Fresno Unified School Dist. v. W.C.A.B.

• Decision Date: 22 November 2000
• Docket Number: No. F034993.,F034993.
• Citation: 101 Cal.Rptr.2d 569,84 Cal.App.4th 1295
• Court: California Court of Appeals Court of Appeals
• Parties: FRESNO UNIFIED SCHOOL DISTRICT, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD and Daniel Humphrey, Respondents.

101 Cal.Rptr.2d 569

84 Cal.App.4th 1295

FRESNO UNIFIED SCHOOL DISTRICT, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD and Daniel Humphrey, Respondents.

No. F034993.

Court of Appeal, Fifth District.

November 22, 2000.

Certified for Partial Publication.^*

Klein, Testan & Brundo, Calabasas, and Jane Woodcock, for Petitioner.

No appearance, for Respondent Workers' Compensation Appeals Board.

Cole, Fisher, Bosquez-Flores, Cole & O'Keefe and C. Jeffrey Fisher, Fresno, for Respondent Daniel Humphrey.

OPINION

DIBIASO, Acting P.J.

In the published portion of this opinion, we construe certain language in Labor Code section 4750.5. We hold, first, that the phrase "unrelated noncompensable injury" means a disabling event which, had it been work-related, would be compensable under the worker's compensation laws, and, second, that the word "solely" was intended to incorporate the existing rules applicable to the apportionment of successive disabilities.

SUMMARY OF PROCEEDINGS BELOW

Respondent Daniel Humphrey was employed as a custodian for petitioner Fresno Unified School District (FUSD) between September 15, 1982, and August 20, 1997. On August 19, 1997, Humphrey sustained an injury to his lower back while moving a heavy freezer. During his employment, he also suffered a cumulative trauma injury to his neck, spine, left minor shoulder and bilateral upper extremities. On August 21, 1997, Humphrey suffered a nonindustrial heart attack. Humphrey did not return to work and, on September 24, 1997, filed two claims for compensation (one for each industrial injury) with respondent Workers' Compensation Appeals Board (WCAB).

FUSD admitted the two work-related injuries. The matter proceeded to trial for a determination of the amount of disability indemnity owed. FUSD claimed Labor¹ Code sections 4750.5, 4750 and 4663 were applicable, requiring apportionment of the disability between the industrial injuries and the nonindustrial injuries (Humphrey's heart attack and two previous automobile accidents.) A trial was held before a Workers' Compensation Administrative Law Judge (WCJ) on June 11, 1999. The WCJ, in an opinion, findings and award filed on November 18, 1999, determined in part that:

1. Humphrey suffered total temporary disability from his industrial injuries between August 21, 1997, and January 1, 1998;

2. Humphrey suffered permanent disability beginning January 2, 1998, to the extent of 71 percent; and,

3. Apportionment, under section 4663 or section 4750.5, to prior disability, to the subsequent heart condition, or to an underlying disease process, was not appropriate.

FUSD filed a timely petition for reconsideration with the WCAB on December 9, 1999. Consistent with normal WCAB practice, the WCJ filed his report on the petition for reconsideration on December 23, 1999, further explaining the award and recommending that FUSD's petition be denied.

On January 12, 2000, the WCAB denied the petition, stating:

"We have considered the allegations of the Petition for Reconsideration and the contents of the report of the workers' compensation administrative law judge ... with respect thereto. Based on our review of the record, and for the reasons stated in said report which we adopt and incorporate, we will deny reconsideration."

Thereafter, on February 16, 2000, FUSD filed a Petition for Writ of Review in this court. On June 23, 2000, we ordered that the writ issue.

STATEMENT OF FACTS

Work Injuries

Humphrey's work as a custodian for FUSD included strenuous physical labor, such as waxing and mopping floors, yard maintenance and moving furniture, dining room tables, book cases, file cabinets and freezer equipment.

It is undisputed that, in the course of his employment, Humphrey sustained two distinct injuries subject to workers' compensation—the cumulative back and neck injury and the back injury that occurred on August 19 1997. The cumulative back injury was manifested by Humphrey's history of complaints about several episodes of lower back pain which gradually worsened through the years. He had suffered periods of temporary disability, sometimes lasting four or five weeks, followed by full recovery. Over the years he learned to "baby" his back more and more. Treatment varied from chiropractic therapy, through care by the "company" doctor, Dr. Sutton, to self-care with heat, rest or Motrin. Orthopedic surgery was discussed and recommended but never performed. As early as 1994, x-rays reflected severe degeneration at multiple disc and facet levels, which Humphrey's neurologist, Dr. Stavropoulos, believed to be cumulative in origin and most likely the result of repeated work injuries sustained by Humphrey as a laborer and custodian.

