Robinson v. Workers' Comp. Appeals Bd.

• Decision Date: 09 September 1987
• Parties: Stelling ROBINSON, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD and Republic Indemnity Company of America, Respondents. F008164.
• Court: California Court of Appeals Court of Appeals

Page 841

239 Cal.Rptr. 841

194 Cal.App.3d 784

Stelling ROBINSON, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD and Republic Indemnity Company of America, Respondents.

F008164.

Court of Appeal, Fifth District, California.

Sept. 9, 1987.

Review Denied Dec. 2, 1987.

Hays, Cantrell, Green, Pekich & Zaks, Santa Ana, Cantrell, Green, Pekich & Zaks and Richard Zaks, Long Beach, for petitioner.

Richard W. Younkin, William B. Donohoe, Charles E. Finster, San Francisco, Schummer, Barton, Rolbin, Hurst & Wax and Steven H. Wax, Van Nuys, for respondents.

BEST, Associate Justice.

Petitioner seeks to annul the decision of the Workers' Compensation Appeals Board (WCAB or Board), made after reconsideration, affirming a stipulation with request for award (stipulation) which had been approved and issued by the workers' compensation judge (WCJ). Petitioner contends the WCAB erred (1) in denying his request to withdraw from the stipulation prior to its being approved and acted upon; (2) by approving the stipulation which did not adequately reflect his temporary disability entitlement; and (3) by issuing an award determining his permanent disability rating while petitioner was engaged in vocational rehabilitation.

We reject each of the contentions and affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND

On or about December 15, 1978, petitioner, Stelling Robinson, filed three separate applications with the WCAB against defendants and respondents Giumarra Vineyards and its workers' compensation insurance carrier, Republic Indemnity Company of America (Republic), alleging injuries to petitioner's left arm and shoulder as a result of specific injuries occurring in January 1975 and July 19, 1978, and repetitive trauma from November 3, 1974, to July 19, 1978, all arising out of his employment as a farm laborer for Giumarra Vineyards. Republic filed answers admitting injury and placing in issue initial liability for self-procured medical treatment, medical-legal costs, periods of temporary disability, permanent disability and apportionment.

The cases were consolidated for trial and at a hearing held before the WCAB on August 18, 1981, petitioner submitted medical reports which were received into evidence. A report written on February 21, 1979, by Dr. John B. Armstrong, an orthopedic surgeon, stated that petitioner had a cervical nerve root compression syndrome and his injury was considered permanent and stationary for rating purposes. A report written by petitioner's treating physician in Tucson, Arizona, Dr. Jaime Vargas, on June 10, 1981, stated that petitioner had a problem with two disks in his neck and also had a nerve problem in his left arm. This report contained another report written by Dr. Harvey G. Goodman on September 22, 1980, which stated that petitioner had an injury to nerves in the left arm. A report written by Dr. Winston Warr dated March 26, 1980, stated that petitioner's condition seemed no better than when he had been examined by Dr. Armstrong.

At the same hearing, Republic submitted into evidence a report by Dr. Sheldon Schoneberg, an orthopedic surgeon, written on July 19, 1979, which stated that petitioner's condition could be considered permanent and stationary.

Pursuant to respondents' motion, the WCAB ordered petitioner to report for examination to Dr. Joseph Bailey who was appointed by the Board as an independent medical examiner. Dr. Bailey, in his initial report dated October 21, 1981, did not consider petitioner to be permanent and stationary at that time but rather that he had been and was still temporarily totally disabled from his usual and customary employment from July 19, 1978, to that date and continuing. The WCJ admitted Dr. Bailey's report into evidence.

Unaware that respondents' counsel had filed a request to cross-examine Dr. Bailey, the judge issued his findings and order, which held that petitioner was entitled to temporary disability benefits from July 20, 1978, up to August 18, 1981, and continuing thereafter. Republic objected to the award in its petition for reconsideration and, pursuant to the WCJ's recommendation, the WCAB rescinded the award to allow the respondents the opportunity to cross-examine Dr. Bailey by deposition. Republic solicited an updated medical opinion from petitioner's attending physician as to whether or not petitioner's condition had become permanent and stationary. In a report dated December 27, 1983, Dr. Jaime Vargas described petitioner's condition as stationary as of that date.

