Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDINGS; petition for writ of review from a decision of the Workers’ Compensation Appeals Board. James C. Cuneo, Janice Jamison Murray and Neil P. Sullivan, Commissioners. Susan K. Shampanier, Workers’ Compensation Administrative Law Judge. WCAB No. FRE 0220730
William S. Morris, for Petitioner.
No appearance by Respondent Workers’ Compensation Appeals Board.
Adelson, Testan & Brundo and Timothy Jay McCaughey, for Respondents U.S. Security Associates, Inc. and Transcontinental Insurance Company.
OPINION
Before Harris, Acting P.J., Levy, J., and Dawson, J.
Pedro Muna petitions this court for a writ of review from a decision of the Workers’ Compensation Appeals Board (WCAB) concluding he did not sustain an industrial injury. (Lab. Code, § 5950; Cal. Rules of Court, rule 8.494.) Muna contends the WCAB improperly amended a stipulation and that its decision lacked substantial evidence. We find no merit in the arguments and deny the petition.
Further statutory references are to the Labor Code.
BACKGROUND
Muna received a prior permanent disability award for an injury to his back and knees while working for the California School for the Blind on August 15, 1999. He subsequently worked as a security guard for respondent U.S. Security Associates, Inc. (U.S. Security) in San Jose between June 10, 2000 and November 24, 2002. On March 12, 2003, Muna filed the current workers’ compensation claim alleging a cumulative trauma injury to his spine and his upper and lower extremities through his last day of employment with U.S. Security. U.S. Security did not deny liability within 90 days of Muna filing the claim.
References to U.S. Security include its workers’ compensation insurer, Transcontinental Insurance Company, as administered by CNA Claims Plus.
Unlike a specific injury resulting from “ one incident or exposure which causes disability or need for medical treatment,” a cumulative trauma injury results from “ 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.)
Muna filed a declaration of readiness to proceed with the WCAB and the matter proceeded to a mandatory settlement conference (MSC) in August 2004. The minutes of the MSC noted: “ Parties agree: Applicant sustained an admitted CT [cumulative trauma injury] 11/24/02, per LC § 5402. Defendants reserve the right to rebut based on later evidence.”
In November 2004, U.S. Security petitioned to dismiss the action claiming Muna’s injuries arose out of the 1999 injury with the California School for the Blind as reported by its qualified medical examiner, Alice Martinson, M.D., on August 18, 2004. Muna subsequently obtained his own qualified medical evaluation from Ronald J. Fujimoto, D.O. In a report dated June 6, 2005, Dr. Fujimoto concluded “ In my opinion, when considering all the causes of disability, approximately 100 percent was caused as the direct result of his industrial injury of 8-15-99 and approximately 0 percent was caused by factors other than his industrial injuries.” He confirmed his opinion in a July 29, 2005, report after reviewing additional medical records.
At a February 1, 2006, hearing, Muna’s counsel requested time to depose Dr. Fujimoto on the grounds he had been uncooperative as a qualified medical examiner and produced inconsistent medical reports. The workers’ compensation administrative law judge (WCJ) granted the additional discovery at U.S. Security’s expense and consolidated the matter with Muna’s petition to reopen the 1999 award. The parties deposed Dr. Fujimoto on May 18, 2006, and he repeated that he did not believe Muna sustained any additional disability as a result of working for U.S. Security.
On November 21, 2006, following an August 15, 2006, hearing, the WCJ found U.S. Security liable for the cumulative trauma injury because the section 5402 presumption of compensability precluded disputing liability where the employer had not denied the claim within 90 days of filing the claim. The WCJ also noted U.S. Security had not offered any evidence that it even responded or began investigating Muna’s injury within a year.
U.S. Security petitioned the WCAB for reconsideration and Muna did not respond. Reporting to the WCAB, the WCJ explained that section 5402 did not preclude the evidence obtained after 90 days of filing a workers’ compensation claim, but instead found Dr. Fujimoto’s reporting unpersuasive in rebutting the presumption of compensability.
On February 13, 2007, the WCAB granted U.S. Security’s petition for reconsideration and issued an opinion reversing the WCJ. Detailing Dr. Fujimoto’s records, the WCAB concluded U.S. Security “ successfully rebutted the Labor Code § 5402(b) presumption by way of evidence in the record which could not have been obtained with the exercise of reasonable diligence within the 90-day statutory period.” Based on prior WCAB decisions, the WCAB concluded the “ presumption is properly rebutted when applicant’s own evidence proves that applicant’s injury is not compensable.” Muna petitioned the WCAB to reconsider its decision, which the WCAB denied on May 1, 2007.
DISCUSSION
Although broken into four separate issues, Muna raises two primary contentions before this court. He argues the WCAB inappropriately amended the stipulation made between the parties at the MSC, and that insubstantial evidence supported a finding of industrial injury by contending Dr. Fujimoto did not know the cause of Muna’s injury, that the studies he relied upon do not support his findings, and that U.S. Security presented insufficient evidence to meet its burden of proving Muna did not sustain an industrial injury.
