by the WCAB on reconsideration, Leprino contends the WCJ contravened the pretrial and trial stipulations by raising a Labor Code presumption sua sponte and finding a different injury date than alleged, erred in finding that Owenss claim was not barred under the "post-termination defense," and issued an initial temporary disability date of December 14, 2004, thus permitting an EDD lien, contrary to the medical evidence. Like the WCAB, we reject Leprinos contentions.
In reviewing a WCAB order, decision, or award, an appellate court must determine whether, in view of the entire record, substantial evidence supports the WCABs findings. (§ 5952; Braewood Convalescent Hospital v. Workers Comp. Appeals Bd. (1983) 34 Cal.3d 159, 164.) We are precluded from substituting our choice of the most convincing evidence for that of the WCAB, and may not reweigh the evidence or decide disputed questions of fact. (§ 5953; Georgia-Pacific Corp. v. Workers Comp. Appeals Bd. (1983) 144 Cal.App.3d 72, 79; Western Growers Ins. Co. v. Workers Comp. Appeals Bd. (1993) 16 Cal.App.4th 227.) Thus, if the WCABs findings " `are supported by inferences which may fairly be drawn from evidence even though the evidence is susceptible of opposing inferences, the reviewing court will not disturb the award. " (Judson Steel Corp. v. Workers Comp. Appeals Bd. (1978) 22 Cal.3d 658, 664.) This court is not bound, however, by the WCABs conclusions of law. (Barns v. Workers Comp. Appeals Bd. (1989) 216 Cal.App.3d 524, 530.)
I. Consideration of a Statutory Presumption
Leprino contends that it was "fatal error and a denial of due process for a WCJ to contravene pre-trial and trial stipulations of the parties by raising" the 90-day presumption of compensability under section 5402, subdivision (b) sua sponte after the matter was submitted for trial. Because Owens did not specifically raise the presumption by listing it as an issue or including it in the parties stipulation, Leprino contends the WCJ was constitutionally prohibited from considering the statutory presumption.
In her initial findings and award, the WCJ explained:
"The DWC-1 received by the employer on November 18, 2004 was adequate notice pursuant to Labor Code § 5400 of both the specific injury and the continuous trauma claim. Defendant notified applicant that they were denying liability for his claims based on `factual discrepancies, statute of limitations, and the post-termination defense by counsels letter of August 11, 2005. [Citation.] The Answer filed on 2/3/05 asserting `all defenses based on statute or case law is vague and not sufficient to meet the requirements that liability was rejected within 90 days after the date of the claim form. (Labor Code § 5402, subd. (b).) Mr. Owens was not served with this pleading, according to the proof of service. The employer or their adjusting agency had an obligation to advise applicant within 90 days."
Section 5402, subdivision (b) provides:
"If liability is not rejected [by the employer] within 90 days after the date the claim form is filed under Section 5401, the injury shall be presumed compensable under this division. The presumption of this subdivision is rebuttable only by evidence discovered subsequent to the 90-day period."
In her report and recommendation to the WCAB, the WCJ elaborated that she "did not rely on the 90 day presumption to find injury" arising out of and in the course of employment. She explained that because the stipulations and issues submitted at trial raised the common law theory of estoppel, section 5402, subdivision (b)s time limitation was relevant to show Leprino failed to convey its intentions to deny the claim in a reasonably timely manner.
Regardless why the WCJ referenced the 90-day presumption of compensability under section 5402, subdivision (b) and whether the WCAB relied upon it in finding Owenss injuries compensable, this court has held a statutory presumption may be considered at any time. "`A presumption is an assumption of fact that the law requires to be made from another fact or group of facts found or otherwise established in the action." (Gee v. Workers Compensation Appeals Bd. 96 Cal.App.4th 1418, 1425, citing Evid. Code, § 600, subd. (a).) Analyzing whether the former treating physicians presumption of correctness applied if not raised as an issue, we explained:
"Although the WCAB is not required to follow the common or the statutory law regarding the admission of evidence (§§ 5708, 5709), it must nevertheless adhere to the same rules of judicial notice applicable to courts of record. [Citations.] One such rule mandates that the WCAB take judicial notice of all federal and state decisional, constitutional, and statutory laws. (Evid. Code, § 451, subd. (a); [citations].) [¶] ... Accordingly, the WCABs consideration of the ... presumption is mandatory and not dependent upon whether a party timely raises the provision as an issue. Whenever the presumptions underlying conditions are established by the pleadings, stipulations, judicial notice, or evidence, the trier of fact must adopt the initial assumption [set forth by the presumption]." (Gee v. Workers Compensation Appeals Bd., supra, 96 Cal.App.4th at p. 1426.)
The WCAB did not engage in fatal error or deny Leprinos due process rights by considering and applying the Labor Code.
II. Date of Cumulative Trauma Injury
Leprino similarly contends it was "fatal error and a denial of due process for a WCJ to rely on a date of injury contrary to pre-trial and trial stipulations made by the parties ...." Leprino argues that because the parties stipulated Owens claimed the specific and cumulative injuries occurred on November 10, 2004, without referencing any other possible dates of injury, the WCJ lacked legal authority to conclude that Owenss cumulative trauma injury date under section 5412 was either through the period ending November 18, 2004, or December 14, 2004. Under section 5412, the date of injury for a cumulative trauma injury is "that date upon which the employee first suffered disability therefrom and either knew, or in the exercise of reasonable diligence should have known, that such disability was caused by his present or prior employment."
