Opinion
No. B160131.
7-22-2003
STATE COMPENSATION INSURANCE FUND, Petitioner, v. WORKERS COMPENSATION APPEALS BOARD, CALIFORNIA INSURANCE GUARANTEE ASSOCIATION et al., Respondents.
Richard A. Krimen, Chief Counsel, Robert W. Daneri, Assistant Chief Counsel and Don E. Clark, Senior Appellate Counsel for Petitioner. Neil P. Sullivan and Vincent Bausano, for Respondent Workers Compensation Appeals Board.
Respondent Narciso Rodriguez injured his back and both knees due to cumulative trauma while employed by Montebello Container (MC). The Workers Compensation Appeals Board (Board) found Rodriguez sustained two separate periods of cumulative trauma-September 28, 1998 through September 29, 1999, and January 24, 2000 through June 30, 2000. HIH America/California Insurance Guarantee Association (CIGA) insured MC from March 7, 1998 to March 7, 2000, and would be liable for all disability due to the first period. State Compensation Insurance Fund (SCIF) insured MC from March 7, 2000-June 30, 2001 and would be liable for all disability due to the second period as CIGA has no liability when there is other insurance available. SCIF petitions for review of the Boards order contending there was no substantial evidence of two separate periods of cumulative trauma as Rodriguez was receiving ongoing medical treatment. We agree, annul the order and remand for further proceedings in accordance with this opinion.
Labor Code section 3208.1 defines cumulative trauma as "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." Liability for cumulative injury claims shall be limited to those employers who employed the employee during the period of one year "Immediately preceding either the date of injury, . . ." (Lab. Code, § 5500.5, subd. (a).) All further statutory references are to the Labor Code unless otherwise indicated.
HIH America is in liquidation. California Insurance Guarantee Association (CIGA) is the successor in interest and appeared on HIH Americas behalf.
Pursuant to Insurance Code section 1063.1, subdivision (c), subsection (9), CIGA does not cover "any claim to the extent it is covered by any other insurance . . . ." (Ins. Code, § 1063.1, subd. (c)(9); Industrial Indemnity Co. v. Workers Comp. Appeals Bd. (1997) 60 Cal.App.4th 548, 559.)
FACTUAL AND PROCEDURAL BACKGROUND
Rodriguez was taken off work by his treating doctor from October 1999 to January 24, 2000, due to cumulative trauma injuries (arthritis) to his knees and back. From January 24, 2000 to June 30, 2000, Rodriguez returned to work and worked full duty "to the extent that he could." "The employer did not offer modified duties, and he was expected to do his regular work." Rodriguez testified that he treated up to the day he returned to work, January 24, 2000, and his symptoms worsened during the last six months of his employment.
Rodriguez continued to seek treatment after January 24, 2000. Dr. Kim reported in medical history: "Due to ongoing symptoms of his knees and lower back, the patient traveled to Mexico and was examined by two knee specialists. They performed examinations and x-rays were obtained. [P] In February of 2000, Mr. Rodriguez transferred his care from Dr. Perez to Dr. Arturo Lopez. An examination was performed and x-rays were taken. He continued working full duties. In March of 2000, Dr. Lopez referred [Rodriguez] to Dr. Bohr."
Dr. Bohr saw Rodriguez on March 31, 2000, and noted Rodriguez had been taking the medication, Celebrex, which did not help. He injected the knees to see if that would help and scheduled a return visit. Dr. Bohr saw Rodriguez again on April 25, 2000. Dr. Bohr noted Rodriguez received only two weeks relief from the injections and recommended total knee replacements. Dr. Bohr took Rodriguez off work again on June 30, 2000. In July 2000, Rodriguez underwent surgery to replace both knees. In August 2000, Rodriguez began treating with his current treating doctor, Dr. Steiger.
With regard to the date of injury, Dr. Steiger generally referred to a specific injury occurring on July 15, 1999.
In his last report Dr. Steiger made notation, without further comment, of two cumulative trauma periods before and after Rodriguez returned to work. This report was prepared in response to a request to apportion liability because there were two insurers. SCIFs medical expert, Dr. Kim, referred to only one cumulative trauma period of July 5, 1999 to July 5, 2000, also without further discussion.