As set forth by Muna: “ a. Can the Board amend a stipulation between the parties by making it retroactively applicable? [¶ ] b. Can a medical report be sufficient for denying injury AOE/COE [arising out of and occurring in the course of employment] when the doctor testifies that he does not know the cause of the injury. [¶ ] c. Can a medical report be substantial evidence when the studies relied upon by the doctor do not support his contention? [¶ ] d. Is Defendant’s burden of proof which is necessary to show that an injury is not industrial met by Defendant’s showing that the injury was caused by other factors?”
In reviewing a decision of the WCAB, we are bound by the WCAB’s factual findings if supported by substantial evidence. (Western Growers Ins. Co. v. Workers’ Comp. Appeals Bd. (1993) 16 Cal.App.4th 227, 233.) “ The term ‘ substantial evidence’ means evidence ‘ which, if true, has probative force on the issues.’ ” (Braewood Convalescent Hospital v. Workers’ Comp. Appeals Bd. (1983) 34 Cal.3d 159, 164.) We therefore consider whether substantial evidence, in view of the entire record, supports the WCAB’s award and ensure its findings are not unreasonable, illogical, improbable, or inequitable considering the overall statutory scheme. (Ibid; Western Growers Ins. Co. v. Workers’ Comp. Appeals Bd., supra, at p. 233.) So long as substantial evidence supports the decision, the WCAB “ is empowered on reconsideration to resolve conflicts in the evidence, to make its own credibility determinations, and to reject the findings of the WCJ and enter its own findings on the basis of its review of the record.” (Rubalcava v. Workers’ Comp. Appeals Bd. (1990) 220 Cal.App.3d 901, 908.)
A. The WCAB Did Not Amend the Stipulation
Muna asserts the WCAB amended the stipulation adopted at the MSC providing the parties agreed the section 5402, subdivision (b) presumption of compensability applied, subject to U.S. Security’s right to rebut the presumption “ based on later evidence.” The statutory presumption establishes:
“ 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.” (§ 5402, subd. (b).)
Muna’s contention is unclear. He claims the stipulation was “ compelled” by the presumption of compensability, as well as by section 5502, subdivision (e)(3) providing that discovery generally closes at the time of the MSC.
Section 5502, subdivision (e)(3) provides, in relevant part: “ Discovery shall close on the date of the mandatory settlement conference. Evidence not disclosed or obtained thereafter shall not be admissible unless the proponent of the evidence can demonstrate that it was not available or could not have been discovered by the exercise of due diligence prior to the settlement conference.”
The remainder of Muna’s argument confusingly concludes:
“ The stipulation was current and was not intended to be retroactive. The later evidence described in the stipulation was evidence obtained after the date of the stipulation. Petitioner had no good reason to give up the advantage he had with regard to discovery closure at an MSC which would have prevented the consideration of any reports not available at the MSC. It would appear that a stipulation for the purpose of resolving issues short of trial was not beneficial for Petitioner, and this matter should have been pursued to trial at the time.”
Muna does not specify how the WCAB amended the stipulation and whether he alleges legal error by the WCAB or regret on his part for adopting the stipulation. From the evidence and arguments presented to this court, it appears the WCAB followed the stipulation as contemplated by the parties by presuming Muna’s injury was compensable, but finding the presumption rebutted by later discovered evidence.
Muna may be attempting to argue the WCAB improperly relied upon medical evidence already in existence at the time the stipulation was adopted, such as November 17, 2003, January 5, 2004, and February 13, 2004, reports from his primary treating physician, chiropractor Russell G. Kuwamoto, D.C., or U.S. Security’s qualified medical examination report dated August 18, 2004, from Dr. Martinson. However, such an allegation contradicts a plain reading of the stipulation, which expressly cited section 5402 in reserving U.S. Security’s right to rebut the presumption of compensability “ based on later evidence.” Later evidence within the meaning of section 5402 can only mean “ evidence discovered subsequent to the 90-day period” as expressly defined by the statute, not evidence discovered after the date of the stipulation. Here, Muna filed his claim on March 12, 2003, and the 90-day period under section 5402 therefore ended in mid-June 2003.
We note that Muna makes no attempt to attack the WCAB’s reasoning for considering the medical evidence to rebut the presumption of compensability; he only contends the WCAB improperly amended the stipulation. As the WCAB explained in its first opinion and decision, “ when applicant’s own medical evidence proves that the injury is not compensable, the Labor Code § 5402(b) presumption is properly rebutted. This rule is predicated on the reality that, although a defendant may generally procure its own qualified medical evaluation within 90-days of the applicant’s filing of a claim form, it may not force an applicant to be evaluated by its own qualified medical evaluator or primary treating physician within that time frame. Accordingly, in both Witherall v. Workers’ Comp. Appeals Bd. (1994) 59 Cal.Comp.Cases 1128 (writ denied) and Bowles v. Workers’ Comp. Appeals Bd. (1995) 60 Cal.Comp.Cases 874 (writ denied), we held that a Labor Code § 5402(b) presumption was properly rebutted when applicant’s own medical evidence showed that the injury claimed was not compensable, even when applicant’s medical evidence was obtained after the 90-day period after the applicant’s filing of a claim form.” Muna does not challenge the rule established by these cases and we therefore do not address their merits.