The WCJ ordered petitioner to see Dr. Joseph Bailey again for reexamination on April 9, 1985. In his report, Dr. Bailey stated that he thought petitioner became permanent and stationary when he was so considered by Dr. Vargas on December 27, 1983. He further added that petitioner should be allowed future medical care and that he should retrain. In conclusion, he believed that petitioner's temporary disability and self-procured medical treatment were reasonable following the July 19, 1978, injury up to the time he was found to be permanent and stationary. This report was served on both parties on June 5, 1985.

Several months later, petitioner entered into a stipulation which was submitted at the hearing on October 16, 1985. Petitioner stipulated that his injury had caused temporary disability for three specific periods: (1) July 20, 1978, to December 28, 1978; (2) June 3, 1979, to July 28, 1979; and (3) September 28, 1982, to July 19, 1983. Petitioner further stipulated that he had been adequately compensated for the temporary disability, that the injury caused 40.2 percent permanent disability, that he declined vocational rehabilitation at the time, and that he waived any claim to rehabilitation benefits to date, i.e., October 16, 1985.

By way of a letter dated October 21, 1985, a friend requested on behalf of petitioner that the decision be set aside on the basis that petitioner could not read and that petitioner's attorney did not adequately explain all of the options available to him. Petitioner reiterated his desire to withdraw from the stipulation in a second letter to the judge written by Attorney Dee-Dee Samet on December 4, 1985.

The WCJ advised Republic in a letter dated December 12, 1985, that petitioner had an ex parte communication with him stating his dissatisfaction with the sum of the settlement. The WCJ further stated in his letter that he would withhold the approval of the stipulation for a short period of time to allow the parties to explore the possibility of a compromise and release settlement. Petitioner submitted a substitution of attorneys form on February 10, 1986. On that same date, petitioner requested resumption of rehabilitation services from Republic. The rehabilitation benefits were resumed effective that date.

On February 12, 1986, petitioner, through his new counsel, reiterated his request to withdraw from the stipulation in a letter to the WCJ. Petitioner's counsel requested that the stipulation not be approved on the basis that the temporary disability benefits were inadequate in light of Dr. Bailey's report. Petitioner's counsel also stated that it was premature to enter into a stipulation for permanent disability indemnity prior to a determination of petitioner's rights to rehabilitation and his feasibility to benefit therefrom.

The WCJ issued an undated award service dated March 21, 1986, based on the stipulation submitted by the parties. Petitioner sought reconsideration of the findings and award. The WCJ recommended that reconsideration be granted and the findings and award rescinded. On September 10, 1986, respondent WCAB issued its opinion and decision after reconsideration denying petitioner's request that the findings and award of March 21, 1986, be set aside. It is from this decision that petitioner seeks relief.

I

Was it error to deny petitioner's request to withdraw from the stipulation?

Petitioner argues that because he sought to be relieved of the stipulation before it was approved and acted upon by the WCAB, he should have been permitted to withdraw from the stipulation.

Generally, stipulations are binding upon the parties. "Unless the trial court, in its discretion, permits a party to withdraw from a stipulation [citations], it is conclusive upon the parties, and the truth of the facts contained therein cannot be contradicted. [Citations.]" (Palmer v. City of Long Beach (1948) 33 Cal.2d 134, 141-142, 199 P.2d 952.) A stipulation is also binding on the court where the stipulation is not contrary to law, court rule or policy. (Greatorex v. Board of Administrators (1979) 91 Cal.App.3d 54, 58, 154 Cal.Rptr. 37.)

However, stipulations which arise in workers' compensation cases are not necessarily binding on the WCAB. Labor Code section 5702 provides:

"The parties to a controversy may stipulate the facts relative thereto in writing and file such stipulation with the appeals board. The appeals board may thereupon make its findings and award based upon such stipulation, or may set the matter down for hearing and take further testimony or make the further investigation necessary to enable it to determine the matter in controversy." (Emphasis added.)

Accordingly, while stipulations are permissible in workers' compensation cases and are treated as evidence in the nature of an admission, they are not binding on the WCJ or the WCAB. (Turner Gas Co. v. Workmen's Comp. Appeals Bd. (1975) 47 Cal.App.3d 286, 290-291, 120 Cal.Rptr. 663; see also Draper v. Workers' Comp. Appeals Bd. (1983) 147 Cal.App.3d 502, 508, fn. 4, 195 Cal.Rptr. 248.)

Petitioner suggests that because the workmen's compensation laws must be liberally construed with the purpose of extending their benefits for the protection of injured workmen (Lab. Code, § 3202), "concurrent with the discretion of the WCAB per Labor Code Sec. 5702 to permit the submission of stipulations for review is the right of a party to withdraw from such stipulations before they...