Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
ORIGINAL PROCEEDINGS; petition for writ of review from a decision of the Workers’ Compensation Appeals Board. Frank M. Brass, Merle C. Rabine and James C. Cuneo, Commissioners. WCAB No. VN0503072, Terrence E. McEvoy, Workers’ Compensation Administrative Law Judge.
Adams, Ferrone & Ferrone and E. Earl Dove for Petitioner.
No appearance by Respondent Workers’ Compensation Appeals Board.
Hanna, Brophy, MacLean, McAleer & Jensen and Elizabeth C. Barravecchia for Respondents Yellow Roadway Corporation (Yellow Roadway) and Gallagher Bassett Services, Inc.
Before Wiseman, Acting P.J., Cornell, J., and Kane, J.
OPINION
David Lopez petitions this court for a writ of review from a decision of the Workers’ Compensation Appeals Board (WCAB). (Lab. Code, §§ 5950, 5952; Cal. Rules of Court, rule 8.494.) Lopez contends the WCAB should have found an injury to his right knee was compensable as an industrial injury because his employer failed to timely deny the claim and pursuant to the medical evidence. We find no merit to Lopez’s claims and deny the petition.
Further statutory references are to the Labor Code.
BACKGROUND
Lopez worked as a truck driver for Yellow Roadway between May 1989 and August 2004, during which time he filed three different workers’ compensation claims.
WCAB case No. VNO-510021 (Claim 1) involved a specific injury on April 26, 2004, to Lopez’s right elbow. Yellow Roadway accepted the injury as industrially related.
“An injury may be either: (a) ‘specific,’ occurring as the result of one incident or exposure which causes disability or need for medical treatment; or (b) ‘cumulative,’ occurring as repetitive mentally or physically traumatic activities extending over a period of time, the combined effect of which causes any disability or need for medical treatment.” (§ 3208.1.)
Claim 1 was administratively consolidated with WCAB case No. VNO-503072 (Claim 2), in which Lopez alleged he sustained cumulative trauma injuries between February 16, 2001, to July 23, 2004, to various body parts including his right knee. Following a November 8, 2005, hearing, a workers’ compensation administrative law judge (WCJ) ruled on January 31, 2006, that Lopez failed to present any medical evidence of a cumulative trauma injury, but it might support “a possible specific injury to Applicant’s right knee, most likely occurring on or about February or March 2004 … with the other body parts alleged as a ‘compensable consequence’ of that specific knee injury….” (Emphasis added.) On March 6, 2006, the WCJ issued a report and recommendation to the WCAB confirming the decision. On March 16, 2006, the WCAB denied Lopez’s petition for reconsideration in Claim 2.
Meanwhile, on February 7, 2006, Lopez filed a third workers’ compensation claim in WCAB case No. BAK-148540 (Claim 3) alleging he sustained a specific injury to his right knee and additional body parts in February or March 2004 while unloading a truck.
In a letter to the WCJ dated March 24, 2006, referencing all three case numbers, Lopez’s counsel wrote:
“Consistent with Report and Recommendation of Workers’ Compensation Administrative Law Judge on Petition for Reconsideration issued by you on March 6, 2006, Applicant amends the date of injuries to conform to proof herein and per the WCAB the specific injuries are dated: February or March 2004 and 2/16/01.”
On March 30, 2006, Lopez’s counsel filed a declaration of readiness to proceed listing all three claims and asking for the WCAB’s assistance to amend the pleadings to conform to the WCJ’s findings. On April 8, 2008, following a February 1, 2008, hearing, the WCJ ruled that Lopez sustained specific injuries to his right elbow on April 26, 2004, in Claim 1 and to his right calf muscle on February 16, 2001, in Claim 2. The WCJ also concluded that Lopez’s allegation of a cumulative trauma injury from February 16, 2001, to July 23, 2004, in Claim 2 was barred as final and that Lopez did not sustain any specific injury in either February or March 2004 as alleged in Claim 3. Lopez petitioned for reconsideration, which the WCAB denied by adopting and incorporating the WCJ’s reasoning from a May 19, 2008, report and recommendation.
Contrary to the California Rules of Court, rule 8.494(a)(1)(B), Lopez failed to provide this court with a copy of the WCJ’s May 19, 2008, report and recommendation. Yellow Roadway, however, has included the report with its answer to the petition, which adequately dispels Lopez’s contentions. We find Lopez’s omission of the report troubling, and as Yellow Roadway appropriately notes, alone sufficient grounds to deny the petition. (Shepherd v. Workers’ Comp. Appeals Bd. (1981) 46 Cal.Comp.Cases 366 [writ denied].) Nevertheless, we have considered Lopez’s contentions, as best as we can decipher them, and find no grounds to disturb the WCAB’s decision.