In addition to his orthopedic injuries, Humphrey was diagnosed as having both bilateral carpal tunnel syndrome and bilateral ulnar neuropathy. Both were determined to be work-related injuries. As a result, Dr. Stavropoulos reported Humphrey would "do poorly with rapid, repetitive motions of the hands, repeated grasping and gripping activities as well as working with his wrists in a flexed position."

Humphrey described his injuries as causing pain in his left shoulder and shoulder blade and down his arm into his fingers. He said the pain, a dull ache, was "pretty frequent," although it "comes and goes." In addition, he said he experienced numbness and tingling in his hands.

Prior Injuries

Before the work-related back injury on August 19, 1997, Humphrey had been involved in two nonwork-related automobile accidents. The first, on August 27, 1994, caused injury to Humphrey's neck, back and both shoulders. He received physical therapy, chiropractic treatment, and a settlement of $15,000. All symptoms were resolved by March 1995, when he was released from medical care. Humphrey missed six to eight weeks of work before returning without restriction.

The second automobile accident, on September 10, 1996, caused injuries to Humphrey's neck, back and shoulder. The accident was relatively minor, with no serious physical damage to Humphrey's vehicle. He missed approximately eight to nine weeks of work. Humphrey was able to return to work without restriction in December 1996 and without any prospective need for surgery. Prior to the 1996 accident, Humphrey had no complaints of symptoms in his back, neck or shoulders. After the accident, he experienced pain in his neck, back and shoulder. The numbness and tingling in his hands started after the September 1996 accident and continued.

On February 14, 1997, Humphrey saw Dr. Brett Sullivan, a chiropractor and an independent medical examiner, in connection with the September 1996 auto accident. Humphrey was still complaining of stiffness, soreness, and decreased movement from his left neck to his left medial scapular region. Dr. Sullivan reported:

"The patient has significant degenerative changes in his cervical spine, along with a blocked vertebrae, which would cause restriction in motion by itself. The lumbar spine was either not examined or was within normal limits. After reviewing the objective findings and the previous symptom complex, it is my opinion [that] Mr. Humphrey sustained, at most, a mild Grade 1 musculotendeness [sic] type of injury as a result of the motor vehicle collision which occurred on 09/10/96. This is based on my current examination findings, the previous examination findings, the mechanism of injury, the subjective complaints and other objective findings."

Dr. Sullivan further opined that Humphrey had sustained a minor injury to his cervical spine and left shoulder, which constituted an exacerbation of a preexisting condition. Dr. Sullivan stated that treatment after November 1, 1996, could not be "substantiated as being curative or beneficial related to the motor vehicle collision that occurred on 09/10/96."

On July 15, 1997, Dr. Stavropoulos stated:

"... that there is preexisting degeneration disk disease with congenital block vertebra as outlined by Dr. Sullivan on cervical spine x-rays report, which probably has been aggravated by his 09/10/96 accident, and is causing increased cervical and left upper extremity discomfort."

On September 4, 1997, Dr. Stavropoulos reported:

"[Humphrey] was advised that although his current symptoms arose out of the 09/10/96 auto accident regarding his cervical and upper extremity pain and paresthesias, his diagnosis is that of severe degenerative disk and facet disease ... cumulative in origin and out of proportion to his age group, probably as a result of cumulative work injuries as a laborer, and particularly for the last 15 years as a custodian."

Heart Attack

Before his August 21, 1997, nonindustrial heart attack, Humphrey had no symptoms, no cardiac history and no cardiacrelated work restrictions. He was hospitalized from August 21 to August 28, 1997. The diagnosis was a small inferior myocardial infarction and coronary artery disease with 100 percent obstruction of the right coronary artery and 90 percent obstruction of the circumflex artery.

On March 1, 1999, Humphrey's cardiologist, Dr. Woo, wrote that Humphrey was limited in what he could do physically as a result of the heart condition and totally disabled and unable to perform any type of physical labor.

Apportionment

Dr. Holmboe, after examining Humphrey and reviewing the records of the previous treating and consulting physicians, stated in his January 13, 1999 report:

"The patient's condition no doubt is permanent and stationary. The case is difficult because of the degree of degenerative change that is seen in the cervical and lumbar areas which probably has its origin not only in cumulative trauma but natural progression of an underlying disease process that is probably part of this man's heredity.

"Complicating this entire scenario is the fact that this man has had nonindustrial auto accidents and a lot of chiropractic treatment for his diseased spine and then an industrial aggravation to his low...