The first report from Dr. Steiger on August 18, 2000, indicated a cumulative trauma injury from July 5, 1999 to July 5, 2000. In a February 22, 2001 disability status report, Dr. Steiger indicated a specific date of injury on July 15, 1999. In a February 22, 2001 permanent and stationary narrative report, Dr. Steiger again indicated a specific date of injury of July 15, 1999 with no discussion of cumulative trauma. Under the heading "Causation," he stated, "This patient as a result of the work activity which occurred on July 15, 1999 has sustained injury of the back and both knees." In a supplemental report of March 21, 2001, Dr. Steiger indicated a date of injury of May 29, 1981 and after review of additional treatment records stated he had not changed his opinion of February 22, 2001. In a September 6, 2001 report, Dr. Steiger stated that there was nothing new to report.
CONCLUSION
The record does not reflect substantial evidence to support finding two cumulative trauma periods. The medical experts and the Board did not take into account that Rodriguez apparently worked within self-imposed limitations from January to June 2000, and that he continued to obtain medical treatment throughout that period. Whether this is sufficient for Western Growers to apply can only be determined after the medical experts have reviewed the applicable legal constructs and commented on the salient facts.
DISPOSITION
The Boards order denying reconsideration
The workers compensation judge (WCJ) found two cumulative trauma periods from September 28, 1998 through September 29, 1999 and from January 24, 2000 through June 30, 2000. The WCJ also ordered that, "the record should be developed in that applicants [Rodriguezs] counsel should seek clarification from Dr. Steiger as to the development of the applicants disability due to at least two periods of cumulative trauma rather than a specific injury. Defendants [SCIF] are to seek clarification from Dr. Kim as to the level of the applicants disability and apportionment of disability between periods of a cumulative trauma, if any."
SCIF filed a petition for reconsideration contending the WCJ should not have made a determination as to the dates of injury or the apportionment of liability until the parties obtained the supplemental evidence, citing Western Growers Ins. Co. v. Workers Comp. Appeals Bd. (1993) 16 Cal.App.4th 227.
The Board denied the petition and found that substantial evidence supported the finding based on Rodriguezs testimony, the medical report of Dr. Steiger dated November 12, 2001, and implicitly on Dr. Kims cumulative trauma period because it included dates before and after the return to work period.
SCIF sought review by this court. We asked the Board for further briefing on whether Dr. Steigers report constituted substantial evidence of two cumulative trauma periods. The Board essentially reiterated its opinion.
DISCUSSION
1. Standard of Review
The appellate court is obliged to review the entire record to determine whether there is substantial evidence to support the decision. (LeVesque v. Workmens Comp. App. Bd. (1970) 1 Cal.3d 627, 637.) Factual findings are not supported by substantial evidence when based on inferences that cannot be fairly drawn from the evidence or when based on evidence that lacks probative force. (Insurance Co. of North America v. Workers Comp. Appeals Bd. (1981) 122 Cal. App. 3d 905, 910, 176 Cal. Rptr. 365.)
2. No Substantial Evidence Supports Two Cumulative Trauma Periods
In Western Growers, the court held that continuing treatment between two periods of temporary disability constituted one cumulative trauma injury. The injured worker had work-related recurrent depression for which he was institutionalized in June 1985. He returned to work in July 1985 with ongoing therapy. In 1991, he was again hospitalized. The court found the date of injury to be 1985: that was when the employees disability first manifested itself, the employee had knowledge his injury was work-related, and the employee commenced a continuing course of treatment. As a result, the insurer in place June 1984 to June 1985 was held liable.
In this case the Board relied on Aetna Cas. & Surety Co. v. Workmens Comp. Appeals Bd. (1973) 35 Cal. App. 3d 329, 110 Cal. Rptr. 780 (Coltharp). Applying section 3208.2, the court considered whether during a period of cumulative injury, when there are separate traumatic injuries to the same part of the body, separate applications must be filed for each traumatic episode and also for the cumulative period. Coltharp sustained ongoing cumulative trauma from 1947 to 1969 due to an arduous job with the same employer. In 1969, Coltharp also sustained two separate incidents requiring hospitalization. The first, in March, was back strain simply from bending over. He was hospitalized for seven or eight days and received medication and physiotherapy. He returned to work in April. In August, he slipped in some grease and fell flat on his back. He was hospitalized that night and underwent back surgery on the fifth lumbar disc. He never returned to work.
