Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDINGS; petition for writ of review from a decision of the Workers’ Compensation Appeals Board. Alfonso J. Moresi, Ronnie G. Caplane and William K. O’Brien, Commissioners. Keigo Obata, Workers’ Compensation Administrative Law Judge. WCAB No. FRE 0131884
Law Offices of Jane Woodcock and Jane Woodcock, for Petitioners.
No appearance by Respondent Workers’ Compensation Appeals Board.
Mitchell & Powell and Darin L. Powell, for Respondent Carmen Sollars.
OPINION
Before Vartabedian, Acting P.J., Gomes, J., and Hill, J.
Target Stores (Target) petitions for a writ of review disputing a decision of the Workers’ Compensation Appeals Board (WCAB) concluding that a 1994 stipulated award for further medical care contained a clerical error and that, regardless of the error, Target was estopped from terminating medical benefits it had been providing a former employee for over 11 years. (Lab. Code, §§ 5950, 5952; Cal. Rules of Court, rule 8.494.) Finding the WCAB’s decision based on substantial evidence contained in the record, we will deny the petition and grant Sollars’s request for attorney fees.
Further statutory references are to the Labor Code unless otherwise stated.
BACKGROUND
Carmen Sollars worked as a stock clerk for Target in Visalia on May 11, 1991, when a storage band broke as she was lifting heavy boxes from a top shelf. She sought treatment on May 14, 1991, with David T. Tenn, M.D., who diagnosed her with right elbow and wrist strain. Sollars filed a workers’ compensation claim form that day with Target indicating she “pulled muscles in [her] arm” and Sollars’s attorney submitted an undated “Information Request Form” to Target seeking medical records regarding the injury to Sollars’s “Right Elbow and Arm.” Sollars stopped working for Target in June 1991 and began working as a receptionist with Sierra Medical Group.
Dr. Tenn referred Sollars to Gregory Y. Chang, M.D. Dr. Chang reported on August 15, 1991, that Sollars “denies any neck pain or any shoulder pain,” although Sollars did not recall making such a statement. Sollars also failed to mention any neck pain during a neurosurgery evaluation with Thomas E. Hoyt, M.D. on October 8, 1991. However, Sollars began treating at Physical Medicine & Rehabilitation Associates, with Dinesh Sharma, M.D., who reported on October 28, 1991, that Sollars “continues to have complaints of pain in the right elbow both medially and laterally, the right shoulder laterally and the right shoulder girdle in the supraspinatus muscles with occasional pain in the neck region as well.” (Emphasis added.)
Sollars submitted to a neurological Agreed Medical Evaluation (AME) with Fredric H. Newton, M.D., on November 16, 1992. He reported on December 8, 1992, that Sollars stated she left Target because the store had cut her hours and due to her physical limitations. Dr. Newton also recorded that Sollars was able to perform office duties, “despite persistent right upper extremity and neck pain.” Dr. Newton summarized that while Sollars initially only felt right elbow and wrist strain, the symptoms became difficult to control and subsequently “extended from the neck to the hand and brought the patient to the attention of a large number of specialists.” Aware of a prior automobile accident involving Sollars and the duties involved in her subsequent employment with Sierra Medial Group, Dr. Newton nevertheless opined her current disability was “solely a direct consequence” of the May 1991 injury at Target.
The parties selected David L. Chittenden, M.D. to serve as Sollars’s AME in orthopedics. In a September 22, 1993, AME report, Dr. Chittenden recorded that, while working at Target, Sollars inadvertently dropped a box which “twisted her entire right arm and pushed at her neck and shoulder area.” He described her pain as shooting from her right elbow down and sometimes shooting up into her neck. He also observed swelling in her neck with diffuse tenderness, and limited flexion. Dr. Chittenden explained he “would rate the patient’s neck, right shoulder and right upper extremity complaints as being continual, minimal to slight at rest, increasing to slight to moderate with activity.”
On May 9, 1994, Sollars’s counsel informed Target’s former third party administrator, Constitution State Service Company, that Sollars rejected Target’s Compromise and Release offer due to her continued medical expenses and instead forwarded a Stipulations with Request for Award (SRA). The SRA, prepared by Sollars’s counsel, provided in paragraph 1 that Sollars injured her “right elbow and arm” on May 11, 1991, while working for Target resulting in a 24½ percent permanent disability with a need for further medical treatment to cure or relieve from the effects of the injury. The SRA added in paragraph 8:
“These Stipulations are based upon the AME report of David Chittenden, M.D., dated 9/22/91 rated as follows:
18.1 (
(25% – 38F – 25 = 24½%
7.3 ( “There is a need for medical treatment per Doctor Chittenden.”
