Milpitas Unified Sch. Dist. v. Workers' Comp. Appeals Bd.

• Court: California Court of Appeals
• Writing for the Court: ELIA
• Citation: Milpitas Unified Sch. Dist. v. Workers' Comp. Appeals Bd., 187 Cal.App.4th 808, 115 Cal.Rptr.3d 112 (Cal. App. 2010)
• Decision Date: 10 November 2010
• Docket Number: No. H034853.,H034853.
• Parties: MILPITAS UNIFIED SCHOOL DISTRICT, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD and Joyce Guzman, Respondents.

187 Cal.App.4th 808

115 Cal.Rptr.3d 112

MILPITAS UNIFIED SCHOOL DISTRICT, Petitioner,

v.WORKERS' COMPENSATION APPEALS BOARD and Joyce Guzman, Respondents.

No. H034853.

Court of Appeal, Sixth District, California.

Aug. 19, 2010.

As Modified Sept. 1, 2010.

Review Denied Nov. 10, 2010.

Bradford & Barthel, Donald R. Barthel, Sacramento, and Louis A. Larres, Fresno, for Petitioner.

Finnegan, Marks, Theofel & Desmond and Ellen Sims Langille, San Francisco, for the California Chamber of Commerce; David M. Skaggs, for Pacific Compensation Insurance Company; Vanessa L. Holton, Chief Counsel, Steven A. McGinty, Asst. Chief Counsel, Jesse N. Rosen, Staff Counsel, for John C. Duncan, Director of Industrial Relations; Saul Allweiss and Michael A. Marks, San Francisco, for California Workers' Compensation Institute and American Insurance Association; Adam M. Cole, General Counsel, Richard G. Krenz, Asst. Chief Counsel, Christopher Citko, Senior Staff Counsel, for Steve Poizner, California Insurance Commissioner, for Amici Curiae In support of Petitioner.

J. Bruce Sutherland and Carla Spencer, San Jose, for Respondent.

Capurro, Rocha & Schmidt and Joseph V. Capurro, San Jose, for California Applicants' Attorneys Association; David Bryan Leonard for California Society of Industrial Medicine & Surgery, Inc., for Amici Curiae In Support of Respondent.

ELIA, J.

In this original proceeding the Milpitas Unified School District (District) challenges a decision of the Workers' Compensation Appeals Board (WCAB or Board) applying Labor Code section 4660 ¹ to the disability evaluation of a District employee. The Board ruled that (1) an employee's impairment may be determined by reference to any applicable portion of the American Medical Association's Guides to the Evaluation of Permanent Impairment, Fifth Edition ( Guides ), and (2) this determination may be used to rebut the rating of permanent disability established by the 2005 Schedule for Rating Permanent Disabilities ("PDRS" or Schedule). This court granted the District's petition for review. We conclude that the language of section 4660 permits reliance on the entire Guides, including the instructions on the use of clinical judgment, in deriving an impairment rating in a particular case. We will therefore affirm the Board's decision.

Background

Guzman worked for the District as a temporary employee beginning in October 2001 and as a permanent employee, a secretary/clerk, fromSeptember 2002 to May 2005. The District was permissibly self-insured for workers' compensation liability; Keenan & Associates was its workers' compensation adjuster.

On November 5, 2003, Guzman's right foot became entangled in some computer wires under her desk, and as she rose and turned away, she fell. Over the following two and a half years, she sought treatment for pain in various locations on her body, as well as for psychiatric symptoms that led to prescriptions for antidepressants. Unsatisfied with the tests and recommendations of her Kaiser Permanente physicians, she turned to her attorney, who referred her to Dr. Fatteh. He diagnosed degenerative disc disease and prescribed physical therapy, a home muscle stimulator (for back spasms), chiropractic, and acupuncture. Gradually, Guzman progressed from modified work hours to an eight-hour workday "with restrictions." A flare-up in May 2005 resulted in Dr. Fatteh's finding of a month-long total disability. On June 1, 2005, Dr. Fatteh noted Guzman's reduction in back and neck pain. While awaiting authorization for her to see a psychologist, she was to remain off work until August 1, 2005.

By September 2005 Dr. Fatteh reported that Guzman had experienced increased neck and low-back pain, and he did not believe she would be able to return to her usual work. He recommended further psychotherapy and vocational rehabilitation, while predicting that Guzman would become "permanent and stationary" within three months.²

Guzman filed her first "Application for Adjudication of Claim" with the Workers' Compensation Appeals Board (WCAB) on February 9, 2004 (Case No. SJO 0244266), and a second application in August 2005 (SJO 0254688).³ Steven D. Feinberg, M.D., the Agreed Medical Evaluator (AME), examined Guzman on April 11,2005 and issued supplemental reports on her progress thereafter. Dr. Feinberg diagnosed bilateral carpal tunnel syndrome, which had not been detected previously and which was the result of cumulative industrial trauma. In June 2005, Dr. Feinberg reviewed Dr. Fatteh's notes and concurred in the recommendation that Guzman remain off work temporarily.

