Genlyte Group, LLC v. W.C.A.B.

• Decision Date: 03 January 2008
• Docket Number: No. B198100.,B198100.
• Citation: 69 Cal.Rptr.3d 903,158 Cal.App.4th 705
• Court: California Court of Appeals
• Parties: GENLYTE GROUP, LLC, and St. Paul Travelers, Petitioners, v. WORKERS' COMPENSATION APPEALS BOARD and Maria Zavala, Respondents.

69 Cal.Rptr.3d 903

158 Cal.App.4th 705

GENLYTE GROUP, LLC, and St. Paul Travelers, Petitioners, v.WORKERS' COMPENSATION APPEALS BOARD and Maria Zavala, Respondents.

No. B198100.

Court of Appeal, Second District, Division 7.

January 3, 2008.

Parker, Kern, Nard & Wenzel and Jeffrey Lemasters Tahir for Petitioners.

Law Offices of Moga & Hurley and Michael J. Hurley for RespondentMaria Zavala.

No appearance for Respondent Workers' Compensation Appeals Board.

PERLUSS, P.J.

As part of its 2004 comprehensive reform of the workers' compensation laws, the Legislature required a change in the schedule by which permanent disability is rated.Labor Code section 4660, subdivision (d)(section 4660(d)),¹ provides the new schedule applies to all compensable claims arising on or after January 1, 2005, as well as to compensable claims arising before January 1, 2005"when there has been either no comprehensive medical-legal report or no report by a treating physician indicating the existence of permanent disability, or when the employer is not required to provide the notice required by Section 4061 to the injured worker."

Must a comprehensive medical-legal report or treating physician's report state the injured worker's condition has reached permanent and stationary status to indicate the existence of permanent disability within the meaning of section 4660(d)?Neither the plain meaning of the statutory language nor the legislative history of section 4660(d) supports that conclusion, which would be at odds with the general mandate to construe workers' compensation statutes liberally in favor of extending benefits to injured workers.(§ 3202.)Accordingly, we reject Genlyte Group, LLC's contention the Workers' Compensation Appeals Board(WCAB) should not have awarded Maria Zavala permanent disability benefits based on the 1997 schedule for rating permanent disabilities that was in effect prior to January 1, 2005 because neither a comprehensive medical-legal report nor a treating physician's report indicated Zavala, injured between 2001 and 2003, was permanent and stationary prior to January 1, 2005.Nonetheless, we annul the WCAB's award and remand the matter for it to determine whether one of the specified medical reports indicated, based on substantial evidence, the existence of permanent disability prior to January 1, 2005.

FACTUAL AND PROCEDURAL BACKGROUND

1.Zavala's Injuries and Treatment

Zavala, an assembler for Genlyte, sustained injuries to her shoulders, upper extremities and right hand at work on December 5, 2001(a specific injury) and from August 2, 2002 through March 14, 2003(cumulative injury).(See§ 3208.1["[a]n injury may be either: (a)`specific,' occurring as the result of one incident or exposure which causes disability or need for medical treatment; or (b)`cumulative,' occurring as 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"].)At the time of Zavala's injuries St. Paul Travelers was Genlyte's workers' compensation insurance carrier.

Zavala obtained medical treatment from orthopedic surgeon Hamid Rahman, M.D., who diagnosed bilateral shoulder sprain with impingement syndrome, lateral epicondylitis, carpal tunnel syndrome and ulnar nerve neuritis.On October 28, 2003 Dr. Rahman performed right shoulder surgery, which included arthroscopic debridement of the rotator cuff tendon, subacromial bursectomy, anterior acromionectomy and excision of the coracoacromial ligament.A similar surgery was performed on Zavala's left shoulder by Dr. Rahman on April 27, 2004.

In a May 28, 2004 report Dr. Rahman requested authorization for bilateral carpal tunnel release and ulnar nerve transposition.In his September 14, 2004 report Dr. Rahman stated, "It is my opinion that permanent disability exists with respect to the patient's bilateral shoulder and bilateral upper extremity injuries, however, I will further determine the extent of permanent disability after further evaluations of the patient's condition"—a finding Dr. Rahman repeated in substantially identical form in an orthopedic reevaluation report dated October 13, 2004, a post-operative evaluation dated October 27, 2004 and a post-operative orthopedic reevaluation dated November 10, 2004.In his 2004 reports Dr. Rahman also indicated Zavala "will more than likely require vocational rehabilitation, but this will be determined after further evaluation."²In addition, Dr. Rahman's reports stated with regard to causation and apportionment, "I conclude that it is medically probable that the patient's disability is solely attributable to the injury of 12/5/01 and continuous trauma injury of 8/2/02-3/14/03, however, these issues will be further addressed at the time of the permanent and stationary evaluation."³

