Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDINGS; petition for writ of review from a decision of the Workers’ Compensation Appeals Board. James C. Cuneo, Frank M. Brass, and Ronnie G. Caplane, Commissioners. Terry R. Menefee, Workers’ Compensation Administrative Law Judge, WCAB No. FRE 0231902.
Law Office of Jane Woodcock and Jane Woodcock, for Petitioners.
No appearance by Respondent Workers’ Compensation Appeals Board.
No appearance by Respondent Gary Hansen.
OPINION
Before Vartabedian, Acting P.J., Cornell, J., and Gomes, J.
The Earthgrains Company (Earthgrains) 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.) The WCAB concluded Earthgrains’s former employee, Gary Hansen, timely filed a workers’ compensation claim 34 months after retiring and sustained a 49 percent permanent disability to his knees and spine after accounting for his prior industrial injuries. Earthgrains argues: (1) the applicable statute of limitations barred the claim, (2) the employer did not have knowledge of a cumulative trauma injury, (3) the facts do not support temporary disability, (4) the evidence does not support a permanent and stationary date, (5) the apportionment calculation was not based upon the evidence, (6) the medical record should be more fully developed, and (7) a qualified medical examiner’s report addressing apportionment does not constitute substantial evidence. Stated more succinctly, we view Earthgrains’s petition as questioning whether the claim was timely filed and if substantial medical evidence supports the WCAB’s findings. In finding potential merit in Earthgrains’s claim regarding the permanent and stationary date, but unable to determine the WCAB’s basis for its conclusion, we grant a limited writ of review forthwith as to that issue only and remand the matter for further proceedings to allow the WCAB to reconsider and explain its reasoning in detail.
Further statutory references are to the Labor Code unless otherwise stated.
BACKGROUND
Hansen worked as a route salesperson and supervisor for Earthgrains, formerly known as Rainbow Bread, from 1988 until he retired on or about June 28, 2002. His job required kneeling, squatting, stooping, bending, and lifting as he delivered and stocked bakery products to various stores and markets throughout central California.
While unrepresented by counsel, Hansen accepted three prior stipulated workers’ compensation awards. The first award, approved by a workers’ compensation administrative law judge (WCJ) on July 12, 1989, established Hansen was 7.75 percent permanently disabled as a result of a September 22, 1988, right knee injury. The second and third stipulated awards, both adopted May 1, 1993, indicated Hansen was 10.75 percent and 16.5 percent permanently disabled resulting from low back injuries he sustained on December 14, 1990, and January 28, 1992. All three awards stated Earthgrains would provide further medical care to cure or relieve the effects of the injuries.
The third request for stipulated award form contained a hand-scribbled “16½” percent permanent disability designation overwriting a previously typed figure, while just above the form contained the following typed language: “* 19.25% (DEU #219111) less prior rating of 10.75% (DEU 192770).” Based on the corresponding dollar amount of permanent disability similarly rewritten on the form, the WCJ concluded in a subsequent proceeding that “it appears that the parties agreed that the low back injury of 1/28/92 was in fact being settled based on 16½,” rather than the 8.5 percent suggested by the typed language.
Hansen retired from Earthgrains on June 27, 2002, at the age of 56. Represented by counsel, Hansen filed an Application for Adjudication of his workers’ compensation claim in May 2005 alleging cumulative trauma injury between August 1988 through June 28, 2002, to his knees, spine, and upper extremities “due to repeated stress and strain of employment.”
According to testimony at an April 25, 2007, workers’ compensation hearing, Hansen retired from Earthgrains because Dr. Robert Simons was about to perform a back fusion surgery and the doctor advised he would no longer be able to work. Medical evidence confirms Dr. Simons performed surgery on July 18, 2002, and soon after reported that Hansen was not capable of performing “heavy duty physical work” and that he was “limited to semi-sedentary type of work or positions which would allow him to sit or stand at will.” Earthgrains paid for the procedure on an industrial basis.
On October 17, 2007, the WCJ concluded Hansen’s claim was timely, that Hansen sustained a work-related cumulative trauma injury to his knees and spine through the period ending June 28, 2002, and that Earthgrains owed Hansen temporary disability payments from June 29, 2004, through August 24, 2006. The WCJ also determined Hansen was 49 percent permanently disabled after adjusting for Hansen’s prior injuries. The WCJ expressly found the reporting of Hansen’s qualified medical examiner (QME), Dr. Marvin Lipton, more persuasive than Earthgrains’s QME, Dr. Alan Birnbaum.
