Universal City Studios, Inc., v. Worker's Comp. Appeals Bd.

• Decision Date: 12 December 1979
• Citation: 99 Cal.App.3d 647,160 Cal.Rptr. 597
• Court: California Court of Appeals
• Parties: UNIVERSAL CITY STUDIOS, INC., permissibly self-insured, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD of the State of California; Bernice Lewis, Respondents. Civ. 55017.

Page 597

160 Cal.Rptr. 597

99 Cal.App.3d 647

UNIVERSAL CITY STUDIOS, INC., permissibly self-insured, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD of the State of California; Bernice Lewis, Respondents.

Civ. 55017.

Court of Appeal, Second District, Division 2, California.

Dec. 12, 1979.

Hearing Denied Feb. 15, 1980.

Nichols & Harris, and Robert C. Nichols, Encino, for petitioner.

Rose, Klein & Marias, and Jerome H. Goldberg, Los Angeles, for respondent Bernice Lewis.

Richard W. Youngkin, Pomona, William B. Donohoe, and Dexter W. Young, San Francisco, for respondent Workers' Compensation Appeals Bd.

BEACH, Associate Justice.

The Workers' Compensation Appeals Board (Board) awarded employee Bernice Lewis $22,260 as workers' compensation for her claimed disability, resulting from a sprained ankle. Her employer, petitioner Universal City Studios, Inc. (Universal), petitioned for writ of review before this court. We granted the writ to determine employer's claims. Universal contends: (1) the Workers' Compensation Appeals Board in denying employer's petition for reconsideration of the Workers' Compensation Appeals Board judge's award, failed to consider all of the relevant evidence, specifically in failing to order a full transcript of the testimony of the hearing before the trial judge; and (2) the trial judge erred in awarding the permanent disability based on a "semi-sedentary work restriction", because the evidence does not support the finding of the trial judge or of the Board regarding the level of the injured worker's permanent disability.

FACTS :

Employee Bernice Lewis, a bookkeeper-cashier, while walking to work on February 9, 1976, jumped over a puddle in employer's parking lot. She came down hard on her left foot. There was no fracture. She did not fall. There was no immediate pain. However, about an hour later she started having pain and went to the hospital emergency room and was treated for a sprained ankle. Thereafter, Universal furnished medical treatment given by her chosen physician. She received temporary disability payment. At the hearing to determine the nature and extent of permanent disability, the workers' compensation judge found the injury resulting in permanent disability of 61 percent which was based upon a semi-sedentary work restriction. ¹ Upon that rating the trial judge awarded Lewis $22,260 "permanent disability" compensation.

Lewis was treated by her own physician, J. H. Abramson, M.D., for several months. In his final report dated December 2, 1976, Dr. Abramson found that Lewis had reached a permanent and stationary stage and thus could be rated for permanent disability. Dr. Abramson at that time stated that Lewis "should be on a sedentary job as a permanent restriction." ²

At the request of Universal, Lewis was examined by Sheldon Schoneberg, M.D. In his report of January 8, 1977 Dr. Schoneberg found that Lewis had very little disability. Dr. Schoneberg noted that "(o)bjectively (Lewis) shows some minimal restriction of dorsiflexion and inversion of the left foot." Dr. Schoneberg felt that Lewis was capable of working as a cashier for Universal with her "present level of discomfort . . . ." Dr. Schoneberg described Lewis' discomfort "as intermittent and slight in nature."

Because of the conflict in conclusions of the reports, as to the extent of Lewis' disability, the workers' compensation judge referred Lewis to an agreed medical examiner Lorne A. Rolston, M.D. In his report of October 17, 1977, Dr. Rolston indicated that Lewis' condition was permanent and stationary and ready for rating. Dr. Rolston reported Lewis' Subjective complaints were "(c) onstant minimal to slight pain, left ankle and foot, becoming more than moderate with prolonged walking or standing." Dr. Rolston opined Lewis' work capacity was such that she is "able to perform work activity which will permit her to sit and stand equally, alternately, intermittently throughout the day."

Thereafter, the workers' compensation judge sent Dr. Rolston's report to the rating specialist with the notation which read only: "Rate Dr. Rolston's report." The disability evaluation specialist, D. S. Lucien, recommended a 60 percent standard rating for the factors of disability which adjusted for age and occupation (see Lab.Code, § 4660) to 58 percent permanent disability.

Universal then requested cross-examination of Dr. Rolston and the disability evaluation specialist. Lewis requested cross-examination only of the disability evaluation specialist. A hearing was held for this purpose on June 27, 1978.