B. Substantial Evidence
Muna’s remaining contentions effectively allege substantial evidence fails to support, and U.S. Security failed to meet its burden of proof, that he did not sustain a work-related injury. We find overwhelming evidence supporting the WCAB’s decision.
We preliminarily observe that Muna never presented any medical evidence affirmatively demonstrating he sustained an industrial injury with U.S. Security. He instead relies on the presumption of compensability under section 5402, which shifted his burden of proving an industrial injury onto the employer to rebut the presumption “ only with evidence discovered after the 90-day period.”
Both Muna’s primary treating physician and his qualified medical examiner agreed that Muna’s current level of disability was the result of the prior industrial injury with the California School for the Blind. Dr. Kuwamoto reported on November 17, 2003:
“ Mr. Muna continues to report exacerbated pain and stiffness in his lower back and left leg. He also reports pain in his left knee. He appears to have suffered from a hyperextension sprain and strain injury of his lower lumbar spine, with associated myofascial pain. He also sustained an injury to his left knee. Both injuries and his resulting disability are the result of his [prior] 8-15-99 AOE/COE injury.”
Similarly, Dr. Fujimoto reported on June 6, 2005:
“ Given the medical records available for review, the history as told to me by the patient, and absent any evidence to the contrary, his findings are consistent with the injuries claimed and are the result of his [prior] industrial injury of 8-15-99. There is nothing in the medical records in my opinion to support a cumulative trauma injury through 11-24-0[2], nor in my opinion is there significant medical evidence to support new and further disability with respect to his 8-15-99 injury.
“ In my opinion, and given the medical records available for review, his low back problem has followed a typical course for a patient with a chronic low back injury. Patients with chronic low back symptoms fluctuate in intensity and frequency, depending upon their level of physical activities.”
On July 29, 2005, Dr. Fujimoto confirmed his opinion, reporting that “ Review of the additional medical records does not change my diagnostic impression or conclusions regarding my previous reports of 6-6-05.”
Apparently unconvinced by Dr. Fujimoto’s two reports, Muna’s counsel sought additional time for discovery and deposed the physician on May 18, 2006. Dr. Fujimoto explained that Muna suffered from cervical myelopathy due to “ [a]ge, genetics, not trauma.” He added that the most recent studies indicated that 75 percent of degenerative disc disease in the cervical and lumbar spine is genetic, and the other 25 percent is unknown. After a somewhat heated exchange between Muna’s counsel and Dr. Fujimoto, the physician explained that the most recent relevant studies demonstrated identical twins separated at birth with significantly different physical activity levels in employment nevertheless suffered similar levels of degenerative disc disease of the neck and spine. Dr. Fujimoto conceded that “ some excessively difficult physical jobs,” could exacerbate Muna’s condition, but he did not consider Muna’s employment with U.S. Security such position.
Muna contends Dr. Fujimoto’s opinion contradicts the very study he recites, pointing to the following excerpt as an example:
“ Physical loading associated with upright postures and normal everyday life appears to affect disc degeneration, as suggested by substantially greater findings at the lower lumbar discs when compared with the upper lumbar region, but specific occupational and sport exposures appear to have minor additional effects.” (Lippincott, Williams & Wilkins, Inc. (2004) Lumbar Disc Degeneration: Epidemiology and Genetic Influences, p. 2688.)
Contrary to Muna’s suggestion, the above passage confirms Dr. Fujimoto’s opinion that employment has a minor effect on degenerative disc disease. Given that Muna was unable to describe any incidents of injury or physical exertion while working for U.S. Security, Dr. Fujimoto’s opinion appears a reasonable interpretation of the study.
Muna also dismisses the relevance of the medical reporting submitted by U.S. Security. Dr. Martinson’s August 18, 2004, qualified medical examination report concluded that “ Nothing in [Muna’s] history, physical examination, and medical records suggests that his cervical disc disease, lumbar disc disease, or left knee arthritis have been in any way materially affected by his period of employment with U.S. Security Associates.”
Here, all of the examining physicians unequivocally opined that Muna’s injuries and disability were unrelated to his employment with U.S. Security. Accordingly, we conclude U.S. Security met its burden of proof in rebutting the presumption of compensability.
DISPOSITION
The Petition for Writ of Review, filed June 1, 2007, is denied. This opinion is final forthwith as to this court.