Opinion
F053519
11-16-2007
JACK LITTLE, Petitioner, v. WORKERS COMPENSATION APPEALS BOARD, TRI-VALLEY GROWERS, et al., Respondents.
William S. Morris, for Petitioner. No appearance by Respondent Workers Compensation Appeals Board. Law Office of Joseph J. Barlupo and Elizabeth McDonald, for Respondents Tri-Valley Growers and National Union Insurance adjusted by AIG Claims Service Inc.
NOT TO BE PUBLISHED
OPINION
THE COURT
Before Harris, Acting P.J., Wiseman, J., and Gomes, J.
Jack Little petitions for a writ of review contending the Workers Compensation Appeals Board (WCAB) erred in concluding he filed a deficient skeletal petition for reconsideration and that he failed to prove he required erectile dysfunction medication on an industrial basis. (Lab. Code, § 5950; Cal. Rules of Court, rule 8.494.) Proceeding to the merits of Littles claim, we find substantial evidence supporting the WCABs decision and therefore deny his petition.
Further statutory references are to the Labor Code.
BACKGROUND
Little worked as a maintenance mechanic for Tri-Valley Growers. In December 2002, the parties agreed Little sustained three separate industrial injuries in 1990, 1992, and 1999 to his right knee, left knee, and back. On January 9, 2003, a workers compensation administrative law judge (WCJ) approved a Stipulations with Request for Award establishing Little was 60 percent permanently disabled, warranting $58,862.50 in compensation and future medical treatment to cure or relieve him from the effects of the injuries.
Little subsequently filed a request for a workers compensation hearing to determine his entitlement to medical treatment for hypertension and erectile dysfunction under the stipulated award. Little offered a medical report from his qualified medical examiner (QME), Richard A. Levy, M.D., and Tri-Valley Growers offered several reports from its QME, Matthew W. Duncan, M.D. On May 30, 2006, the WCJ found Littles industrial injuries aggravated his hypertension, but did not cause any erectile dysfunction disorder. Thus, the WCJ ordered Tri-Valley Growers to provide medical care for Littles hypertension only.
Little petitioned the WCAB for reconsideration, contending the WCJ failed to note that certain issues had been deferred at the mandatory settlement conference and that substantial evidence supported a finding that he required Viagra on an industrial basis. Critical that Little had not objected earlier to the WCJs summary of issues, the WCJ nevertheless vacated its Findings and Order and reset the matter for a status conference because Littles older files had been sent to storage and needed to be retrieved before sending the matter to the WCAB for reconsideration. On November 28, 2006, the WCJ reissued the prior findings, adding that "past medical care and attorney fees are deferred."
Little again petitioned the WCAB for reconsideration claiming the WCJs decision was not supported by the evidence. Following another conference in January 2007, the WCJ reissued an identical Findings and Orders on May 1, 2007.
On May 14, 2007, Little petitioned the WCAB a third time. The brief three-page petition contained a single paragraph argument stating in its entirety:
"In the previous two [P]etitions for Reconsideration, Applicant has detailed exactly how the record factually supports Applicants position. Should the Board be interested in the details, Applicant hereby refers to the argument found in the previous two Petitions for Reconsideration. Suffice it to say that although both QMEs are careful, and almost paranoiac, in their detailing how Applicants erectile dysfunction is not related at all to any nerve impingement, the QMEs are also unanimous in their determination that the erectile dysfunction is caused by Applicants use of medication for his hypertension. Although there is no direct cause for Applicants erectile dysfunction by reason of his orthopaedic [sic] injury, there is still an industrial cause by reason of medications provided to treat Applicants industrially caused hypertension. Applicant is entitled to have his erectile problems treated pursuant to Labor Code § 3600 as treatment necessary to cure or relieve Applicant from the effects of his industrial injury."
In response to the third Petition for Reconsideration, the WCJ suggested in a Report and Recommendation to the WCAB that Littles evaluating physician was inconclusive and the record was incomplete in establishing Littles need for medication to treat his impairment. The WCJ concluded that it "holds itself open to receiving further evidence on this matter and ... recommends that it be allowed to do so."
The WCAB issued its own decision on July 16, 2007. The majority opinion by the WCAB Chairman first advised Little that his petition was denied for filing a skeletal petition without including any statutory grounds for reconsideration or specific references to the record pursuant to California Code of Regulations, title 8, section 10846 and instead inviting the WCAB to review prior pleadings should it "`be interested in the details." The Chairman continued that "even if, assuming arguendo, applicants petition for reconsideration were not skeletal, we would deny it on the merits because applicant did not prove by a preponderance of the evidence that his erectile dysfunction is a compensable consequence of the industrial injuries. (Lab. Code, § 3205.5.)" A dissenting commissioner would have returned the matter to the WCJ to further develop the record.
DISCUSSION
Little goes to great lengths in arguing that his Petition for Reconsideration was not skeletal because it incorporates by reference prior pleadings and that the brevity was required because the WCJ purportedly limited the length of pleadings filed with the WCAB. However, the WCAB majority also explained that it would have denied the petition absent the briefing deficiency because Little never met his burden of proving industrial causation; we therefore proceed to the merits of the denial for reconsideration.
Little argues his third Petition for Reconsideration was minimal because the WCJ effectively insisted the petition remain under three pages in length as evidenced by the WCJs failure to address all of Littles issues on reconsideration and repeatedly vacating the decision and returning the matter to the trial level. Although he also refers to off the record comments by the WCJ, Little points to nothing in the record to suggest the WCJ was concerned with, let alone exerted some control over, documents filed with the WCAB. It is hard to contemplate how a WCJ could do so any more than this court could limit pleadings filed with our Supreme Court.
