Nicky Blair's Restaurant v. Workers' Comp. Appeals Bd.

• Decision Date: 29 August 1980
• Citation: 167 Cal.Rptr. 516,109 Cal.App.3d 941
• Court: California Court of Appeals Court of Appeals
• Parties: NICKY BLAIR'S RESTAURANT and The Travelers Insurance Company, Petitioners, v. WORKERS' COMPENSATION APPEALS BOARD of the State of California; Juan J. Macias, Respondents. Civ. 57926.

Page 516

167 Cal.Rptr. 516

109 Cal.App.3d 941

NICKY BLAIR'S RESTAURANT and The Travelers Insurance Company, Petitioners, v. WORKERS' COMPENSATION APPEALS BOARD of the State of California; Juan J. Macias, Respondents.

Civ. 57926.

Court of Appeal, Second District, Division 3, California.

Aug. 29, 1980.

Hearing Denied Oct. 22,1980.

Parker & Dally, Perry K. Countryman and Stanford D. Herlick, San Bernardino, for petitioners

Richard W. Younkin, William B. Donohoe and Dexter W. Young, San Francisco, for respondent Workers' Compensation Appeals Board.

Wax & Appell and Melvin C. Appell, Los Angeles, for respondent Juan J. Macias.

COBEY, Acting Presiding Justice.

Petitioners (the employer and its insurer) seek review of a decision of the respondent

Workers' Compensation Appeals Board (Board) permitting respondent injured worker to reopen his workers' compensation award. Specifically, petitioners contend the Board erred in (1) increasing the permanent disability award and (2) awarding further medical treatment. There is no merit to the latter contention. The first contention, however, raises the serious question of the proper legal standards for reopening a prior [109 Cal.App.3d 946] decision of the Board under LABOR CODE SECTIONS 5410¹, ² 5803, ³ 5804 ⁴ and 5805. ⁵

PROCEEDINGS BEFORE BOARD

Respondent Juan J. Macias (hereinafter also "applicant") while employed on October 14, 1972, as a waiter by petitioner Nicky Blair's Restaurant, whose compensation insurance carrier is petitioner The Travelers Insurance Company, sustained injury arising out of and in the course of his employment to his back. A herniated disc at the L4-L5 level was diagnosed. In October 1973 Macias underwent a lumbar laminectomy.

After a hearing on April 24, 1975, Workers' Compensation Judge Lippert awarded Macias back disability of 211/2 percent ($4816.50) based upon finding "back disability involving loss of approximately one-half of pre-injury lifting capacity." Macias did not seek reconsideration of this award issued in August 1975.

In March 1977 Macias filed a petition to reopen his claim alleging "new and further" disability. The petition to reopen was heard before Workers' Compensation Judge Stark. ⁶ Judge Stark granted the petition to reopen and increased Macias' permanent disability award to 52 percent ($15,746.25) based upon a back disability limiting Macias to "light work" and also awarded further medical treatment.

In the petition to reopen proceedings Macias testified that since the original 1975 award his condition has deteriorated. His pain is more intense. His problems with his left leg (cramps and burning sensation) have intensified. He has a tremendous burning sensation at the base of the neck Medical evidence on the petition to reopen consists of reports from Thomas F. Morrow, M.D., a specialist in orthopedic surgery, Robert A. Rose, M.D., a specialist in neurology In his initial report of March 13, 1975, Dr. Rose set forth his opinion on Macias' factors of permanent disability as follows:

and into both shoulders and has "strong" headaches at the top of his head. The neck and shoulder complaints and the headaches started in the Spring or Summer of 1976. ⁷ and Michael J. Patzakis, M.D., associate professor of orthopedic surgery at the University of Southern California School of Medicine. Both Dr. Morrow and Dr. Rose examined Macias in connection with the original proceedings leading up to 1975 award and the petition to reopen. Dr. Patzakis only examined Macias in connection with the petition to reopen in the capacity of an independent medical examiner at the referral of the Medical Bureau of the Division of Industrial Accidents and at the request of Judge Stark.

"1. Constant slight low back pain without activity, increasing when he stands over 15-20 minutes, moves quickly, or twists to either side, lifts or carries over 25 lbs., with pain radiating down back of both lower extremities to the heels, especially the right with both legs cramping, with intermittent buckling of right lower extremity causing patient to stumble. Pain estimated to become severe on more than minimal demand for physical effort over 2 to 4 hours.

"2. Permanent disability resulting in limitation to at least light work. Patient is restricted from any repetitive lifting Dr. Rose recommended Macias be fitted with a back brace, given analgesics, and that future medical care be provided "as necessary."

                regardless of weight and any single lift of 25 pounds or more." 8  (Italics added.)
                