After Earthgrains petitioned for reconsideration, the WCJ issued an amendment to the findings and award. Citing clerical error, the WCJ clarified that Hansen was entitled to temporary disability from June 29, 2002, (not June 29, 2004) through August 24, 2006. The WCJ also amended Hansen’s date of injury for the cumulative trauma injury to indicate that it occurred in “May 2005, on or before the date upon which his Application for Adjudication was filed, which was the date upon which there was a concurrence of disability and knowledge by [Hansen] that such disability was caused by his prior employment, within the meaning of LC 5412.” The WCAB thereafter summarily denied the petition for reconsideration based on the reasoning set forth by the WCJ’s Report and Recommendation.
DISCUSSION
Appellate review of a workers’ compensation decision is limited to whether the WCAB acted without or in excess of its powers or whether the order, decision, or award was unreasonable, not supported by substantial evidence, or procured by fraud. (§ 5952, subds. (a)-(d).) We also consider whether the WCAB’s findings of fact support the order, decision, or award. (§ 5952, subd. (e).) We may not conduct a trial de novo, admit evidence, or exercise our independent judgment on the evidence. (§ 5952.) We therefore may not reweigh evidence or decide disputed questions of fact, and instead “must determine whether the evidence, when viewed in light of the entire record, supports the award of the WCAB.” (Keulen v. Workers’ Comp. Appeals Bd. (1998) 66 Cal.App.4th 1089, 1095-1096.)
I. Statute of Limitations
Hansen filed an Application for Adjudication with the WCAB on May 5, 2005, alleging cumulative trauma injury to his knees, spine, and upper extremities through his last day of employment nearly three years earlier on or about June 28, 2002. Filing an Application for Adjudication establishes jurisdiction with the WCAB to initiate proceedings for the collection of workers’ compensation benefits. (§ 5500.) WCAB proceedings must be commenced within one year from the later of either the date of injury or the date the employer last provided temporary or permanent indemnity payments or medical treatment. (§ 5405.)
“For the purpose of establishing the date of injury, section 3208.1 distinguishes between ‘specific’ and ‘cumulative’ injuries.” (Bassett-Mcgregor v. Workers’ Comp. Appeals Bd. (1988) 205 Cal.App.3d 1102, 1109-1110; see also Western Growers Ins. Co. v. Workers’ Comp. Appeals Bd. (1993) 16 Cal.App.4th 227, 234.) A specific injury occurs “as the result of one incident or exposure which causes disability or need for medical treatment,” while a cumulative 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.) The date of injury for a cumulative injury “is that date upon which the employee first suffered disability therefrom and either knew, or in the exercise of reasonable diligence should have known, that such disability was caused by his present or prior employment.” (§ 5412.) For statute of limitations purposes, the date of injury “‘requires concurrence of two elements: (1) compensable disability and (2) knowledge of industrial causation.’” (Bassett-McGregor v. Workers’ Comp. Appeals Bd., supra, 205 Cal.App.3d 1102, 1110.) An employee therefore may file a claim alleging a cumulative injury up to one year after the employee either knew, or should have known, a disability was industrially related.
“Whether an employee knew or should have known his disability was industrially caused is a question of fact.” (City of Fresno v. Workers’ Comp. Appeals Bd. (1985)163 Cal.App.3d 467, 471.) (City of Fresno.) “The running of the statute of limitations is an affirmative defense (§ 5409), and the burden of proving it has run, therefore, is on the party opposing the claim.” (Kaiser Foundation Hospitals v. Workers’ Comp. Appeals Bd. (1985) 39 Cal.3d 57, 67, fn. 8.) While an employer’s burden of proving the statute of limitations has run can be met by presenting medical evidence that an injured worker was informed a disability was industrially caused, “[t]his burden is not sustained merely by a showing that the employee knew he had some symptoms.” (City of Fresno, supra, 163 Cal.App.3d at p. 471, 473.)
Earthgrains contends Hansen’s testimony and medical records demonstrate his claim should be barred as untimely. Earthgrains argues that because Hansen had been treating with Dr. Peter McGann for pain in both knees in 2001 and underwent a left knee replacement on January 3, 2002, Hansen should have known he sustained a new cumulative trauma injury in his left knee at that time. Earthgrains, however, does not point to any specific testimony or medical records demonstrating Hansen knew or should have known his additional knee complaints were work related. As the WCJ noted, the only relevant medical evidence, a September 6, 2001, report prepared by Dr. McGann’s nurse practitioner, suggesting Hansen sustained a new cumulative trauma injury was sent to Earthgrains’s insurer, but never to Hansen. Hansen testified that he did not see any reports with regard to his knee treatment in 2001, and did not recall Dr. McGann informing him that his work at Earthgrains contributed to his then current medical problems.