Section 3208.2 provides: "When disability, need for medical treatment, or death results from the combined effects of two or more injuries, either specific, cumulative, or both, all questions of fact and law shall be separately determined with respect to each such injury, including, but not limited to, the apportionment between such injuries of liability for disability benefits, the cost of medical treatment, and any death benefit."
Although the slip and fall appeared to be a specific incident, Coltharps physician found it was an exacerbation of the ongoing cumulative trauma because the fifth disc had been long known to be degenerated and Coltharp had already had two prior surgeries on different discs. The court, therefore, found two separate cumulative trauma periods in 1969, one from January to April 1969 and the second beginning in August 1969.
The facts of Coltharp and Western Growers are very similar however there is one distinct difference, in Western Growers the employee had continuing medical treatment after returning to work from the first injury.
3. Dr. Steigers reports are not substantial evidence of two separate cumulative trauma injuries
Dr. Steigers report stating two cumulative trauma periods does not explain how he arrived at that conclusion. Dr. Steigers previous reports over a two-year period indicate a variety of dates of injury, most commonly, a specific date of injury on July 15, 1999. In the November 12, 2001 report, which indicated two cumulative trauma injuries from January 1, 1995 to September 28, 1999, and January 24, 2000 to July 5, 2000. Dr. Steiger stated, "this patient was working for the same employer in doing the same job tasks for both of the above occurred with continuous trauma. The only thing different about the two periods is the insurance carrier. For this reason, I am being requested to apportion between the two periods of continuous trauma. The only reason why I am going to do that since the patient is doing the same job task with the same employer is to use the number of days involved. Period January 24, 2000 to July 5, 2000 was the period of 5-1/2 months and the period from January 1, 1999 through September 28, 1999 was the period of approximately ten months. [P] For the apportionment, it will be 2/3s to the period of January 1, 1995 [sic] and September 28, 1999 and 1/3 to the period of January 24, 2000 to July 5, 2000."
Section 5412 requires a concurrence of disability and knowledge of work relatedness. Thus, the potential for the date of injury being 1995 was obviated when the WCJ found Rodriguez did not suffer disability until he was taken off work in October 1999.
Dr. Steiger did not discuss the treatment received by Rodriguez after he returned to work. Moreover, Dr. Steiger also believed Rodriguez returned to working full duties, not just "to the extent he could." A physicians opinion based upon a misunderstanding of applicable legal standards or the relevant facts cannot constitute substantial evidence to support the Boards determination. (City of Santa Ana v. Workers Comp. Appeals Bd. (Taylor) (1982) 128 Cal. App. 3d 212, 180 Cal. Rptr. 125.) Further, Dr. Steigers opinion was in response to a direct request to assess liability between the insurers. His response is not objective and does not reflect any medical reasoning to support finding two cumulative trauma periods.
4. Dr. Kims report is not substantial evidence of two separate cumulative trauma injuries
Dr. Kims report referred to the date of injury as July 5, 2000 and stated, "Mr. Narciso Rodriguez presents to my office today for evaluation of claimed injuries dating July 5, 1999 to July 5, 2000 . . . ." Dr. Kims statement is not susceptible to the interpretation that it is an implicit finding of two separate cumulative trauma injuries (Riskin v. Ind. Acc. Com. (1943) 23 Cal.2d 248, 144 P.2d 16), since the period is simply a restatement of the period of injury Rodriguez initially alleged. Dr. Kim did not discuss cumulative trauma and was not apprised of the significance of the fact that Rodriguez continued to seek and obtain medical treatment after he returned to work. Also, Dr. Kim was not apprised of Rodriguezs testimony that he only worked full duty to the extent he could. is annulled. The matter is remanded for hearing and the taking of further evidence in accordance with this opinion.
Rodriguez initially claimed cumulative trauma to his knees and low back from July 5, 1999 to July 5, 2000. He later amended the claim to allege cumulative trauma from January 24, 2000 to July 5, 2000 and also filed a new claim alleging another cumulative trauma injury from January 1, 1995 to September 28, 1999.
We concur: COOPER, P. J., RUBIN, J.