Barnes v. WCAB

• Citation: 97 Cal.Rptr.2d 638,2 P.3d 1180,23 Cal.4th 679
• Decision Date: 10 July 2000
• Docket Number: No. S082111.,S082111.
• Court: California Supreme Court
• Parties: Ronnie BARNES, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD, Employment Development Department et al., Respondents.

97 Cal.Rptr.2d 638

23 Cal.4th 679

2 P.3d 1180

Ronnie BARNES, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD, Employment Development Department et al., Respondents.

No. S082111.

Supreme Court of California.

July 10, 2000.

Ronnie Barnes, in pro. per.; Joseph V. Capurro, San Jose; Law Office of Marilee Jones-Cofield and Marilee Jones-Cofield, Los Angeles, for Petitioner.

Joseph V. Capurro and William A. Herreras, Grover Beach, for California Applicants' Attorneys Association as Amicus Curiae on behalf of Petitioner.

Richard A. Krimen, Robert W. Daneri and Don E. Clark, San Francisco, for Respondents Employment Development Department and State Compensation Insurance Fund.

Robert E. Shannon, City Attorney, and Susan C. Oakley, Deputy City Attorney, for Respondent City of Long Beach.

No appearance for Respondent Workers' Compensation Appeals Board.

WERDEGAR, J.

An employee suffers a compensable industrial injury and is granted a precautionary award for future medical care. More than five years later, the employer petitions to terminate its future liability for such care, contending the employee's continuing physical problems are not the result of the original industrial injury. We address in this case whether the employer's petition to terminate its liability for potential future medical care is barred by Labor Code¹ section 5804, which states that "[n]o award of compensation shall be rescinded, altered, or amended after five years from the date of the injury...."

We conclude section 5804 deprives the Workers' Compensation Appeals Board (Board) of jurisdiction over an employer's petition to terminate future liability if the petition is filed more than five years from the date of the injury. The Board retains, however, continuing jurisdiction pursuant to section 5803 to adjudicate an employer's claim that a particular medical treatment is unjustified or not attributable to the original injury.

FACTS

Applicant Ronnie Barnes worked for defendant Employment Development Department (EDD) as an employment claims assistant when, on March 12, 1981, he fell on the job and sustained a compensable industrial injury to his right knee and back. In a June 1, 1982, decision (No. LBO 115442), the Board concluded the injury caused a 6.25 percent permanent disability.² In addition, the Board's decision stated, "[t]he applicant may need further medical treatment and it will be so awarded providing that the applicant first make demand upon the defendant. This does not include treatment for the Paget's Disease." (Underscoring in original.)³

In 1983 or 1984, applicant apparently petitioned to reopen his case for a reason not disclosed in the record and, separately, for compensation for a psychiatric injury. The Board denied both petitions in a joint opinion issued on January 26, 1984, although it assessed a 10 percent penalty against EDD and its insurer, the State Compensation Insurance Fund (SCIF) see State Comp. Ins. Fund v. Workers' Comp. Appeals Bd. (1998) 18 Cal.4th 1209, 77 Cal.Rptr.2d 528, 959 P.2d 1204; § 5814), for an unspecified delay in making payments.

In 1992, applicant claims to have filed a declaration of readiness because EDD allegedly was failing to comply with the award provisionally granting him future medical benefits. (Neither applicant nor the record of proceedings explains the basis for EDD's alleged failure to comply with the provisional award.) The parties thereafter agreed to have applicant examined by an agreed medical examiner (AME). Dr. Earl Feiwell was chosen with applicant's consent.

Dr. Feiwell's November 6, 1995, report concluded that applicant's continuing back and knee pain was not traceable to his 1981 injury. "[Applicant] shows no degenerative changes relative to any of the disc levels. In essence, there is no evidence of any ongoing degenerative problems or suggested problems of injury to any of the lumbar discs as related to that injury of 14 years ago. [¶] What is seen, however, is the Paget's disease that has occurred throughout the sacrum and in the right iliac area and extending down into the ischial tuberosity."⁴ Dr. Feiwell concluded: "[Applicant's] primary lower back problem at this time is related to his Paget's disease and Paget's disease treatment is appropriate. In regard to physical therapy, there is no therapy indicated and certainly none in relationship to the 1981 injury. [U] No medication is particularly indicated relative to the 1981 injury. [¶] As stated, current treatment is most probably related to his Paget's disease and pain resulting from that. I see no basis at this time for any belief that the trauma that occurred in 1981 has resulted in an ongoing problem requiring treatment, or that his present treatment since 1989, could in any way be related to the 1981 trauma." Dr. Feiwell admitted, however, that applicant's voluminous medical records had not yet arrived, so his diagnosis was based on his own observations and discussion with the applicant, and review of the reports of one previous doctor.

