Earthgrains Company v. Workers' Compensation Appeals Board, F054600 (Cal. App. 7/3/2008)
| Decision Date | 03 July 2008 |
| Docket Number | F054600 |
| Parties | THE EARTHGRAINS COMPANY et al., Petitioners, v. WORKERS' COMPENSATION APPEALS BOARD and GRAY HANSEN, Respondents. |
| Court | California Court of Appeals |
Original Proceedings; petition for writ of review from a decision of the Workers' Compensation Appeals Board, No. FRE 0231902, James C. Cuneo, Frank M. Brass, and Ronnie G. Caplane, Commissioners. Terry R. Menefee, Workers' Compensation Administrative Law Judge.
Law Office of Jane Woodcock and Jane Woodcock, for Petitioners.
No appearance by Respondent Workers' Compensation Appeals Board.
No appearance by Respondent Gary Hansen.
The Earthgrains Company (Earthgrains) petitions this court for a writ of review from a decision of the Workers' Compensation Appeals Board (WCAB). (Lab. Code,1 §§ 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.
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, 1992.2 All three awards stated Earthgrains would provide further medical care to cure or relieve the effects of the injuries.
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.
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.)
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...
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