On June 3, 1994, a workers’ compensation administrative law judge (WCJ) approved the SRA. In addition to temporary and permanent disability and future medical care, the WCJ expressly awarded Sollars benefits “[a]s set forth in paragraph 8 of the Stipulations.” Target continued to pay for Sollars’s medical care related to her right elbow, arm and neck.
In various letters issued in 2002 through 2004 and during a change in third party administrators to Sedgwick Claims Management Services, Target advised Sollars’s treating physicians and counsel that it would no longer provide authorization for treatment pertaining to her neck because it was not listed as a covered expense in the SRA and due to a possible overlap with two subsequent injuries. In response, Sollars filed a petition to reopen on June 17, 2005, “pursuant to Labor Code Section 5803 to correct a clerical error.” Sollars admitted the SRA listed only the right elbow and arm, but that the subsequent reference to paragraph 8 and the use of the number 18.1 in the formula referred to the spine and upper extremity. Sollars therefore asked the WCAB to reopen the matter to amend the award to include reference to the neck and to provide “all other and further relief as is deemed proper for petitioner seeking to enforce this award.”
Nearly two years later, on March 15, 2007, the matter proceeded to a workers’ compensation hearing in which Sollars and a Target claims examiner testified. The parties also submitted three more AME reports from Dr. Chittenden, dated November 10, 2003, August 22, 2006, and January 15, 2007, as well as voluminous additional medical reporting.
On June 27, 2007, the WCJ issued an amended Findings and Award concluding that although the WCAB had lost jurisdiction to reopen the matter involving the 1991 injury, good cause existed to grant Sollars’s request to enforce the prior award. The WCJ first agreed with Sollars that the reference to 18.1 in paragraph 8 of the SRA “was the numerical symbol representing a spine injury which includes the neck.” Further relying on Dr. Newton’s and Dr. Chittenden’s medical reporting indicating Sollars sustained a neck injury as a result of the 1991 Target accident, coupled with Target’s conduct in providing such treatment for 11 years, the WCJ concluded “the omission of the ‘neck’ in Paragraph 1 of the Stipulations with Request for Award was a clerical error and that applicant had sustained injury to her neck as well as to her right shoulder and right arm.” As an alternative argument, the WCJ also concluded that a subsequent industrial injury resulted in only minor injury to her neck and Sollars likely would not have entered into a Compromise and Release with that employer had she not already been receiving medical care from Target; thus, Target was “estopped from denying injury to the neck at this point.”
DISCUSSION
Target contends the WCAB erred by awarding Sollars medical treatment for her neck 14 years after her industrial injury and 11 years after the WCJ approved the SRA. Target also argues the WCAB improperly considered Target’s past payment for neck treatment an admission of liability and that it should not have relied upon Dr. Chittenden’s medical reporting lacking substantial evidence. We disagree with Target’s assessment of the case.
I. The WCAB May Interpret and Enforce a Prior Award
In response to Sollars’s Petition to Reopen the 1991 injury claim, the WCJ ruled in an amended Opinion on Decision:
“The five year statute of limitations under Sections 5803 and 5410 has passed for a petition to reopen. No exceptions have been pointed out by []applicant. A petition to reopen is accordingly inapplicable.
“Be that as it may, the substance of applicant’s petition indicates it is a petition to enforce a prior award and there is no jurisdictional time limit on the board to do that.”
The WCJ continued by explaining the stipulated 1994 award specifically applied rating schedule 18.1. According to the WCJ, “Under that rating schedule 18.1 was the numerical symbol representing a spine injury which includes the neck.” The WCJ also noted that both AME physicians, Drs. Newton and Chittenden, reported Sollars sustained neck pain. The WCJ further inferred that Target’s payment for Sollars’s neck treatment for 11 years suggested Target indeed intended to provide such benefits as part of the stipulated award. Based on these facts, the WCJ concluded the omission of the word “neck” from the SRA was a clerical error.
Target does not dispute the finding that the applicable rating schedule 18.1 references a neck injury.
Citing Robinson v. Workers’ Comp. Appeals Bd. (1987) 194 Cal.App.3d 784 (Robinson), Target contends there were no legal grounds for the WCAB to withdraw or set aside the 1994 stipulated award. Robinson explained that a stipulation entered into between the parties may be set aside if “‘“entered into through inadvertence, excusable neglect, fraud, mistake of fact or law, where the facts stipulated have changed or there has been a change in the underlying conditions that could not have been anticipated, or where special circumstances exist rendering it unjust to enforce the stipulation,”’” but not where “‘“there is no mistake but merely a lack of full knowledge of the facts, which ... is due to the failure of a party to exercise due diligence to ascertain them, there is no proper ground for relief.” [Citation.]’” (Id. at p. 791.)
Unlike the present case, Robinson dealt with a stipulation between the parties entered into before it was adopted by the WCJ and incorporated into an award. (Robinson, supra, 194 Cal.App.3d at p. 789.) Moreover, the WCAB here did not withdraw or set aside the stipulations of the parties. Instead, the WCAB appropriately applied its powers to interpret and enforce the 1994 stipulated award.