Dr. Rolston testified he intended Lewis to have a semi-sedentary work restriction for her industrial injury; the restriction was based on Lewis' Subjective complaint; he did not believe that Lewis' condition would worsen if she exceeded the work restriction but it would increase her subjective complaints; and, he understood the definition of "semi-sedentary work" as stated in the Rating Schedule.

The disability evaluation specialist testified: he followed the judge's instructions and rated Lewis' disability as indicated by Dr. Rolston's report; he applied a 60 percent standard rating, which is the standard for semi-sedentary work, based on the language of Dr. Rolston's report that Lewis should have a job where she could "sit or stand at will," which in his mind is the same as a semi-sedentary rating; a semi-sedentary work restriction refers to working equal time in a sitting and standing position; and it was immaterial whether the reasons for the semi-sedentary restriction were for Lewis' subjective complaints or whether it was for a prophylactic restriction by the doctor.

Upon questioning by Lewis, the disability evaluation specialist acknowledged he had used the wrong occupational variant in rating Lewis' permanent disability. The specialist recomputed the proper rating as 61 percent permanent disability. ³ At the conclusion of the cross-examination of Dr. Rolston and the rating specialist, Universal moved that Dr. Rolston's report and the rating be stricken.

A revised recommended rating was issued on August 22, 1978, whereunder the rating specialist recommended a 61 percent rating in accord with his testimony. On September 20, 1978, the workers' compensation judge issued the "Findings-Award" in this matter. Thereunder, the workers' compensation judge awarded Lewis, among other benefits, 61 percent permanent disability in accord with the revised recommended rating. This was then multiplied by the statutory number of weeks of weekly compensation allowable for each one percent of rated disability, resulting in the total award of $22,260 ordered paid.

Universal then sought reconsideration by the Board. Universal contended that Dr. Rolston's report and testimony did not support a finding that Lewis was restricted to semi-sedentary work as a result of her injury. Specifically, Universal contended that Dr. Rolston did not use the term "semi-sedentary work" within the meaning as stated in the Rating Schedule. Universal also asserted that Dr. Rolston's description of Lewis' subjective complaints and physical ability were inconsistent with a restriction of semi-sedentary work. Universal requested that a transcript of testimony be obtained by the Board as the judge's summary of testimony was inadequate as to the exact nature of Dr. Rolston's testimony.

The Board denied Universal's petition for reconsideration, stating in its Opinion and Order Denying Reconsideration (Opinion) in pertinent part:

"Petitioner (Universal) argues that the Summary of Evidence of the June 27, 1978 hearing failed to fully restate all the relevant testimony of Dr. Lorne A. Rolston, the independent medical examiner, and D. S. Lucien, the permanent disability rating specialist. While petitioner alleges certain deficiencies in the Summary with regard to Dr. Rolston's testimony, it alleges no defect with regard to the testimony of the rating specialist. Nor does petitioner contest the accuracy of what was reported in the Summary, but requests that the Board seek a transcript to augment the record before us.

"Based on our examination of defendant's arguments and the record before us, we find no need for a complete transcript of Dr. Rolston's testimony. The Supreme Court, ruling In bank in Allied Compensation Insurance Company v. IAC (Lintz) (1961) 57 Cal.2d 115 (17 Cal.Rptr. 817, 367 P.2d 409), 26 CCC 241, held that The Board is required to obtain a transcript only when specific and material defects in the Summary are established. Even if we consider Dr. Rolston's additional testimony as alleged in the petition, we still conclude his testimony supports the semi-sedentary work restriction. His testimony as reported both in the Summary and as alleged in the petition support the conclusion that applicant (Lewis) would be prevented from performing full time work by her pain.

"In general, we believe the evidence supports the semi-sedentary work restriction on which the permanent disability rating is based. We are disinclined to disturb the workers' compensation judge's findings thereon. In his report, the workers' compensation judge explains that he relied on the (report and testimony of Dr. Rolston and the testimony of D. S. Lucien, the rating specialist) . . . ." (Emphasis added.)

DISCUSSION :

1. Scope of Review Requires an Examination of the Entire Record.

The Board erred in denying reconsideration. It appears from the record before us and from the opinion of the Board denying reconsideration that the Board simply relied upon what to it appeared to be substantial evidence which supported the referee's decision rather than examining the award and the evidence in the light of the entire record.

We may not and do not reweigh the evidence nor decide disputed question of fact, nor resolve conflicts in the evidence. This the Board is empowered to do.

" '(A)lthough the board is empowered to resolve conflicts in the evidence (citations), to...