Opinion
NOT TO BE PUBLISHED
WCAB No. SAC 341948
SCOTLAND, P. J.
Bimla Madhaw settled her workers’ compensation case with her employer, Huhtamaki Americas, Inc. (Huhtamaki), by agreeing to a lump sum payment of $35,000, from which would be deducted “$10,260 subject to proof for permanent disability advances [paid to Madhaw] through 3/10/05,” and any “further permanent disability advances made after the date set forth above,” i.e., after March 10, 2005.
A dispute arose, after the agreement was signed, regarding the amount of credit to which Huhtamaki was entitled for permanent disability advances (PDAs), namely whether it should get credit for additional PDAs totaling $5,278. A workers’ compensation judge (WCJ) ruled the “phrase ‘subject to proof’ in the Compromise and Release does not include [the disputed] $5,278.00”; thus, Huhtamaki was “not entitled to deduct $5,278.00 from [the lump sum agreement].”
Upon reconsideration, the Workers’ Compensation Appeals Board (the Board) agreed with the WCJ. We issued a writ of review and now shall annul the Board’s decision.
BACKGROUND
Madhaw was employed by Huhtamaki as a forklift operator in 2002, when she sustained an injury to her lower back and bilateral upper extremities. Huhtamaki provided Madhaw with medical treatment and periodic benefits, including PDAs.
At a mandatory settlement conference on January 10, 2007, the parties entered into a compromise and release agreement (C&R), with the WCJ’s approval, to settle the matter for a lump sum payment of $35,000, with deductions of $485.71 for an Employment Development Department (EDD) lien; $4,200 in attorney fees; and $10,260 of PDAs, “subject to proof for [PDAs] through 3/10/05.” After the deductions, Madhaw was to be paid a lump sum of $20,054.29, “less further [PDAs] made after the date set forth above.” The addendum to the C&R noted Madhaw disputed receiving a PDA of $2,880 that Huhtamaki claimed to have made, and it was agreed that Huhtamaki would withhold that amount “pending proof of receipt provided to [Madhaw]” and that jurisdiction would be “reserved to adjudicate this issue.”
The dispute over $2,880 is not an issue before us.
Thereafter, Huhtamaki determined that it had paid Madhaw an additional $5,278 in PDAs not reflected in the C&R. Therefore, it deducted this additional amount from the lump sum of $20,054.29, and issued a check to Madhaw in the amount of $14,776.29.
Madhaw objected to the deduction, contending Huhtamaki was obligated to pay the entire balance of $20,054.29, as shown on the C&R. Huhtamaki disagreed, asserting it was entitled to credit for all PDAs “subject to proof,” including the $5,278.
A hearing was held, at which Huhtamaki introduced evidence that it had made PDAs to Madhaw on July 12, 2006, and July 21, 2006, totaling $5,278. Madhaw testified that she would not have settled her case for less than a lump sum payment of $20,000 and, thus, if she had realized an additional $5,278 was going be deducted from her settlement, she would not have agreed to the C&R. Her son confirmed that Madhaw was determined to receive a lump sum payment of $20,000.
Ruling the phrase “subject to proof” in the C&R was limited to the disputed $2,880 PDA and did not include the $5,278 PDAs, the WCJ held that Huhtamaki was not entitled to deduct the $5,278 in PDAs from the lump sum payment agreed upon in the C&R. Finding that Huhtamaki had not complied with a regulation requiring it to have a “current computer print-out of benefits paid available for inspection at every mandatory settlement conference” (Cal. Code Regs., tit. 8, § 10607), the WCJ reasoned that Huhtamaki could not “unilaterally . . . change[] the terms of the agreement” later by seeking credit for the additional PDAs.
Huhtamaki filed a petition for reconsideration, functionally an administrative appeal to the Board. (See Painter v. Workers’ Comp. Appeals Bd. (1985) 166 Cal.App.3d 264, 269; Bonner v. Workers’ Comp. Appeals Bd. (1990) 225 Cal.App.3d 1023, 1038.) In his report and recommendation on reconsideration, the WCJ stated: “The language in [the C&R] is clear. There is no basis to infer that [Huhtamaki] reserved unto itself the right to deduct any permanent disability other than [the] $2,880.00 specifically mentioned and any continuing [PDAs] . . . . and the proper determination is that the phrase ‘subject to proof’ does not include [the] $5,278.00 claimed by [Huhtamaki].” The Board adopted and incorporated the WCJ’s report and recommendation, and denied the petition for reconsideration.
DISCUSSION
Huhtamaki relies on County of San Joaquin v. Workers’ Comp. Appeals Bd. (2004) 117 Cal.App.4th 1180 (hereafter San Joaquin) to support its contention that the language “subject to proof” in the C&R reserved Huhtamaki’s right under the agreement to get credit for all PDAs paid to Madhaw.
Huhtamaki also relies on Vons Companies, Inc. v. WCAB (1998) 63 Cal.Comp.Cases 276 to support this point, but it is a Court of Appeal opinion not published in the California Official Reports. Accordingly, it is not citable authority. (San Joaquin, supra, 117 Cal.App.4th at p. 1186.)
