Paneno v. Workers' Comp. Appeals Bd.

• Citation: 5 Cal.Rptr.2d 461,4 Cal.App.4th 136
• Court: California Court of Appeals Court of Appeals
• Decision Date: 04 March 1992
• Parties: Frank J. PANENO, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD, Wausau Insurance Company et al., Respondents. Civ. B057776.

Page 461

5 Cal.Rptr.2d 461

4 Cal.App.4th 136

Frank J. PANENO, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD, Wausau Insurance Company et al., Respondents.

Civ. B057776.

Court of Appeal, Second District, Division 6, California.

March 4, 1992.

As Modified on Denial of Rehearing

March 26, 1992.

Review Granted June 11, 1992.

Publication Directed by Supreme Court Oct. 5, 1992.

Newell & Messer, and Phillip R. Newell, San Luis Obispo, for petitioner.

California Applicant's Attys. Ass'n, and Phillip N. Bruce, Sacramento, as Amicus Curiae, on behalf of petitioner.

Mark R. Lippman, La Jolla, and Mentz, Finn, Clarke, McDowell & Newton, and Thomas M. Finn, San Jose, for respondents Wausau Ins. Co. and Sentry Ins. Co.

No appearance for respondent W.C.A.B.

STEVEN J. STONE, Presiding Justice.

Applicant, Frank J. Paneno, sustained an industrial injury to both knees during his employment as a hearing representative by Wausau Insurance Company (Wausau). The workers' compensation judge (WCJ) found that, after apportionment to preexisting disability, applicant is 13 percent permanently disabled as a result of the industrial injury. The WCJ also found applicant does not need further medical treatment to cure or relieve him from the effects of the industrial injury. On February 27, 1991, respondent Workers' Compensation Appeals Board (WCAB) denied applicant's petition for reconsideration. The WCAB served its order on applicant by mail that same date.

On April 18, 1991, applicant filed a petition for writ of review. He contends, among other things, that the WCAB erred in denying him further medical treatment.

Wausau and its workers' compensation insurer, Sentry Insurance Company, acknowledge the petition was timely under this court's holding in Villa v. Workers' Comp. Appeals Bd. (1984) 156 Cal.App.3d 1076, 203 Cal.Rptr. 26 that Code of Civil Procedure section 1013 extends the time for filing a petition for writ of review when the WCAB's decision has been served by mail. They contend, however, that the time for filing should not be extended and request that we overrule Villa.

For the reasons expressed herein, we conclude that the time for filing a petition for writ of review may not be extended because the WCAB's decision has been served by mail. However, in view of the substantial reliance in the Second Appellate District on our holding in Villa, our decision that section 1013 does not apply will not be effective until this opinion becomes final. We further conclude that the WCJ and WCAB erred in apportioning 60 percent of applicant's permanent disability to preexisting disability and in finding applicant does not need further medical treatment to cure or relieve him from the effects of the industrial injury, and we annul the order denying reconsideration.

FACTS

On April 16, 1984, applicant sustained an industrial injury to his right knee when his right foot got caught under a file drawer. By favoring the right knee, applicant sustained an industrial injury to the left knee.

Applicant had had previous problems with both knees. He sustained injuries to the right knee while playing football in high school and college. In the Marine Reserves, he got on and off moving trucks and had "difficulty" with the right knee. In 1965 he was discharged from the Marine Reserves because of knee symptoms. He had right knee surgery in 1965 and left knee surgery in 1979 or 1981. He continued receiving treatment, and, sometime before the industrial injury, his right knee was aspirated and cortisone injected. Although applicant did not have any work restriction immediately before the industrial injury, he had pain in the right knee after prolonged standing or participating in sports. He had swelling in the right knee after strenuous physical activities. Occasionally, his right knee was unstable. He wore a knee support when he skied or went horseback riding.

Applicant had right knee surgery in January 1987 and left knee surgery in April 1987.

Applicant testified that, before the industrial injury, he did construction work. He also skied and hiked in the mountains. Because of the industrial injury, he no longer skis or does construction work. He can walk up to one-quarter to one-half mile on a concrete surface, but he cannot walk on uneven ground. Climbing and descending stairs are difficult.

The right knee is very painful after much driving or standing. The knee occasionally "lock[s]." The left knee is painful and gets warm and swollen.