In his report dated October 19, 2005 Dr. Rahman indicated Zavala was now permanent and stationary with work restrictions of no "very heavy lifting" or "strenuous over-head working activities" for the shoulders and no repetitive pushing and pulling and forceful gripping and grasping for the upper extremities.Dr. Rahman reported Zavala was unable to perform her job duties as an assembler and vocational rehabilitation was required.Dr. Rahman also reported permanent impairment for the shoulders and upper extremities under the schedule that went into effect on January 1, 2005, which converted to 30 percent whole person impairment under the applicable charts.

Genlyte obtained a qualified medical-legal evaluation from orthopedic surgeon Brent W. Miller, M-D.In a report dated April 12, 2004 Dr. Miller stated, "The patient was a picture of evolution with her upper extremity problems just getting significantly worse over time.This is a classic presentation....[H]er diagnosis of bilateral upper extremity overuse syndrome has multiple component parts.[¶] ... [¶] Certainly at this point, the patient is not permanent and stationary [and] ... remains temporarily totally disabled pending her additional surgery.The patient will be a qualified injured worker, and will not return to assembly activity as this will only serve to aggravate and further accelerate her upper extremity overuse syndrome."Dr. Miller further reported, "At the present time, the presence of permanent impairment is expected, but rating is uncertain."Dr. Miller also summarized a comprehensive medical-legal report dated May 30, 2003 by Rodney A. Gabriel, M.D., in which Zavala was reported to be permanent and stationary with upper extremity work restrictions and in need of vocational rehabilitation.

In a report dated August 22, 2005, five and one-half months after Zavala's most recent operation, Dr. Miller indicated Zavala was now permanent and stationary.Dr. Miller reported permanent disability for the shoulders and upper extremities under the former schedule and 2 percent whole person impairment under the new, January1, 2005 schedule.Dr. Miller also indicated Zavala was unable to return to her usual and customary job duties and required vocational rehabilitation.After reviewing Dr. Rahman's report of October 19, 2005, Dr. Miller revised the whole person impairment to 4 percent under the new schedule.

2.Proceedings Before the Administrative Law Judge and the WCAB

Zavala and Genlyte proceeded to trial before the workers' compensation administrative law judge (WCJ).The reports from Dr. Rahman and Dr. Miller were received into evidence, and Zavala testified regarding her medical treatment and disability.The WCJ issued her minutes of hearing and summary of evidence on July 10, 2006.The WCJ determined the industrial injuries resulted in 38 percent permanent disability under the former schedule and awarded $30,940 in indemnity.(Genlyte had argued under the new schedule Zavala's adjusted permanent disability was either 6 percent or 12 percent.)The WCJ also found Zavala was entitled to temporary disability indemnity until she became permanent and stationary on October 19, 2005 and denied Genlyte's claim of credit for overpayment of indemnity.In the opinion on decision the WCJ explained the findings and award were based on Zavala's credible and unrebutted testimony and Dr. Rahman's opinion.In addition, the WCJ concluded the former schedule in effect prior to January 1, 2005 applied to Zavala's claim because the April 12, 2004 report by Dr. Miller was a comprehensive medical-legal report within the exception of section 4660(d).⁴

Genlyte petitioned the WCAB for reconsideration, contending, as it had at trial, the new January 1, 2005 schedule should have been used to rate Zavala's permanent disability because Dr. Miller's comprehensive medical-legal report indicated Zavala was not permanent and stationary and, although permanent disability was expected, it did not currently exist as expressly required for Zavala to fall within this exception in section 4660(d).In addition, Genlyte asserted it was owed a $740.31 credit because the parties had stipulated there was a temporary disability indemnity overpayment of $315.92 and a $500 permanent disability advance had been paid.

In the report on reconsideration the WCJ explained the existence of a comprehensive medical-legal report dated prior to January 1, 2005 satisfied the requirement of section 4660(d) and Genlyte had provided no authority for its position the qualifying words "indicating the existence of permanent disability" in the section applied not only to a treating physician's report but also to a comprehensive medical-legal report.The WCJ noted her conclusion was directly supported by a WCAB panel decision on this question.The WCJ also stated credit for Genlyte's alleged overpayments is discretionary under section 4909⁵ and she had determined it would be inappropriate and unfair to Zavala to grant credit in this case because Zavala had not contributed in any way to the cause of the alleged...