Madhaw, however, construes Huhtamaki’s argument as not based upon an interpretation of the language of the agreement, but as “essentially complain[ing] that substantial evidence does not support the [Board’s] finding denying [Huhtamaki] the right ‘to assert credit to deduct all [PDAs] paid to date, including the sum of ‘$5,278.00’, from the amount it was ordered to pay Madhaw in settlement of her workers’ compensation claim by way of a compromise and release agreement.” Madhaw goes on to assert that Huhtamaki has not “fully and fairly” set forth the record, even accusing Huhtamaki of “improperly mislead[ing] [us] as to the state of the evidence . . . to get [us] to reweigh the evidence presented to [the WCJ and the Board].” Consequently, Madhaw argues, Huhtamaki has forfeited its claim of error.
In analyzing this case, we do not rely on documents other than those in the Board’s file. To the extent that Huhtamaki’s petition for writ of reviews contains exhibits which are not in the Board’s file, we do not consider them.
Actually, this case turns not on the sufficiency of evidence but on an interpretation of the C&R, which, Huhtamaki asserts, used language expressing the intent that, in Huhtamaki’s words, it would “take credit for all [PDAs] made to [Madhaw] before and after the Order Approving Compromise and Release was issued.” Indeed, there were no disputed facts because, at the hearing on June 4, 2007, the parties stipulated to the facts.
“The meaning of a contractual release is a legal question, not a factual question, and the meaning is resolved by application of contract principles. [Citation.]” (San Joaquin, supra, 117 Cal.App.4th at p. 1184.) We are not bound by the Board’s conclusions of law. (Barnes v. Workers’ Comp. Appeals Bd. (2000) 23 Cal.4th 679, 685; Dimmig v. Workmen’s Comp. Appeals Bd. (1972) 6 Cal.3d 860, 864-865; State Comp. Ins. Fund v. Workers’ Comp. Appeals Bd. (1998) 66 Cal.App.4th 1154, 1161, fn. 13.)
As we will explain, the clear, unambiguous terms of the C&R entitled Huhtamaki to credit, against the lump sum settlement, for “further permanent disability advances made [to Madhaw] after the date set forth above [March 10, 2005]”--which includes the $5,278 in PDAs paid to her on July 12, 2006, and July 21, 2006 (payments that, on this record, she has never disputed receiving)--regardless of whether Huhtamaki complied with the regulation requiring it to make available for inspection at the mandatory settlement conference a current computer print-out of benefits paid.
San Joaquin, supra, 117 Cal.App.4th 1180 is instructive. The employer in San Joaquin made an offer and drafted a proposed C&R for a lump sum payment of $20,000, less certain amounts that included PDAs then totaling $2,442.87. (Id. at p. 1182.) This offer was rejected by the employee. At a settlement conference, the parties agreed to a settlement that included a lump sum payment of $24,000, from which PDAs of $2,442.87 would be deducted, leaving a balance of $21,557.13 less approved attorney fees. (Id. at pp. 1182-1183.) Also included in the C&R was a handwritten sentence stating, “‘Less credit for further PDA subject to proof.’” (Ibid.)
Prior to paying the settlement, the employer realized that it had paid the employee additional PDAs between the original offer in October 2001 and the accepted offer in April 2002. Based on the language of the contract, it deducted those additional PDA payments from the lump sum settlement amount. (San Joaquin, supra, 117 Cal.App.4th at p. 1183.)
The WCJ found the employer was entitled to credit only for $2,442.87 of PDAs. The Board agreed, adopted the WCJ’s reasoning that the employer’s “‘failure to present an accurate PDA figure to [the employee] on the date the settlement was entered’” was not excused by the language “subject to proof.” (San Joaquin, supra, 117 Cal.App.4th at p. 1184.)
Concluding that the C&R language regarding PDAs was clear and was intended to give the employer credit for any PDAs paid “beyond the amount stated, if the employer proved such had been paid,” this court annulled the Board’s decision. (San Joaquin, supra, 117 Cal.App.4th at p. 1184 .) In doing so, the court explained that the employer’s failure to comply with the regulation requiring it to have, at the mandatory settlement conference, a current printout of all the benefits paid (Cal. Code Regs., tit. 8, § 10607) did not preclude the employer from taking credit for PDAs. (San Joaquin, supra, 117 Cal.App.4th at p. 1185 [the regulation “does not state that the failure to comply [with it] has the effect of precluding credits for PDA’s. . . . [The employee] should have known what money she had received just as well as [the employer] should have known what money had been paid”].)
Simply stated, it is “[t]he language of a contract governs its interpretation, if the language is clear. (Civ. Code, § 1638.) ‘A contract must be so interpreted as to give effect to the mutual intention of the parties as it existed at the time of contracting, so far as the same is ascertainable and lawful.’ [Citations.]” (San Joaquin, supra, 117 Cal.App.4th at p. 1184.) “‘The whole of a contract is to be taken together, so as to give effect to every part, if reasonably practicable, each clause helping to interpret the other.’ [Citation.]” (Id. at p. 1185.)
