Opinion
NOT TO BE PUBLISHED
W.C.A.B. No. SAC 0322261.
DAVIS, Acting P.J.
The Workers’ Compensation Appeals Board (Board) denied the motion for reconsideration of Joan Newlands (employee) without elaboration and adopted the decision of its hearing officer. The decision had concluded that an indication of the existence of a permanent disability did not predate 2005, and therefore the 2005 schedule for rating permanent disabilities applied. (Lab. Code, § 4660, subd. (d).) The employee sought a writ of review challenging this conclusion as being based on a prejudicial finding on an issue outside the scope of the hearing and on a finding of fact without support in the record. We issued the writ, and after plenary review will annul the Board’s adopted decision. (§§ 5950, 5952.)
Hereafter, undesignated section references are to the Labor Code.
FACTS
We draw our facts from the Board’s certified administrative record. They are essentially undisputed.
In the course of her two-and-a-half-month tenure with employer Marriott Vacation International (Marriott) as a switchboard operator, the employee suffered injuries to her “upper extremities, including the elbows and hands,” which were work-related. Marriott, which is an authorized self-insurer (§ 3700, subd. (c)) began paying her temporary disability benefits on January 7, 2003.
Daniel Robertson was the initial primary treating physician (see Cal. Code Regs., tit. 8, § 9785, subd. (a)(1)) for the employee. He performed an “ulnar nerve transposition” on her left arm in January 2003 to correct “cubital tunnel symptoms with ulnar nerve palsy,” and “ulnar nerve transposition . . . and right carpal tunnel release” on her right arm in November 2003. After the initial surgery, he already believed that the employee “will undoubtedly have some permanent defect in her ulnar nerve function on the left side. In addition, I anticipate decreased ability to function in her previous work environment”; after her second surgery, he described her as completely disabled (although he anticipated improvement). In March 2004, he referred her to James Sullivan, a specialist in pain management. In June 2004, he recommended the transfer of the employee’s primary care to Dr. Sullivan, at that point not believing that further surgical intervention was warranted because it would only “exacerbate her ongoing chronic pain complaints[,] which are consistent with a complex regional pain syndrome-type process.” He did not believe that at this point she was maximally medically improved, but offered the opinion that she was “permanently disabled due to bilateral hand dysfunction . . . and thus is not suitable for any specific kind of employment and this again is a permanent work restriction.”
On intake, Dr. Sullivan believed the employee had signs of bilateral complex regional pain syndrome. His initial treatments of the right arm with three injections provided relief from pain and increased blood flow, but he did not think it was practical to continue these treatments for the long term. Dr. Sullivan began the same treatment for the left arm in October 2004. In a November 2004 work-status report, he reiterated his diagnosis of a bilateral complex regional pain syndrome that made her unable to work. He checked a box designating her condition as permanent and stationary, and wrote that radiofrequency treatment might improve her hand function “but I expect only partial return. This treatment is mainly geared for pain control.”
After a “radiofrequency sympathectomy neurotomy” for her right arm in late November 2004, Dr. Sullivan noted in a December 2004 report that the employee had significant improvement in her right arm, but was experiencing worsening carpal tunnel syndrome in her left wrist. As she was not a good surgical candidate because of her complex regional pain problem, he instead would seek to treat it with an injection.
In a January 6, 2005, work-status report, Dr. Sullivan again checked the box describing the employee’s condition as permanent and stationary, noting that the radiofrequency treatment reduced her pain by 30 percent. Following an injection for her left arm, Dr. Sullivan described her condition as fairly stable; “I do not see her condition improving significantly regardless of future treatment . . . . I think we have actually probably established her as being fairly stable . . . .” Nonetheless, in a February 2005 report, Dr. Sullivan contemplated additional treatments (in particular, a spinal cord stimulation) to “reach some stability and actually possibly improve her hand function.”
While the January 2005 work-status report was not materially different from the one filed in November 2004, Marriott sent the employee a notice on January 19, 2005, that it was terminating her temporary disability benefits as of the date of the January 2005 work-status report and would seek a determination of her benefits for permanent disability. (§ 4061.) It cited the designation of her condition as being permanent and stationary in the January 2005 report.
The qualified medical examiner (§§ 139.2, 4062.1) was M. Richard Goldberg. He issued his initial report in July 2003, reserving judgment pending further evaluations. He supplemented his report from time to time after review of the reports of the treating physicians. He reexamined the employee in February 2005. As of the latter date, he did not think she met the criteria for complex regional pain syndrome, and did not think any further surgery on her right arm would benefit her (although he reserved judgment on surgery for the left arm). He thought it “reasonable” to categorize her condition as medically stationary.