Leprino also contends the WCJs findings of fact lists a cumulative trauma date of November 10, 2004, and is thus inconsistent with the later dates appearing in her opinion on decision. This discrepancy was not brought to the attention of the WCAB in Leprinos petition for reconsideration and therefore not properly before this court. Regardless, Leprino fails to demonstrate prejudicial error.
In her report and recommendation to the WCAB, the WCJ reasoned that because the periods of time overlapped and Owenss alleged cumulative injury date of November 10, 2004, is included in the periods of time up to November 18, 2004, or December 14, 2004, "there is no difference between the stipulation of the parties at trial and the Findings of Fact." Under Leprinos reasoning, if the evidence reveals an injury occurred on any day other than that specifically alleged by an applicant, the WCAB is powerless to issue a finding except one exactly conforming with the allegation. Leprinos attempt at restricting the WCABs ability to issue a finding of fact simply because the parties did not previously stipulate to every conceivable outcome is again unavailing.
III. Post-Termination Defense
Leprino contends the WCJ erred by not finding Owenss specific and cumulative injuries barred by the post-termination defense. Except for psychiatric injuries, section 3600, subdivision (a)(10) bars workers compensation recovery if:
"the claim for compensation is filed after notice of termination or layoff ... and the claim is for an injury occurring prior to the time of notice of termination or layoff ... unless the employee demonstrates by a preponderance of the evidence that one or more of the following conditions apply:
"(A) The employer has notice of the injury, as provided under Chapter 2 (commencing with Section 5400), prior to the notice of termination or layoff.
"(B) The employees medical records, existing prior to the notice of termination or layoff, contain evidence of the injury.
"(C) The date of injury, as specified in Section 5411 [for specific injuries], is subsequent to the date of the notice of termination or layoff, but prior to the effective date of the termination or layoff.
"(D) The date of injury, as specified in Section 5412 [for cumulative injuries], is subsequent to the date of the notice of termination or layoff."
As to Owenss specific injury claims, the WCJ found the post-termination defense not applicable under section 3600, subdivision (a)(10)(A) because Owens "credibly testified that he told his immediate supervisor, Ed Neel, and the Human Resources Manager, Deborah Vlotho, that he sustained an injury on November 10, 2004 when he avoided a forklift driven by a co-worker." Leprino contends Owens testimony lacks substantial evidence because he did not produce any corroborating witnesses while five Leprino witnesses, including Vlotho and Neel, all denied knowledge that Owens reported an injury. The WCJ, however, reported to the WCAB that the testimony of Neel and Vlotho was inconsistent in that Neel testified Vlotho told him on November 10, 2004, that Owens planned to file a workers compensation claim.
Consistent with this courts powers of appellate review, "[t]he findings and conclusions of the appeals board on questions of fact are conclusive and final and not subject to review." (§ 5953.) Concluding the testimony of Owens and Neel constituted sufficient evidence as a matter of law to support the WCABs finding that Leprino management had knowledge of an injury before terminating Owens, we decline Leprinos invitation to reweigh the evidence in Leprinos favor.
As to Owenss cumulative trauma injury, the WCJ found the claim not barred by the post-termination defense under section 3600, subdivision (a)(10)(D). That provision expressly permits post-termination cumulative injury claims where the date of injury, as established under section 5412, occurs after termination. The WCJ found Owenss cumulative injury occurred on either November 18, 2004, or December 14, 2004, consistent with reporting from two physicians. Although Leprino contends Owens was required to file a workers compensation claim before termination when he first noticed foot pain, Leprino never demonstrated Owens knew or reasonably should have known the pain was casually connected to his employment before he was terminated. (City of Fresno v. Workers Comp. Appeals Bd. (1985) 163 Cal.App.3d 467, 471 [employer does not prove employee knew he had an industrial injury "merely by a showing that the employee knew he had some symptoms"].)
IV. Temporary Disability Benefits & EDD Lien
Leprino lastly contends there was "no factual, legal or medical basis" to award Owens temporary disability payments beginning December 14, 2004, which also permitted EDDs lien against those benefits. In finding Owens temporarily disabled as of December 14, 2004, the WCJ expressly relied on evidence proffered by the EDD from Dr. Matthew Sciaroni dated December 16, 2004, certifying Owens was disabled as of December 14, 2004. The WCJ also considered that Dr. Jeffrey Lundeen, who prepared a comprehensive orthopedic evaluation on June 1, 2005, reported that Owens was temporarily disabled due to the industrial injuries. Leprino attempts to discredit Dr. Sciaronis reporting as only a signed "slip" that indicates "disability" and not "temporary disability," but did not include it as an exhibit with this court. Leprino also contends Dr. Lundeen reported Owens became temporarily disabled "effective June 1, 2005." Dr. Lundeen, however, actually reported on June 1, 2005, that "[t]he patient should be considered in a temporary partial disability work status," without mentioning an effective date. Leprino does not demonstrate to WCABs determination lacks substantial evidence.
DISPOSITION
The petition for writ of review, filed January 12, 2007, is denied. Respondent David Owens request for attorney fees is denied. This opinion is final forthwith as to this court.