The WCJ also relied on Hansen’s testimony that he had never heard the term “cumulative trauma” before going to his attorney’s office in 2005. According to Hansen, he expected Earthgrains’s workers’ compensation carrier to take care of his knees, back, and upper extremity complaints as they had in the past. He did not seek the assistance of an attorney until a representative from Earthgrains’s insurer informed him it was “done” with his claim and would not be providing further benefits.
Earthgrains claims that as the employer, it had no knowledge of Hansen’s medical condition, but admits that key medical reports that should have led Hansen to realize he sustained new industrial injuries were sent to its insurer. Earthgrains’s attempt to separate its knowledge from that of its representative administering Hansen’s workers’ compensation claims is unavailing. If, as Earthgrains contends, Hansen’s medical records so clearly identified that he sustained newly recognized cumulative injuries that related to his employment with Earthgrains, then its insurer shared in that responsibility in providing Hansen with a new claim form on behalf of the employer. The failure of Earthgrains’s insurer to acknowledge that it was paying for treatment stemming from a new cumulative trauma injury or injuries not covered by the prior awards undermines its own argument that Hansen similarly should have known.
II. Substantial Evidence
Earthgrains contends substantial evidence does not support the WCAB’s findings of fact as to temporary disability, apportionment, and the permanent and stationary date and that the record instead should be more fully developed. Our review of substantial evidence claims is limited. As long as the WCAB’s findings “are supported by inferences which may fairly be drawn from evidence even though the evidence is susceptible of opposing inferences, the reviewing court will not disturb the award.” (Judson Steel Corp. v. Workers’ Comp. Appeals Bd. (1978) 22 Cal.3d 658, 665.)
A. Temporary Disability
Earthgrains contends that because Hansen retired on June 27, 2002, and subsequently sought union disability and social security benefits, he voluntarily took himself out of the labor market. Earthgrains “does not believe [Hansen] has a willingness to work based on his actions .…”
“Unlike permanent disability, which compensates an injured employee for diminished future earning capacity or decreased ability to compete in the open labor market, temporary disability is intended as a substitute for lost wages during a period of transitory incapacity to work.” (Signature Fruit Co. v. Workers’ Comp. Appeals Bd. (2006) 142 Cal.App.4th 790, 795 (Signature Fruit).) “[I]it would be illogical to award an employee temporary disability as a wage replacement where it is undisputed that there otherwise would not be a wage to replace.” (Id. at p. 802.)
According to Hansen’s testimony, however, “[h]e left his employment because he had a back fusion that was performed by Dr. Simons who told him that he would not be able to work anymore.” A July 23, 2003, report from Dr. Simons following a July 18, 2002, surgery confirmed that Hansen was not capable of performing “heavy duty physical work” and that he was “limited to semi-sedentary type of work or positions which would allow him to sit or stand at will.” According to the WCJ, Hansen also testified he intended to work until age 62. The WCAB’s determination that Hansen’s retirement “was necessitated because of his industrial injuries and related surgical procedures” is supported by uncontroverted evidence.
B. Apportionment
Adopting the WCJ’s recommendation, the WCAB reduced Hansen’s prior stipulated awards from his current 73 percent level of permanent disability and awarded him an apportioned permanent disability rating of 49 percent pursuant to section 4664, subdivision (b). The WCAB did not find any “other factors” to further apportion the award under section 4663, subdivision (c).
Earthgrains argues that Hansen’s admitted physical activities of golfing, volunteering for his church rolling grapes, and helping out at his daughter’s party rental business lifting up to 10 pounds contributed to his current physical condition. Earthgrains also believes Hansen’s medical history supports further apportionment, pointing to Hansen’s age, weight, a high school football injury, and pre-existing spondylolisthesis in the back as other factors that must be considered.
Earthgrains admits, however, that neither Hansen’s nor its own QME found any factors warranting apportionment. Earthgrains instead offers only its own opinion that these factors should have reduced Hansen’s current level of disability. Considering the thorough evaluations and medical reviews provided by both Drs. Lipton and Birnbaum, the WCAB’s refusal to further apportion Hansen’s award is well supported by the medical evidence.