In his August 2005 deposition, Dr. Goldberg explained the basis of his opinion regarding the absence of complex regional pain syndrome. He had evaluated her under the four less-strict criteria that prevailed before January 2005 (which was the date of new medical guidelines requiring at least eight of 11 criteria to be present); other than the presence of pain--which she did not experience to the extent ordinarily present with the syndrome--she did not have swelling, changes in her skin or nails, or vasomotor instability. He agreed that her condition was a significant disability that was permanent and stationary (and probably had been permanent and stationary since November 2004), any residual pain having its origin in peripheral nerve problems. That treatments might alleviate her pain would not change his opinion that it did not have its origins in a complex regional pain syndrome. He did not think she would be capable of using gardening tools because of her subjective expectations, not any physiological obstacles. If he learned that she was in fact able to garden, this would not change his mind about her disability but would lead him to discount her reported perceptions of pain.
In March and June 2005, surveillance video was taken of the employee. In the March video, she was walking a dog through snow without visible signs of discomfort. In the June videos on various dates, she was lifting flower pots, wheeling a shopping cart and loading her car, and making “prolonged and vigorous” use of various gardening tools, including a shovel.
In March 2006, Dr. Goldberg issued a supplemental report after viewing these videos. They reinforced his opinion that the employee did not have the pain syndrome, and raised credibility issues regarding her subjective reports of pain. As he explained in a later deposition, however, this did not alter his opinion on the degree of her disability, because the finding of disability is almost automatically warranted after the 2003 surgeries she underwent (under the guidelines existing before 2005 on which he had relied).
Marriott subsequently asked Dr. Goldberg to evaluate the employee’s permanent disability under the 2005 guidelines.
Dr. Sullivan also prepared a report in January 2006 after reviewing the videos. For the first time, he indicated that the employee had “always” told him of “periods of fairly good use alternating with periods of significan[t] amount[s] of pain.” He still “remain[ed] convinced that she has some version of complex regional pain” syndrome.
In its answer to the writ petition, Marriott asserts that this report is not part of the record. However, it appears in the index to the administrative record (among the other Sullivan reports in trial exhibit 1); a copy appears as part of the administrative record; and the hearing officer, in lodging copies of the videos in the event of future need for them, asserted that he would not view them himself because Drs. Goldman and Sullivan had reported on the effect of the tapes on their opinions. That the date of this report is missing from the hearing officer’s typed list of 30-odd dates of reports from Dr. Sullivan (after being included in his handwritten list of dates for the exhibit before trial) can be ascribed to mere clerical error, not an indication that this Sullivan report alone was excluded from the hearing officer’s consideration.
On the question of whether the 1997 or 2005 rating schedule for permanent disability should apply, the hearing officer found in his decision that the pre-2005 opinions of the employee’s treating physicians did not provide substantial evidence of the existence of a permanent disability. The hearing officer found her initial physician’s conclusion that her condition was permanent to be contradicted with his actions in referring her for further treatment with Dr. Sullivan. By the same token, Dr. Sullivan’s November 2004 description of a stationary and permanent disability was at odds with his continuing to seek other treatments for her. “In addition, Drs. Robertson and Sullivan took the [employee]’s complaints at face value, and neither saw the [surveillance] video. There is the additional problem of the AME finding no complex regional pain syndrome while Dr. Sullivan continued to diagnose that throughout 2004. For the foregoing reasons, the reports making the [employee] [permanent and stationary] before 1-1-05 are not substantial evidence.” The hearing officer reserved the issue of the need for treatment because the last report from Dr. Goldberg was over two years old and her other physicians perpetuated the incorrect diagnosis of the complex regional pain syndrome.
In her petition for reconsideration, the employee argued that Dr. Robertson believed she was permanently disabled as of June 2004 because of her lack of hand function, referring her for further treatment only in the management of pain. She similarly argued that the November 2004 report of Dr. Sullivan contemplated further treatment only for pain and he did not believe that anything more than a partial return of hand function was likely even with treatment. She also argued that a finding on the question of whether or not she had a pain syndrome was outside the issues identified before trial (and therefore violated her right to due process), and rested on a material error of fact because it wrongly asserted that neither of her other doctors had seen the surveillance video.
In his recommendation to deny the petition, the hearing officer asserted that the reliance of the treating physicians on the existence of a pain syndrome brought the validity of that diagnosis within the issue of substantial evidence of a pre-2005 status as permanently disabled. He did not expressly respond to the claim of a material error of fact.
It is clear from the context, however, that he meant their pre-2005 reports did not have the benefit of the surveillance videos in diagnosing the presence of the pain syndrome.
DISCUSSION
“As part of its [2004] reform package[,] the Legislature amended section 4660 to require regular revisions of the permanent disability rating schedule.[] A new rating schedule incorporating the American Medical Association Guides to the Evaluation of Permanent Impairment (5th ed.) went into effect on January 1, 2005, superseding the 1997 schedule in effect when [the employee] was injured.” (Genlyte Group, LLC v. Workers’ Comp. Appeals Bd. (2008) 158 Cal.App.4th 705, 715 (Genlyte), fn. omitted.) The new rating schedule applies in all compensation proceedings, even those where the injury occurred before its effective date, except where a comprehensive medical-legal report or a report of a treating physician predating 2005 “‘indicat[es] the existence of permanent disability,’” or where an employer was required to give notice with a final temporary disability payment before 2005 (pursuant to section 4061) of its intentions regarding payment of permanent disability benefits. (Id. at p. 716; State Comp. Ins. Fund v. Workers’ Comp. Appeals Bd. (2007) 146 Cal.App.4th 1311, 1315 (SCIF) [on review, report must provide substantial evidence of the existence of permanent disability]; Energetic Painting & Drywall, Inc. v. Workers’ Comp. Appeals Bd. (2007) 153 Cal.App.4th 633, 639 [requirement to give section 4061 notice does not arise until making final temporary disability payment to employee].)
