Marsh v. Workers' Comp. Appeals Bd.

• Decision Date: 28 June 2005
• Docket Number: No. F046106.,F046106.
• Citation: 30 Cal.Rptr.3d 598,130 Cal.App.4th 906
• Court: California Court of Appeals
• Parties: Stanley MARSH, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD, Stanley Bostitch et al., Respondents.

30 Cal.Rptr.3d 598

130 Cal.App.4th 906

Stanley MARSH, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD, Stanley Bostitch et al., Respondents.

No. F046106.

Court of Appeal, Fifth District.

June 28, 2005.

John H. Mitchell Law Corporation, John H. Mitchell, Visalia, and Darin L. Powell for Petitioner.

Law Offices of Richard J. Yrulegui and Stephen B. Roberts, Fresno, for Respondents Stanley Bostitch and Constitution State Service Company.

No appearance for Respondent Workers' Compensation Appeals Board.

OPINION

VARTABEDIAN, Acting P.J.

Stanley Marsh (Marsh) petitions this court to review the lawfulness of an opinion of the Workers' Compensation Appeals Board (WCAB). (Lab.Code,¹ § 5950; Cal. Rules of Court, rule 57.) We are called upon to determine the applicability of the new apportionment provisions enacted by the 2004 workers' compensation reform legislation under Senate Bill No. 899 (SB 899) to a decision pending before the WCAB on reconsideration.

After a workers' compensation judge (WCJ) found Marsh's employer fully liable for Marsh's disability award, the WCAB granted reconsideration and ordered a rehearing to consider the applicability of the new apportionment provisions under SB 899, enacted as urgency legislation 10 days after the WCJ issued the findings and award. (Stats. 2004, ch. 34, § 1.) Agreeing with Kleemann v. Workers' Comp. Appeals Bd. (2005) 127 Cal.App.4th 274, 25 Cal.Rptr.3d 448 (Kleemann),² we conclude the apportionment provisions of SB 899 must be applied to all cases such as Marsh's not yet final at the time of the legislative enactment on April 19, 2004, regardless of the earlier dates of injury and any interim decision.

BACKGROUND

On August 12, 1999, Marsh injured his back while working as a welder for Stanley Bostitch in Visalia.³ In September 2000, the parties stipulated the injury caused Marsh to suffer a 46 percent level of permanent disability based on Dr. Arthur H. Holmboe's agreed medical examination. The stipulation provided Stanley Bostitch would compensate Marsh a total of $40,460, less attorney fees, plus future related medical treatment. A WCJ approved the agreement and issued an appropriate award in March 2001.

In November 2001, Marsh timely petitioned the WCAB to reopen his disability claim by alleging the industrial injury caused new and further disability. (§§ 5410, 5803.) Marsh alleged his primary treating physician removed him from all work activities as a result of a marked increase in back pain. At a February 2004 hearing, the parties submitted the issues of permanent disability, apportionment, and attorney fees on the written record.

On April 9, 2004, the WCJ's findings and award concluded that, in accord with Dr. Holmboe's medical opinion, Marsh's level of permanent disability increased to 70 percent, amounting to $98,095 plus a life pension. (§ 4659.) The WCJ noted that Dr. Holmboe's report "suggests" Marsh's increased disability was caused equally by the industrial injury and by osteopenia⁴ and that Dr. Holmboe "thought" Marsh sustained subsequent compression fractures; however, Stanley Bostitch failed to present supporting medical evidence sufficient to meet its burden of proof in establishing apportionment under section 4663 or former section 4750.5 as then in effect. Accordingly, the WCJ declined to apportion the award and found Stanley Bostitch liable for the full amount of Marsh's 70 percent disability.

On April 19, 2004, 10 days after the WCJ's determination, the Legislature enacted a series of reforms to the workers' compensation system as part of SB 899. Significantly, the Legislature repealed and replaced the apportionment statutes relied upon by the WCJ.

Stanley Bostitch petitioned the WCAB to reconsider the WCJ's decision in light of the new apportionment laws. Over the WCJ's objection, the WCAB granted reconsideration and returned the case to the trial level to consider whether SB 899 should be applied to the WCJ's decision and, if so, whether the new provisions required a different outcome. Preempting the WCJ from readdressing the matter, Marsh petitioned this court for a writ of review, which we granted to examine the applicable effective date of SB 899's apportionment statutes.

DISCUSSION

"`Apportionment is the process employed by the [WCAB] to segregate the residuals of an industrial injury from those attributable to other industrial injuries, or to nonindustrial factors, in order to fairly allocate the legal responsibility.'" (Fresno Unified School Dist. v. Workers' Comp. Appeals Bd. (2000) 84 Cal.App.4th 1295, 1304, 101 Cal.Rptr.2d 569 (FUSD), brackets in original, citing Ashley v. Workers' Comp. Appeals Bd. (1995) 37 Cal.App.4th 320, 326, 43 Cal.Rptr.2d 589; see also 1 Hanna, Law of Employee Injuries and Workers' Compensation (rev.2d ed.2004) § 8.05[1].) "`Generally, an employer is held responsible in the workers' compensation system only for the disability of an injured employee arising from the particular employment with that employer, but not for disability fairly attributable to periods of employment elsewhere or to nonindustrial conditions.'" (FUSD, at p. 1304, 101 Cal.Rptr.2d 569.)