If Little had filed a Petition for Writ of Review with this court similar to his Petition for Reconsideration and asked us to refer to prior pleadings, we too would be discontent with counsel who could not, at the very least, cut and paste the same discussion into the new petition — not that we recommend repeating arguments verbatim. Asking a tribunal to search its own files if it "should be so inclined" for prior arguments and evidence in the record is no way to succeed in litigation. We therefore cannot criticize the WCABs evident annoyance with Littles petition.
"We begin by noting that judicial review of decisions of the WCAB on factual matters is limited to determining whether the decision, based on the entire record, is supported by substantial evidence (§ 5952, subd. (d); LeVesque v. Workmens Comp. App. Bd. (1970) 1 Cal.3d 627)." (Southern California Rapid Transit Dist., Inc. v. Workers Comp. Appeals Bd. (1979) 23 Cal.3d 158, 162.) The opinion of a single physician may constitute substantial evidence, unless it is erroneous, beyond the physicians expertise, no longer germane, or based on an inadequate history, surmise, speculation, conjecture, or guess. (Braewood Convalescent Hospital v. Workers Comp. Appeals Bd. (1983) 34 Cal.3d 159, 169; Place v. Workmens Comp. App. Bd. (1970) 3 Cal.3d 372, 378; see also Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 620-621 [en banc].) The burden of proving an injury is compensable as arising out of and in the course of employment falls on the employee and generally presents a question of fact to be determined in light of the circumstances. (§§ 3202.5, 3600, subd. (a), 5705; Wright v. Beverly Fabrics, Inc. (2002) 95 Cal.App.4th 346, 353.)
Consistent with Littles January 9, 2003, stipulated award, section 4600, subdivision (a) requires an employer to provide an injured employee medical care, including medications, "reasonably required to cure or relieve the injured worker from the effects of his or her injury ...." In addition to his hypertension issue, Little asked the WCJ at the February 6, 2006, hearing whether he "sustained an erectile dysfunction disorder resulting from his industrial injury." Although Little did not testify, he presented an offer of proof that he "has complained to his physician regarding sexual dysfunction, and because of back pain he cannot concentrate and loses his erection. The Viagra allows him to maintain his erection and consumate [sic] sexual intercourse."
Tri-Valley Growers QME, Dr. Duncan, evaluated Little on October 16, 2003, to look into whether "the patients lower back pain may be affecting his sexual function and [if] there is a need for Viagra." According to Dr. Duncans QME report dated November 24, 2003, Little began experiencing sexual dysfunction six years earlier. He sought medical attention from a urologist who "did a complete work-up," but the testing turned out negative. He started taking Viagra and obtained "good results."
Dr. Duncan discussed in his report the various causes in which back injuries could cause impotence and found none of them existed in Little. The doctor explained:
"In conclusion, I do not see any reason to conclude that the patients improvement after Viagra because of his history of back injury should be treated on an industrial basis. Back pain is not a cause of sexual dysfunction. The literature states that it is a structural damage to a persons spine such as fractures or severe nerve injuries that could result in impotence and neither of these factors occurred in the patient. It is with all medical probability that the patient has non-industrial factors that is a cause of his sexual dysfunction and there are no industrial factors that I can identify that would have caused such dysfunction. Viagra, even though the patient improved, is used on a non-industrial basis." (Emphasis added.)
Dr. Duncan confirmed his opinion in a January 20, 2004, supplemental report after reviewing additional records from Littles urologist.
Littles QME, Dr. Levy, reported on June 8, 2004, that he examined Little on May 17, 2004. In taking Littles history, Dr. Levy recorded:
"[Little] has had sexual problems over the last few years. He denies any problems with his libido or erection. However, when he feels orthopedic pain he loses interest. He says that orthopedic pain compromises his sexual activities generally 50% of the time."
Dr. Levy concluded:
"This patient reportedly does have erectile dysfunction. I would concur with Dr. Duncan that his spinal issues are not causing him any erectile dysfunction.... Mr. Littles hypertensive medicines and other medicines, in my belief, are not causing erectile dysfunction. From Mr. Littles own history, it seems that orthopedic pain is his limiting factor. It certainly was the same limiting factor on the treadmill. Mr. Littles history suggests that whenever he develops pain, he has erectile dysfunction. While there is no direct internal medicine or urologic issue for his erectile dysfunction, it certainly, historically, is reasonable to assume that orthopedic pain would limit sexual activity. Given the extensive nonsteroidal and narcotic use, it would seem reasonable that Mr. Little likely premedicated himself prior to sexual activity. If he breaks through with pain despite medicines, it is clear that he has done likely what he was able to do in terms of controlling orthopedic pain.
"Mr. Little will likely need further medical treatment with respect to his hypertension.... I would not recommend [certain medications] as they may all negatively influence erectile dysfunction. I would concur that Viagra use is likely on a non-industrial basis. However, to the extent which he does have orthopedic pain limiting sexual activity or interest, that component likely will need ongoing medical attention in terms of orthopedically controlling his pain." (Emphasis added.)
Neither Dr. Duncan nor Dr. Levy found any medical basis for Littles sexual dysfunction. Dr. Duncan concluded that back pain does not cause sexual dysfunction, and while Dr. Levy concluded the back pain may "negatively influence erectile dysfunction," the underlying pain should be treated orthopedically rather than providing Viagra on an industrial basis. Thus, Little never demonstrated that Viagra was the only or most reasonable form of medical treatment. Given the reporting from both QME physicians, substantial evidence supports the WCABs decision denying Little erectile dysfunction medication.
DISPOSITION
The Petition for Writ of Review, filed August 16, 2007, is denied. This opinion is final forthwith as to this court.