Reporting on February 15, 1977, in connection with the petition to reopen, Dr. Rose observes that Macias' condition has continued to deteriorate. Dr. Rose notes the increase in back pain and the development of headaches and neck pain. Dr. Rose opines Macias should not only be restricted to light work because of his back but also independently restricted to light work because of his neck problems. The head symptomatology, Dr. Rose believes, "further limits him in his ability to deal with his employment situation." ⁹ Dr. Rose relates In connection with the original proceedings, Dr. Morrow, who performed the 1973 surgery upon Macias, opined Macias could return to work as a waiter. Dr. Morrow did place a work restriction upon Macias to "avoid any type of heavy duty lifting individually where he is called upon repeatedly to lift weights alone in excess of 50 pounds on a continuous basis." This is the customary restriction placed by Dr. Morrow upon patients who have undergone the type of surgery performed upon Macias. ¹⁰ Dr. Morrow's report apparently provided the basis for 211/2 percent permanent disability rating in 1975.

these additional conditions to the industrial injury.

In connection with the petition to reopen, Dr. Morrow believes Macias' condition and disability are unchanged. Further, Dr. Morrow opines the neck and head difficulties are unrelated to the industrial injury.

Dr. Patzakis, in his report of December 16, 1977, opines Macias should be limited to light work, stating in pertinent part:

"His condition can be considered permanent and stationary for rating purposes. He has complained of neck pain and upper extremity problems; his x-rays taken by the physician, of his neck, have been reported as normal. His EMG of the upper extremities has also been reported as normal. (P) At this time, there is no evidence of any neurological deficit. The circumferential hypesthesia he has does not follow any root or dermatome distribution and is not from an organic standpoint. (P) He complains of pain on top of his head, but this does not appear to be related to his injury and he probably should have these evaluated by his private physician. (P) His subjective complaints should be considered moderate and based on his objective findings which include a positive EMG and a positive myelogram in the past with subsequent surgery and localized degenerative arthritis at L4-5. This patient's disability would preclude him to light work. No further treatment is necessary at this time. Provisions should be made for the patient to have 1-2 check-ups a year."

Upon cross-examination Dr. Patzakis stated that in his opinion there has been no real change or progression in Macias' condition from March 1975. According to him, there is no objective evidence of deterioration but there is an increase in symptomatology. The headaches and shoulder problems, Dr. Patzakis maintains, are unrelated to the industrial injury. Of importance is that Dr. Patzakis states that if Dr. Patzakis had seen Macias in March 1975 the doctor would have placed the same work restriction upon Macias. In other words, Dr. Patzakis apparently would have concurred in In granting the petition to reopen and in finding Macias limited to light work, Judge Stark stated in his Opinion on Decision:

Dr. Rose's 1975 permanent disability evaluation, had he been asked.

"I rely on the opinion of the independent medical examiner, Michael Patzakis, M.D., in finding that there is good cause to reopen; that applicant sustained permanent disability of 52%, equal to $15,746.25. . . . Dr. Patzakis testified that his restriction of applicant to light work is not really a result of an increase in applicant's disability, but is a result of his evaluation of the applicant's disability. That is to say, that had he seen applicant in March of 1975, based on the findings then made and evidence available he would probably have then limited him to light work. Dr. Patzakis' opinion indicates that there is good cause to reopen to increase permanent disability, because the amount previously awarded applicant appears to be inadequate. . . ." (Italics added.)

Judge Stark further explained his theory of "good cause" in his report to the Board on petitioners' petition for reconsideration as follows:

"There is good cause to reopen . . . . (P) . . . (P) (Petitioner) argues that there is no good cause to reopen because there is no 'new and further disability.' Certainly there is further disability. However, (petitioner) argues it is not 'new' disability since Dr. Patzakis testified there is no change in applicant's condition, only in the amount of disability he assigns to it. (P) It is submitted that this greater disability is, in fact, new disability as well. To deem it otherwise would deprive applicant of his right to increased benefits for the sake of semantic differentiation. (P) There is no question that applicant is more disabled than indicated by the previous permanent disability rating he received. Basic justice requires that he now be given that permanent disability rating which properly reflects his true disability. Good cause to reopen does exist. (P) The order granting applicant's Petition to Reopen and the Findings and Award of August 27, 1979 are supported by substantial evidence and most particularly, the opinion of the independent medical examiner, Michael Patzakis, M.D. . . . ."

The Board denied reconsideration. It...