We agree with the WCAB that Earthgrains’s claim the record should have been more fully developed lacks merit, particularly where both parties retained QMEs and where Earthgrains began the trial proceedings by filing the Declaration of Readiness to Proceed. (Telles Transport, Inc. v. Workers’ Comp. Appeas Bd. (2001) 92 Cal.App.4th 1159.)
C. Permanent and Stationary Date
Earthgrains also disputes the WCAB’s determination that Hansen became permanent and stationary on August 24, 2006, based on Dr. Lipton’s QME report. “‘Permanent and stationary status’ is the point when the employee has reached maximal medical improvement, meaning his or her condition is well stabilized, and unlikely to change substantially in the next year with or without medical treatment.” (Cal. Code Regs., tit. 8, § 9785(a)(8); see also Cal. Code Regs., tit. 8, § 10152.) The permanent and stationary date is significant because it establishes when an injured employee becomes eligible for permanent disability, thereby terminating the ability to collect continued temporary disability benefits. (Signature Fruit, supra, 142 Cal.App.4th at p. 802.) “Whether a condition has become permanent and stationary is purely a question of fact to be determined from the evidence.” (Robinson v. Workers’ Comp. Appeals Bd. (1987) 194 Cal.App.3d 784, 792.)
In response to Earthgrains’s argument that the WCAB should have followed the opinion of its QME, Dr. Brinbaum, to establish a March 4, 2004, permanent and stationary date, the WCAB adopted the WCJ Report and Recommendation concluding:
“Dr. Lipton’s QME report was found to constitute substantial medical evidence and to be persuasive. Therefore, it was found that Respondent became Permanent & Stationary for these CT injuries on 8/24/06, in accordance with Dr. Lipton’s findings and opinions. (Ex. 1, dated 8/24/06, pgs 2 & 24)”
Our review of Dr. Lipton’s August 24, 2006, QME report provided with the petition for writ of review, however, does not clearly indicate any permanent and stationary date. Referring to the WCJ’s citations to Dr. Lipton’s report, page 2 makes no mention of permanent and stationary status, and page 24 states in relevant part:
“This is a 61-year-old gentleman, who at this time has had bilateral total knees low back surgery at two levels and a spine fusion. At this point he is over one year post total knee replacement on the right and even more on the left and therefore is permanent, stationary and ratable. I would denote that after his left total knee replacement in January 2002 he, in fact, did go back to work until he retired. The retirement was due to the combination of low back and knees. It will be recalled it gave out on him. The fusion was done at L5-S1 for the Grade I/II spondylolisthesis, nerve root compression, etc., by Dr. Simons in July 2002 and the total knee replacement was done by March 2003 after his retirement. [¶] At this point all of these areas are permanent, stationary and ratable.” (Italics added.)
Other than borrowing from the date of Dr. Lipton’s medical examination, it is unclear to this court from the above passage how the WCAB determined Hansen became permanent and stationary on August 24, 2006. Dr. Lipton appears to simply state Hansen is permanent and stationary, without any indication when he achieved that status. The finding is particularly troubling in light of the evaluator’s suggestion that Hansen is permanent and stationary because “over one year” had past since his surgeries, when in fact it had been nearly three and a half years since his most recent surgery. Further, Drs. McGann, Simons, and Birnbaum all appear to have found Hansen permanent and stationary no later than March 2004.
A decision of the WCAB “shall state the evidence relied upon and specify in detail the reasons for the decision.” (§ 5908.5.) The purpose of section 5908.5 is “to assist the reviewing court to ascertain the principles relied upon by the lower tribunal, to help that tribunal avoid careless or arbitrary action, and to make the right of appeal or of seeking review more meaningful.” (Evans v. Workmen’s Compensation Appeals Bd. (1968) 68 Cal.2d 753, 755.) From the WCAB’s opinion and the evidence provided with the petition for writ of review, this court is unable to determine the WCAB’s basis for concluding Hansen became permanent and stationary on August 24, 2006. Accordingly, we will annul the WCAB’s decision only as to the permanent and stationary date and remand the matter to the WCAB to reconsider and set forth in detail the reasons for its decision.
DISPOSITION
Let a writ of review issue returnable before this court forthwith.
The WCAB’s “Order Denying Reconsideration” is annulled and remanded only as to its finding of fact No. 4 regarding Hansen’s permanent and stationary date and related temporary disability benefits. On remand, the WCAB shall conduct any further proceedings as it deems appropriate to reconsider and set forth in detail its reasoning determining when Hansen became permanent and stationary.
In all other respects, the Petition for Writ of Review is denied.