Bussear v. Workers' Comp. Appeals Bd.

• Decision Date: 20 May 1986
• Citation: 181 Cal.App.3d 186,226 Cal.Rptr. 242
• Court: California Court of Appeals
• Parties: Richard BUSSEAR, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD of the State of California; Russell L. Pillard; and State Compensation Insurance Fund, Respondents. AO28282.

Page 242

226 Cal.Rptr. 242

181 Cal.App.3d 186

Richard BUSSEAR, Petitioner, v.WORKERS' COMPENSATION APPEALS BOARD of the State of California; Russell L. Pillard; and State Compensation Insurance Fund, Respondents.

AO28282.

Court of Appeal, First District, Division 1, California.

May 20, 1986.

Isaac Fluss, Law Offices of Isaac Fluss, Santa Rosa, for petitioner.

Gary J. Lee, Krimen, Brodie, Hershenson & Da Silva, State Compensation Ins. Fund, William B. Donohoe, Agency Counsel, WCAB Legal Unit, San Francisco, for respondents.

RACANELLI, Presiding Justice.

PetitionerRichard Bussear(applicant) seeks review of a decision of the Workers' Compensation Appeals Board(Board) denying reconsideration of an order of the workers' compensation judge who in turn had denied applicant's appeal from an order of the Rehabilitation Bureau (Bureau) terminating rehabilitation benefits.¹For the reasons we explain, we annul the challenged decision and remand for further proceedings.

BACKGROUND

Applicant, a 25-year-old working foreman and heavy-equipment operator employed by respondentRussell L. Pillard, dba Red Lava Products, sustained industrial injury on August 24, 1978, when his right arm was caught in the conveyor of a rock crusher.Applicant underwent 18 operations but was left with little functional use of his right arm.After applicant had reached maximum improvement, respondent insurance carrier, State Compensation Insurance Fund (Fund), offered applicant vocational rehabilitation services and assigned a vocational rehabilitation consultant, James C. McGowan, to develop an appropriate plan.

McGowan ultimately developed a Bureau-approved plan to retrain applicant under the provisions of Labor Code section 139.5 to be a class 1 heavy-duty truck driver.We will hold that the retraining of an essentially one-armed injured worker to be a heavy-duty truck driver does not qualify, under the circumstances shown to exist in this matter, as "services reasonably necessary to provide an injured worker with the opportunity to return to suitable gainful employment."(Cal.Admin.Code, tit. 8, § 10003, subd. (f), emphasis added.)

DISCUSSION

Section 139.5 provides for the establishment, within the Division of Industrial Accidents, of a rehabilitation unit, to include appropriate professional staff, with the duty to foster, review, and approve rehabilitation plans developed by a qualified rehabilitation representative of the employer, insurance carrier, state agency, or employee.Section 139.5, subdivision (c), provides: "When a qualified injured worker chooses to enroll in a rehabilitation program, he ... shall continue to receive temporary disability indemnity payments, plus additional living expenses necessitated by the rehabilitation program, together with all reasonable and necessary vocational training, at the expense of the employer or the insurance carrier, as the case may be."

The statutory objective sought to be achieved is to get the injured worker from "the bed to the job" by the provision of appropriate vocational training.(Moyer v. Workmen's Comp. Appeals Bd.(1973)10 Cal.3d 222, 232-233, 110 Cal.Rptr. 144, 514 P.2d 1224.)Furthering the injured worker's rehabilitation subserves the primary purpose of the workers' compensation laws, which is " 'to insure to the injured employee and those dependent upon him adequate means of subsistence while he is unable to work and also to bring about his recovery as soon as possible in order that he may be returned to the ranks of productive labor.By this means society as a whole is relieved of the burden of caring for the injured workman and his family, and the burden is placed upon the industry.'[Citation.]"(Id., at p. 233, 110 Cal.Rptr. 144, 514 P.2d 1224;Los Angeles Unified School Dist. v. Workers' Comp. Appeals Bd.(1984)150 Cal.App.3d 823, 828, 198 Cal.Rptr. 116.)