The WCAB maintains the “inherent power to control its practice and procedure to prevent frustration, abuse, or disregard of its processes.” (Crawford v. Workers’ Comp. Appeals Bd. (1989) 213 Cal.App.3d 156, 165.) Moreover, the WCAB is vested with “continuing jurisdictional over all of its orders, decisions and awards.” (§ 5803.) While the WCAB’s power to alter prior decisions is limited to five years from the date of injury under sections 5410 and 5804, its authority to enforce its awards and to conduct related ancillary proceedings is not time-barred. (Barnes v. Workers’ Comp. Appeals Bd. (2000) 23 Cal.4th 679; Nickelsberg v. Workers’ Comp. Appeals Bd. (1991) 54 Cal.3d 288, 297.)
Section 5803 provides: “The appeals board has continuing jurisdiction over all its orders, decisions, and awards made and entered under the provisions of this division, and the decisions and orders of the rehabilitation unit established under Section 139.5. At any time, upon notice and after an opportunity to be heard is given to the parties in interest, the appeals board may rescind, alter, or amend any order, decision, or award, good cause appearing therefor. [¶] This power includes the right to review, grant or regrant, diminish, increase, or terminate, within the limits prescribed by this division, any compensation awarded, upon the grounds that the disability of the person in whose favor the award was made has either recurred, increased, diminished, or terminated.”
Although Sollars inappropriately labeled her June 17, 2005, WCAB petition as a petition to reopen the prior award pursuant to section 5803, the WCJ, looking to the substance of the request, exercised its powers to control its proceedings and deemed the filing a petition to enforce the prior disability award. Target contends Sollars’s initial “claim form and Information Request Form clearly supports [its] position that the right elbow and right arm were the only body parts accepted as part of the injury of May 11, 1991.” To the contrary, these documents were sent to Target by Sollars at the initiation of the claims process, before the development of a medial record, and carry little weight in demonstrating Target’s liability accepted under the subsequent stipulated award.
II. Providing Medical Treatment was not an Admission of Liability
Target argues its treatment of Sollars’s neck pain over 11 years may not be considered an admission of liability because the payments were made mistakenly. Section 4909 prevents the payment of an injury as being treated as an admission of liability, providing:
“Any payment, allowance, or benefit received by the injured employee during the period of his incapacity, or by his dependents in the event of his death, which by the terms of this division was not then due and payable or when there is any dispute or question concerning the right to compensation, shall not, in the absence of any agreement, be an admission of liability for compensation on the part of the employer, but any such payment, allowance, or benefit may be taken into account by the appeals board in fixing the amount of the compensation to be paid. The acceptance of any such payment, allowance, or benefit shall not operate as a waiver of any right or claim which the employee or his dependents has against the employer.”
Here, however, the WCJ and WCAB did not construe Target’s payments for Sollars’s neck injury an admission of liability, but rather, considered them relevant in interpreting the 1994 stipulated award. In addition to the reference to 18.1 and Dr. Chittenden’s medical evidence tied into the award, the WCJ reasonably inferred from Target’s payments over the years that the parties all understood the SRA to include continuing treatment for Sollars’s neck injury. Target’s payments to treat Sollars’s neck injury were simply taken as a factor in interpreting the original award, not as an admission of liability.
III. Substantial Evidence of Dr. Chittenden’s Reporting
Save Mart lastly contends Dr. Chittenden’s report dated January 15, 2007, lacked substantial evidence. Factual findings of the WCAB must, of course, be based on substantial evidence, that is, relevant evidence that a reasonable mind might accept as adequate to support a conclusion. (§ 5952; Braewood Convalescent Hospital v. Workers’ Comp. Appeals Bd. (1983) 34 Cal.3d 159, 164.)
Reviewing the amended opinion of the WCJ adopted by the WCAB, there is no indication the WCAB relied upon, or even mentioned, any of Sollars’s medical reporting prepared after her 1994 stipulated award. Although Target attempts to bring into consideration conflicting opinions of various physicians to suggest her neck may have been injured by another industrial injury, none of these medical opinions, including that of Dr. Chittenden, carry any relevance to the WCAB’s finding here that the 1994 stipulated award included further medical care for Sollars’s neck. This court only reviews those findings actually made by the WCAB.
DISPOSITION
The petition for writ of review is denied.
Under authority of section 5801, we find no reasonable basis for the petition and remand the cause to the Workers’ Compensation Appeals Board to issue a supplemental award of reasonable attorney fees to counsel for respondent Carmen Sollars based on the services rendered in answering the petition for writ of review. (Crown Appliance v. Workers’ Comp. Appeals Bd. (2004) 115 Cal.App.4th 620.)
This opinion is final forthwith as to this court.