Applicant continues to ride horses. However, he wears a Velcro brace over an elastic knee brace when he expects to engage in vigorous horseback riding. Applicant explained he wears a Velcro brace "if he expects to be riding a horse working calves for an hour and-a-half [sic ] or two hours, when he's doing fence work, or handling bales of hay." Applicant breeds cattle. He also has a hobby in which he attempts to isolate two calves from a herd in two and a half minutes. Applicant tries to get near a fence or rock to mount a horse, but has no difficulty dismounting.

On September 14, 1987, Doctor Wilson Del Pizzo, applicant's treating physician, reported that applicant is permanently disabled. Doctor Del Pizzo stated applicant has slight pain with occasional standing and walking and severe pain with frequent standing and walking. Doctor Del Pizzo also found applicant has severe pain with attempts at squatting, crawling, climbing or kneeling and with "deep flexion." Doctor Del Pizzo found applicant needs to take anti-inflammatory medication and might need surgery. Doctor Del Pizzo later concluded applicant should avoid prolonged standing and walking and should also avoid squatting, climbing, crawling, and kneeling.

On November 30, 1987, Doctor Del Pizzo reported that X rays showed applicant had preexisting osteoarthritis with genu varus malalignment. He attributed "a minimum of 70%" of applicant's disability to "pre-existing factors." Doctor Del Pizzo concluded no further medical treatment is necessary for the industrial injury. He stated: "[F]uture medical care will be related to his genu varus and osteoarthritis involving the medial and patellofemoral compartments. We do not feel any future care provided to this patient would be related to his industrial injury but [it] will be related to his pre-existing problems." Doctor Del Pizzo did not explain why he attributed the entire need for further treatment to the preexisting conditions.

In August 1988 Doctor W. Gordon Smith concluded that the left knee injury resulted in a preclusion from heavy work and the right knee injury resulted in a limitation to light work. Doctor Smith attributed 20 percent of the right knee disability to preexisting factors. He found no basis for apportioning the disability caused by the left knee. Doctor Smith concluded applicant would need further medical treatment for both knees.

On March 6, 1989, Doctor Morrison S. McDavid, the agreed medical examiner, reported that applicant has intermittent minimal to slight pain, which becomes moderate with "more strenuous activities." Doctor McDavid concluded applicant is permanently precluded from kneeling, squatting, running, jumping, repeated stair and ladder climbing, and prolonged standing and walking.

Doctor McDavid attributed 70 percent of the right knee disability and 60 percent of the left knee disability to preexisting factors. He concluded that, absent the industrial injury, applicant would have "some significant limitations" by March 6, 1989, but did not explain what those limitations would have been.

Doctor McDavid found the right knee surgery in 1987 was required because of the industrial injury. He stated the left knee surgery in 1987 may also have been required because of the industrial injury. Doctor McDavid concluded that any further treatment, including surgery, would be attributable to applicant's preexisting condition. Doctor McDavid explained: "Mr. Paneno associates the change in his situation to the April, 1984 event, but medically speaking this was going to happen no matter what on the basis of his X-ray appearance bilaterally here."

On deposition, Doctor McDavid stated that X rays indicated there was very severe degeneration of the right knee before the industrial injury. He concluded it was reasonably probable that, absent the industrial injury, applicant would have had symptoms by the time Doctor McDavid examined him in 1989, "because he just had too much going on at the time of [the January 1987] surgery."

Doctor McDavid initially stated that he attributed 70 percent of the right knee disability to preexisting degenerative changes. Upon further questioning, he concluded that, absent the industrial injury, applicant probably would have had 70 percent of that permanent disability by March 6, 1989. ¹ Doctor McDavid testified that he attributed 60 percent of the left knee disability to preexisting degenerative changes.

Doctor McDavid concluded applicant should get off his feet for five or ten minutes after standing or walking for an hour or walking about one-quarter to one-half mile. Doctor McDavid initially opined that, because applicant goes horseback riding, applicant is not limited to semisedentary work. He stated that mounting a horse puts "a fair amount" of pressure on the knees. After applicant's attorney reminded Doctor McDavid that applicant wears a full-hinged brace on the right knee when applicant goes horseback riding, Doctor McDavid testified: "I think he is getting close [to a semisedentary level]. I think he ... will deteriorate and get to that level and probably get past that level and up to surgery."

Doctor McDavid testified that further medical treatment for both knees will be required solely because of preexisting problems. He opined applicant will eventually need a total right knee replacement. When asked whether the industrial injury can be excluded in determining the need for future treatment for the right knee, Doctor...