The record shows that prior to drafting the vocational rehabilitation plan, McGowan was in possession of certain medical reports, including a report by Dr. Hadley dated March 21, 1981, which described applicant's disability as one which "completely precludes the use of the right upper extremity" and recommended rehabilitation training commensurate with a one-armed individual.In a May 6, 1981, report, Dr. Brownstein expressed full agreement with Dr. Hadley's opinion; several months later Dr. Brownstein reported that the "severe functional limitations of the right arm [created] doubt that any useful work could be performed using it."Thus McGowan was aware that the proposed plan would have to take into account the fact of applicant's "essentially ... non-functional right upper extremity."During vocational testing, McGowan learned that applicant had an above-average mechanical aptitude and explored several vocational possibilities with applicant, including truck driving.Applicant, whose educational limitations ruled out certain occupational prospects, expressed interest in truck driving.Applicant believed that with his extensive experience operating heavy equipment, he could continue to operate heavy rigs equipped with power steering and shift controls.Although McGowan had reservations about retraining as a truck driver due to the limitations of applicant's "severe disability" and the potential job discrimination posed by the injury, he resolved his doubts by sending applicant to the United Truck Driving School for training and "evaluation".The supervised training consisted of taking applicant out for a "test drive on the freeway near the school and then off into industrial/warehouse areas where he could complete figure 8's and U-turns."The consultant concluded from the resulting evaluation (based on one and one-half hours operating a diesel-powered tractor trailer rig performing figure 8's and U-turns) that he was "physically capable" of performing that type of work.

In March of 1982, a detailed vocational rehabilitation plan was presented to applicant and submitted to the Bureau by the employer.The plan describes the nature of applicant's "crushing injury," including nerve and tissue damage, and listed the medically diagnosed physical limitations which precluded use of the entire right upper extremity and "fingers' activities involving grasping, lifting, pulling, holding, pushing, carrying or any gross/fine maneuvers of dexterity of fingers of right hand."

The plan as approved by the consultant provided for five weeks of combination classroom and on-the-road truck driving training at United Truck Driving School, the Department of Motor Vehicles test for a class 1 driver's license, ² followed by an additional four weeks of job search assistance.³

Upon completion of the prescribed training and qualification for a class 1 driver's license, applicant continued to receive vocational rehabilitation temporary disability benefits during the ensuing 12 weeks while he diligently sought employment.On May 25, 1982, McGowan reported to the Fund that despite applicant's best efforts, there had been no movement in the labor market that would indicate a job opportunity for him.Two months later, McGowan reported that applicant had been unable to find employment in the depressed labor market and that no further rehabilitation services were in order.He recommended that the case be closed.

On August 10, 1982, the Fund filed with the Bureau a request for case closure (Cal.Admin.Code, tit. 8, § 10004, subd. (e)) on the ground that the rehabilitation plan had been completed, although applicant had been unable to find employment.Applicant's counsel objected that "even in the best of times, there is [no] substantial labor market for a one-armed truck driver," arguing that the Fund's obligation was unfulfilled until applicant had been successfully rehabilitated for suitable occupation.The Bureau's consultant reviewed the vocational reports and notified applicant of her intention to close the case and terminate carrier liability unless other convincing evidence was furnished within 20 days.In reply, applicant's counsel advised he had recently learned that applicant had encountered difficulties during training after driving a four-hour shift, and that the plan was improperly "beyond the employee's physical capabilities."Counsel requested continuance of temporary disability indemnity pending arrangements for a further medical/legal examination due to the onset of symptoms encountered by applicant in favoring his right side causing torsional back strain.

On October 18, 1982, the Bureau rejected applicant's claim of the original plan's inadequacy and issued its decision finding that the Fund had provided the employee with a reasonable opportunity to return to suitable gainful employment by providing substantial vocational rehabilitation services, and that no further services would be authorized.

Applicant renews his argument below, that retraining him as a truck driver does not constitute adequate rehabilitation, that respondents have not discharged their responsibilities, and that he should be afforded a "second" or "real" chance to obtain the full benefit of the remedial statutory provisions.

At the hearing on appeal from the Bureau's closure order, applicant testified that as a result of the injury to his major hand, he had yet to attain a reasonable level of facility using his left hand.He had chosen truck driving, he testified, in the belief it would be easier--in fact experiencing little difficulty during the pretraining evaluation involving only one gear operation--but soon discovered that the work was far more strenuous than anticipated.Applicant stated that he drove only 22 hours during the training course, usually in four-hour shifts.At the end of each shift, he felt exhausted and experienced pain from both his injured arm and back.As a consequence, applicant began to doubt his ability to perform as a working truck driver; however, he neglected to inform his school instructors or the...