At the time of the WCJ's original findings and award on April 9, 2004, three statutes primarily governed apportionment:

"Two sections, 4750 and 4663, appl[ied] to antecedent injuries. Section 4750 relieve[d] an employer from the burden of compensating an injured worker for disability attributable to a preexisting permanent disability or physical impairment. Section 4663[did] the same when an injured worker's disability is partially attributable to a preexisting disease or condition. The third, section 4750.5, deal[t] with subsequent injuries." (FUSD, supra, 84 Cal. App.4th at p. 1305, 101 Cal.Rptr.2d 569.)

Before the enactment of SB 899, apportionment was "concerned with the disability, not its cause or pathology." (FUSD, supra, 84 Cal.App.4th at p. 1304, 101 Cal. Rptr.2d 569.) Apportioning an employee's level of permanent disability required the WCAB to consider "the open labor market as compared to the worker's age, occupation, nature of physical injury or disfigurement, and ability to be rehabilitated." (Ibid.) Because the statutes focused on disability, an employer could be liable to the full extent an industrial injury accelerates, aggravates, or "lights up" a nondisabling preexisting disease, condition, or physical impairment. (Pullman Kellogg v. Workers' Comp. Appeals Bd. (1980) 26 Cal.3d 450, 454, 161 Cal.Rptr. 783, 605 P.2d 422; Ballard v. Workmen's Comp. App. Bd. (1971) 3 Cal.3d 832, 837, 92 Cal. Rptr. 1, 478 P.2d 937; Franklin v. Workers' Comp. Appeals Bd. (1978) 79 Cal. App.3d 224, 237, 145 Cal.Rptr. 22.)

As part of SB 899, the Legislature repealed sections 4663, 4750, and 4750.5 and enacted new sections 4663 and 4664. (Stats.2004, ch. 34, §§ 33-35.) Under the revised workers' compensation system, "Apportionment of permanent disability shall be based on causation." (§ 4663, subd. (a).) An employer is now only "liable for the percentage of permanent disability directly caused by the injury arising out of and occurring in the course of employment." (§ 4664, subd. (a), emphasis added.)⁵

Citing the law then in existence, the WCJ prefaced the April 9, 2004, findings and award by noting: "In California, apportionment of permanent disability cannot be attributed to causation nor to pathology." The WCJ then appropriately analyzed whether Marsh's disability partially resulted from naturally occurring oesteopenia under section 4663 or unrelated subsequent compression fractures under section 4750.5. Concluding Stanley Bostitch failed to prove either theory with substantial medical evidence, the WCJ found Stanley Bostitch liable for the full extent of Marsh's resulting disability.

Marsh contends the WCAB exceeded its powers by remanding the matter to the WCJ to determine whether SB 899 applied under the express terms of the legislation. Section 47 of SB 899 provides:

"The amendment, addition, or repeal of, any provision of law made by this act shall apply prospectively from the date of enactment of this act, regardless of the date of injury, unless otherwise specified, but shall not constitute good cause to reopen or rescind, alter, or amend any existing order, decision, or award of the Workers' Compensation Appeals Board." (Stats.2004, ch. 34, § 47.)

As an urgency statute, SB 899 became effective immediately upon chaptering on April 19, 2004, "[i]n order to provide relief to the state from the effects of the current workers' compensation crisis at the earliest possible time. . . ." (Stats.2004, ch. 34, § 49.)

Marsh contends the WCJ's April 9, 2004, findings and award assessing full liability against Stanley Bostitch constitutes an "existing order, decision, or award" specifically prohibited from retroactive application of SB 899 under section 47. Marsh asserts the WCJ's reading of the legislation comports with the declared public policy and the constitutional directive for the Legislature to create a workers' compensation system so as to "accomplish substantial justice in all cases expeditiously, inexpensively, and without incumbrance of any character." (Cal. Const., art. XIV, § 4.)

To facilitate this constitutional policy, Marsh asks this court to rely on the WCAB's en banc decision in Scheftner v. Rio Linda School District (2004) 69 Cal. Comp.Cases 1281, 2004 WL 2274744 (Scheftner), decided after Marsh petitioned this court for writ review. Scheftner specifically addressed whether the recent apportionment reforms apply to cases pending at the time of the enactment of SB 899. In Scheftner, the majority of the WCAB commissioners concluded that the legislative prohibition against reopening, rescinding, altering, or amending "any existing order, decision, or award" as a result of the passage of SB 899 encompassed nonfinal interim orders, such as orders closing discovery and submittal orders. (Scheftner, supra, at pp. 1286-1288, ...