Here, the issue of credits for PDAs made to Madhaw is addressed in three places in the C&R into which Madhaw and Huhtamaki entered. In paragraph 6, they agreed: “$10,260.00 subject to proof” was paid in permanent disability advances during the periods of January 13, 2003, through August 10, 2003, and June 11, 2004, through March 10, 2005. Paragraph 7 states: “The parties agree to settle the above claim(s) on account of the injury(ies) by the payment of the SUM OF $35,000.00. The following amounts are to be deducted from the settlement amount: [¶] $10,260.00 subject to proof for permanent disability advances through 3/10/05 [¶] . . . [¶] $485.71 payable to E.D.D. [¶] . . . [¶] $4,200.00 requested as applicant’s attorney’s fee. [¶] LEAVING A BALANCE OF $20,054.29, after deducting the amounts set forth above and less further permanent disability advances made after the date set forth above. . . . [¶] *DEFENDANT(S) ASSERT CREDIT FOR ALL CONTINUING PERMANENT DISABILITY ADVANCES.” (Italics added.) The final place addressing PDAs is the addendum to the C&R, stating: “Applicant disputes receipt of permanent disability advance check number 46692713 in amount of $2880.00. Defendants will withhold $2880.00 from C&R proceeds pending proof of receipt provided to applicant w/o penalty. Juris[diction] reserved to adjudicate this issue.”
We agree with the Board that the language in this agreement is clear. We also agree with the WCJ and the Board that the language “subject to proof” applies only to PDAs made during the specified time periods up to March 10, 2005. The obvious purpose of the “subject to proof” language is that the C&R specifies the parties (1) disputed whether Huhtamaki had made a PDA in the amount of $2,880 prior to March 10, 2005, and (2) agreed that Huhtamaki was entitled to credit for a $2,880 PDA if it could prove the payment was made.
However, this does not mean, as the WCJ and the Board concluded, that by claiming credit for the $5,278 in PDAs made to Madhaw after March 10, 2005, Huhtamaki was unilaterally trying to change the terms of the agreement. To the contrary, the C&R explicitly provides that Huhtamaki is entitled to credit for future PDAs in the amount of $5,278 if it shows those payments were made after March 10, 2005. This is so because the C&R unambiguously states that Huhtamaki is entitled to deduct from the settlement amount of $35,000 “further permanent disability advances made after the date set forth above [March 10, 2005].” Thus, “[t]he facial meaning of the language was to give credit for [additional] PDA’s, beyond the amount stated, if the employer proved such had been paid.” (San Joaquin, supra, 117 Cal.App.4th at p. 1184.)
At oral argument in this court, Madhaw’s attorney suggested the phrase “LEAVING A BALANCE OF $20,054.29, after deducting the amounts set forth above and less further permanent disability advances made after the date set forth above” (italics added) is ambiguous as to which date it refers. Stated another way, counsel argued it is not clear this means the date of March 10, 2005. We disagree. As reflected on page 8 of our opinion, ante, the phrase is contained in paragraph 7 of the C&R, and the only date in that paragraph is March 10, 2005, a date also relating to deduction of permanent disability advances. Accordingly, the only reasonable interpretation of the words “less further permanent disability advances made after the date set forth above” is that it means March 10, 2005.
The fact that Huhtamaki failed to comply with the regulation requiring it to make available for inspection at the settlement conference a current computer printout of benefits paid does not deprive Huhtamaki of its contractual right to get credit for the $5,278 in PDAs made to Madhaw after March 10, 2005. As pointed out in San Joaquin, the regulation does not impose a sanction for an employer’s failure to comply with it. (San Joaquin, supra, 117 Cal.App.4th at p. 1185.) The onus of knowing how much in PDAs has been paid and received does not lie exclusively with the employer. The injured worker should have known “what money she had received just as well as defense counsel should have known what money had been paid.” (Ibid.) The additional $5,278 was paid to Madhaw almost six months prior to the signing of the C&R. Thus, she necessarily knew of those payments when the offer was made in January 2007, and she knew there were PDAs paid after March 10, 2005. “Because defense counsel did not have the current figure at the hearing is not a reason to ignore a provision of the compromise.” (Ibid.) If Madhaw was determined to receive a lump sum payment of $20,000, the C&R could have been crafted to achieve that, but it was not so worded. The C&R controls, not Madhaw’s unstated intention.
Lastly, we note that our interpretation of the C&R in this case, and Huhtamaki’s entitlement to credit for $5,278 in PDAs made to Madhaw after March 10, 2005, is consistent with the normal practice in workers’ compensation cases to give an employer full credit for PDAs. (San Joaquin, supra, 117 Cal.App.4th at p. 1187.)
DISPOSITION
The Board’s decision is annulled, and the cause is remanded for further proceedings consistent with this opinion. The parties shall bear their own costs on review. (See Arp v. Workers’ Comp. Appeals Bd. (1977) 19 Cal.3d 395, 411.)
We concur: SIMS, J., RAYE, J.