Dr. Feiwell prepared a second report on June 17, 1996, after reviewing a "24 inch stack of [applicant's] medical records." After a thorough review of applicant's medical history, including evidence of a back problem that preexisted the 1981 industrial injury, Dr. Feiwell addressed this question: "Is there any further treatment reasonable and necessary to cure or relieve the effects of the applicant's 1981 injury to his right knee and back?" He answered: "I would state absolutely no. This man's only complaint problems are undoubtedly coming from his Paget's disease and this is based on the fact that he has undergone multiple injuries to his body without any described increase in his lower back pain." Further, "[i]t is my opinion that all of the care that is necessary for this man's back and knee is totally related to his Paget's [disease] problems, which are non-industrial and which would be present today, absent any of the industrial injuries described."

Dr. Feiwell was later deposed but did not alter his opinion or conclusions.

On December 15, 1995, EDD and SCIF filed a "Petition to Terminate Liability for Medical Benefits." The petition was based largely on the medical conclusions of Dr. Feiwell's November 6, 1995, report.

A hearing on the petition to terminate liability was held on March 5, 1998, before Workers' Compensation Referee (WCR) Louie. She issued her supplemental findings and order on May 21, 1998, granting EDD and SCIF's petition to terminate their liability for future medical treatment in case No. LBO 115442. In her joint opinion on decision, issued the same day, WCR Louie stated her decision to grant EDD and SCIF's petition to terminate liability was based on Dr. Feiwell's medical reports, and that "any treatment [applicant] currently needs is due to his Paget's disease which affects his hip and left leg."

Applicant sought reconsideration, specifically alleging the WCR's decision violated section 5804's five-year time limit for "rescind[ing], altering], or amending]" an award of compensation. The WCR denied reconsideration, apparently concluding that despite the five-year limitation set forth in section 5804, applicant's original 1982 award of future medical benefits contemplated the Board's continuing jurisdiction over that award, including jurisdiction to hear a petition to terminate liability. The Board also denied reconsideration, citing the reasons stated in the WCR's report as well as a treatise on California workers' compensation law. (1 St. Clair, Cal. Workers' Compensation Law and Practice (5th ed. 1996) Medical Benefits, § 9.9(8)(b), pp. 619-620 (hereafter St. Clair).) The Court of Appeal affirmed, and we granted review.

DISCUSSION

Section 4600 provides in pertinent part that "[m]edical, surgical, chiropractic, acupuncture, and hospital treatment, ... that is reasonably required to cure or relieve from the effects of the injury shall be provided by the employer." (Italics added.) Once an applicant's disability has become permanent and stationary, it may be possible to predict he or she will require medical treatment in the future as a result of an industrial injury, even if there is no present manifestation of symptoms. In such circumstances, the Board can, in addition to a general award of present medical benefits, authorize what is known as a precautionary or provisional award of future medical treatment. (Kauffman v. Workmen's Comp. App. Bd. (1969) 273 Cal.App.2d 829, 838, 78 Cal.Rptr. 620 (Kauffman); see also Fidelity etc. Co. v. Dept. of Indus. Relations (1929) 207 Cal. 144, 277 P. 492 (Fidelity ); Llewellyn Iron Wks. v. Indus. Acc. Com. (1933) 129 Cal.App. 449, 18 P.2d 975; 2 Hanna, Cal. Law of Employee Injuries and Workers' Compensation (rev.2d ed., Tancor, edit., 1999) The Award and Its Enforcement, § 27.01[3], p. 27-7 (hereafter Hanna); 1 Herlick, Cal. Workers' Compensation Law (5th ed. 1999) Medical Treatment, § 4.15, p. 4-13 (hereafter Herlick).) "Under Labor Code, section 4600 the board has power to make awards for ... future medical treatment.... In an appropriate case the board can and should specifically prescribe the medical care and treatment which must be furnished in addition to making a general award." (Kauffman, supra, at p. 838, 78 Cal.Rptr. 620, italics omitted.)

The possibility of open-ended liability for medical treatment, though consistent with section 4600's mandate to employers to pay for medical treatment "to cure or relieve" the effects of an industrial injury, stands in contrast to the legislative concern, expressed in the Labor Code, for "certainty and finality in the determination of compensation benefit obligations." (Nickelsberg v. Workers' Comp. Appeals Bd. (1991) 54 Cal.3d 288, 299, 285 Cal. Rptr. 86, 814 P.2d 1328.) Thus, "`[i]t is important ... that the overall cost of [workers'] compensation insurance ... be ascertainable with reasonable certainty in order that business operations may be...