In his December 2, 2005 report, Dr. Feinberg noted Guzman's history of injuries prior to her employment with the District.⁴ Guzman told him, however, that on November 5, 2003 she was in good health without any ongoing disability. Dr. Feinberg reported that Guzman continued to have cervical and lumbar discomfort as well as numbness and tingling in the hands " at times." Her symptoms were "worse with activity." Dr. Feinberg believed that Guzman was currently "permanent and stationary." Her spine condition precluded heavy lifting, and she had a "25% loss of her upper extremity preinjury capacity for pushing, pulling, grasping, gripping, keyboarding or fine manipulation." In an effort to apportion the disability, Dr. Feinberg attributed it to a combination of the 2003 injury, long-term work exposure, and other factors (e.g., genetics, habits, weight, and life exposure to nonindustrial conditions). Without speculating, however, he was unable to assign a percentage of the contribution from nonindustrial factors in this situation; consequently, he expressed the opinion that "the approximate percentage caused by the industrial injury/exposure is 100%."

On August 23, 2006, responding to a request for clarification from the District's attorney, Dr. Feinberg clarified his "apportionment" findings. He explained that the November 2003 injury was responsible for the spine disability (which precluded heavy lifting) and the 25 percent loss of her preinjury capacity for pushing, pulling, grasping, gripping, and fine manipulation.

On July 13, 2007, Dr. Feinberg responded to a request by the District that he re-analyze the extent of Guzman's permanent disability in accordance with the Guides, using Version 2.49 of the Dexter Evaluation and Impairment Software. Dr. Feinberg re-examined Guzman and reported a total "whole person impairment" ⁵ of 14 percent, consisting of three percent on each upper extremity due to carpal tunnel syndrome, five percent impairment related to the lumbar spine, and five percent impairment related to the cervical spine injury. ⁶

On March 21, 2008, Dr. Feinberg again examined Guzman. He related the patient's treatment history, including extended psychotherapy for depression, and noted that she continued to have cervical and lumbar "discomfort" as well as numbness and tingling in the hands, a loss of grip strength, and pain in her right leg. Dr. Feinberg concluded that she was "certainly" permanentand stationary at that time. He again estimated her upper extremity loss to be 25 percent of her preinjury capacity "for pushing, pulling, grasping, gripping, keyboarding or fine manipulation," and again he could not reliably apportion the loss between the injury andnonindustrial causes. Consequently, he assigned 100 percent causation to the "industrial injury/exposure."

Guzman's attorney asked for clarification of the 25 percent loss estimate. Dr. Feinberg explained that for the patient's low back and neck pain, "the 'old' PDRS should be used and that the new AMA-based PDRS was applicable to the bilateral upper extremities." He reiterated that Guzman was "precluded for her upper extremities from very forceful, prolonged repetitive and forceful repetitive work activities." Dr. Feinberg pointed out that "there is often a discrepancy between the disability and the impairment. The type of problem she has is legitimate but does not rate very much (if anything) under the AMA Guides. Based on her ADL [Activities of Daily Living] losses, each upper extremity would have a 15% WPI [ (] 25% of 60%). This is not a method that is sanctioned by the AMA Guides."

Guzman's case was tried on July 10 and October 3, 2008. By stipulation, the 1997 PDRS was applied in SJO 244266, while the 2005 PDRS was applied in SJO 254688, the upper extremity trauma. She had already been compensated for her temporary disability; only the extent and apportionment of her permanent disability were at issue.

Karen Wong, the evaluator from the Disability Evaluation Unit (DEU), testified that the Guides did not permit a medical evaluator to compute WPI directly from ADL loss.⁷ "She d[id]n't know why it's improper for the doctor to complete his own whole person impairment directly from ADL loss, but she [was] confident that the AMA Guides don't allow it." ⁸ If the 15 percent WPI figure Dr. Feinberg referred to were used for each upper extremity, each would yield a 22 percent permanent disability, which would combine to amount to a 39 percent overall permanent disability. However, Wong instead relied solely on the "carpal tunnel" portion of Dr. Feinberg's March 21, 2008 report, which allowed up to five percent for each upper extremity. Thus, relying on Dr. Feinberg's assignment of impairmentbased on the Guides, Wong rated Guzman's WPI as three percent for each upper extremity, for a total permanent disability of 12 percent.

In an October 22, 2008 amended ruling, the Workers' Compensation Judge (WCJ) found that Guzman had sustained permanent partial disability of 41 percent in SJO 244266 and 12 percent in SJO 254688. The WCJ's decision was based on Dr. Feinberg's opinions as well as psychiatric reports by Michael D. Goldfield, M.D. The WCJ found no sufficient basis for attributing any permanent disability to Guzman's psychiatric injury, which was inseparable from the 2005 physical injury.

Noting the discrepancy between Dr. Feinberg's assessment of Guzman's...