DISCUSSION
Intertwining his three separate WCAB claims, Lopez contends the WCAB should have found his injury to his right knee was compensable under the workers’ compensation system because Yellow Roadway did not timely deny the claim, because the WCJ suggested Lopez may have sustained an injury before issuing a final ruling, and because the pleadings were amended to conform to the WCJ’s early comments. Lopez further contends that surgery to his right knee resulted in injury to other parts of his body, which also must be found industrial injuries.
“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. Workmen’s 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 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.) “Questions of statutory interpretation are, of course, for this court to decide.” (Western Growers Ins. Co. v. Workers’ Comp. Appeals Bd. (1993) 16 Cal.App.4th 227, 233.)
I. Presumption of Industrial Injury
Lopez believes the WCAB should have found his right knee injury compensable as an industrial injury because Yellow Roadway never provided a claim form or denied the claim. Section 5401, subdivision (a) provides, in relevant part:
“Within one working day of receiving notice or knowledge of injury under Section 5400 or 5402, which injury results in lost time beyond the employee’s work shift at the time of injury or which results in medical treatment beyond first aid, the employer shall provide, personally or by first-class mail, a claim form and a notice of potential eligibility for benefits....”
Section 5402, subdivision (b) continues:
“If liability is not rejected 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.”
Pointing to an “Employee’s Statement of Injury” signed and filed by Lopez with his employer on August 10, 2004, indicating he suffered from pain in his right knee earlier that year in February to March, Lopez contends Yellow Roadway knew of a potential industrial injury yet failed to provide him with a claim form or deny the claim. The document also indicates Lopez at some point prior reported the incident to dispatcher Randy Cook and that Lopez received medical treatment for the injury in July 2004. According to Lopez:
“It appears the injury was reported when it happened in February or March 2004 or at the very latest with formal documentation later on August 10, 2004. Regardless, no claim form or denial of the claim had ever been provided.”
Contrary to Lopez’s assertion, Yellow Roadway has provided this court with a “Notice of Denial of Claim for Workers’ Compensation Benefits” dated August 23, 2004. The notice denied Lopez’s claim for a February 1, 2004, injury and advised him of his legal rights to appeal the decision. After noting that Lopez “was a poor historian and his testimony was not relied on to any significant degree in forming a decision in this case,” the WCJ expressly relied upon the August 23, 2004, denial notice and concluded “[t]here is no proof in the record for an earlier reporting of injury.” Finding the denial timely, the WCJ concluded the presumption did not apply and further added:
“Even if a presumption of injury had been applicable to this case, that presumption would have been overcome by written evidence that applicant’s right [knee] injury occurred at home and not in the course and scope of his employment in late June 2004 and not during the alleged time period claimed by applicant.”
The WCJ explained that a medical report from Kaiser Permanente recorded that Lopez sought treatment on June 29, 2004, “after he woke up on a Sunday after drinking ‘12 pegs’ of beer with pain and swelling in the right knee.” Lopez informed Kaiser that he “had never had pain or swelling before.” Accordingly, the WCJ concluded “the injury occurred at home in late June 2004, and thus is not industrial in nature.”
II. WCJ’s Prior Statements
Lopez contends the WCJ’s December 5, 2005, statement in an Order Vacating Submission noting that it “appears that applicant may have sustained injury to his right knee in February or March 2004,” and repeated again in a January 31, 2006, Finding of Fact suggesting “a possible specific injury to Applicant’s right knee, most likely occurring on or about February or March 2004” somehow binds the WCJ and WCAB from reviewing additional evidence and reaching a different conclusion before issuing a final determination. We find no support in Lopez’s contention.
III. Pleadings
Lopez argues that because he filed a March 24, 2006, letter and March 30, 2006, declaration of readiness to proceed seeking to change his pleading to a specific knee injury in February or March 2004, and the WCJ earlier suggested the existence of a possible specific injury during that time, then “an industrial injury must be found.” As Yellow Roadway suggests to this court, Lopez “seems to be confused by his own pleadings.” In the May 19, 2008, Report and Recommendation provided Yellow Roadway, the WCJ expressly stated at the beginning of his analysis that “[t]he issue in this case is whether or not the applicant injured his right knee on an industrial basis sometime during the months of February or March 2004.” Lopez’s contention that the WCJ refused to consider the amended pleadings is not supported by record.
IV. Additional Injuries Resulting from Right Knee Injury
Lopez contends the WCAB should have found additional industrially related injuries because it “is well documented that after surgery to the right knee [he] began to experience difficulties with his lower left extremity, upper extremities, lumbar, and cervical spine.” Finding the WCAB’s decision that Lopez did not sustain an industrial injury to his right knee supported by substantial evidence, we cannot consider whether there were additional related industrial injuries. An underlying compensable injury is a prerequisite to finding secondary injuries as a compensable consequence. (Southern Cal. Rapid Transit Dist. Inc. v. Workers’ Comp. Appeals. Bd., supra, 23 Cal.3d at p. 165.)
DISPOSITION
The petition for writ of review is denied. This opinion is final forthwith as to this court.