As Genlyte explains at length, this “‘indicat[ion of] the existence of permanent disability’” is not synonymous with a finding that the disability is “permanent and stationary.” (Genlyte, supra, 158 Cal.App.4th at pp. 719-720.) The term “‘permanent disability’” is one “with historical meaning” in compensation jurisprudence indicating an impairment, while the term “permanent and stationary” is a conclusion in the context of medical rehabilitation that the employee’s medical condition has either reached a point of maximal improvement unlikely to change in the coming year whether treated or not, or has been stationary for a reasonable period of time. (158 Cal.App.4th at p. 719, see id. at p. 710, fn. 3.) The latter is also when the permanent disability can be rated and temporary disability payments end. (Id. at p. 720.) However, nothing prevents a treating physician from indicating the existence of a permanent disability of a yet-to-be-rated extent in a report, and compensation practice and jurisprudence both acknowledge a status of permanent disability that precedes the point when it is “permanent and stationary.” (Id. at pp. 720-722.) Genlyte rejected the contrary conclusion of another court because that opinion disregarded the fact that the Legislature “has repeatedly demonstrated its ability to specify ‘permanent and stationary status’ when that is what it intends,” and that section 4660 is not limited to the final report of a treating physician. (Id. at p. 719 [rejecting Vera v. Workers’ Comp. Appeals Bd. (2007) 154 Cal.App.4th 996, 1006-1007 (Vera)].)
For example, a severed limb is indisputably an indication of a permanent disability from the outset, regardless of when medical treatment of the condition might be completed. (Genlyte, supra, 158 Cal.App.4th at pp. 721-722.)
Costco Wholesale Corp. v. Workers’ Comp. Appeals Bd. (2007) 151 Cal.App.4th 148, 155, reached a conclusion similar to Vera in finding that a report was not substantial evidence of permanent disability because it did not find the condition to be permanent and stationary, but did not provide any analysis on this issue. SCIF noted the issue without resolving it because the report lacked any indication of permanent disability other than in a stray reference. (146 Cal.App.4th at pp. 1314-1315.) The Genlyte court reiterated its holding in Zenith Ins. Co. v. Workers’ Comp. Appeals Bd. (2008) 159 Cal.App.4th 483, 497-498 (Zenith).
As a result, the Board--in adopting the decision of its hearing officer--applied the wrong standard in determining that the reports of Dr. Robertson did not provide an indication of the existence of a permanent disability because he also indicated the need for further treatment. As Dr. Goldberg stated in the course of his deposition, the nature of the surgery of itself would be a basis for finding the employee to have a permanent disability under the standards then prevailing. These opinions otherwise do not suffer from any of the shortcomings that would prevent them from constituting substantial evidence, such as speculation, an inadequate medical history, or conclusory findings devoid of any reasoning. (SCIF, supra, 146 Cal.App.4th at p. 1315.)
The alternative basis for the decision’s rejection of the physician reports is equally flawed. Dr. Robertson did not think that the employee’s hand function was likely to improve; the only point of further treatment was management of pain. Dr. Sullivan’s reports are also focused on continued treatment for the purpose of pain management, not improved hand function (although they held open the possibility of some improvement). That the two physicians may have wrongly given credence to the employee’s self-reported pain in light of the surveillance videos, or found the presence of a pain syndrome even in the absence of any indicia other than the reported pain, does not detract from their identification of an underlying impairment in function of some unspecified degree. The decision does not provide any basis for disregarding the identification of this impairment in function in the reports merely because of the mistaken reliance on subjective pain experience, particularly since the qualified medical examiner--the only other evidence--later concurred that the employee was probably permanently disabled before 2005.
It is questionable whether the report of Dr. Robertson in fact diagnosed the presence of the pain syndrome, as it simply stated that her complaints were consistent with the pain syndrome.
We therefore must annul the decision and remand the matter for the Board’s reconsideration of these physician reports in light of our discussion, as it is not for this court to determine in the first instance whether, shorn of mistaken interpretive filters, they adequately indicate the existence of a permanent disability, as likely as that may seem to us. (Zenith, supra, 159 Cal.App.4th at p. 499.) Given the remand, we do not have any reason to reach the employee’s claim that the decision improperly reached the issue of whether she in fact has the pain syndrome, as this may not be the focus of the decision on remand in reevaluating the reports or may be properly brought within the scope of the further proceedings.
DISPOSITION
The decision of the Board is annulled, and the matter is remanded with directions to reconsider the evidence in a manner consistent with this opinion. The employee shall recover costs.
We concur: MORRISON, J., CANTIL-SAKAUYE, J.