DIANNE BENSON, Applicant,
v.
THE PERMANENTE MEDICAL GROUP, Permissibly Self-Insured; ATHENS ADMINISTRATORS (Adjusting Agent), Defendant(s).
Nos. OAK 0297895, OAK 0326228
California Workers Compensation Decisions
Workers Compensation Appeals Board State Of California
December 13, 2007
OPINION AND DECISION AFTER RECONSIDERATION (EN
BANC)
JOSEPH
M. MILLER, CHAIRMAN.
On
April 13, 2007, the Appeals Board granted defendant's
petition for reconsideration of the Findings and Award issued
on January 22, 2007, wherein the workers' compensation
administrative law judge (WCJ) found that applicant sustained
industrial injuries to her neck on June 3, 2003 and
cumulatively through June 3, 2003, that the two injuries both
became permanent and stationary on September 25, 2005, and
that the two injuries combined to cause 62% permanent
disability. Defendant sought reconsideration, contending
that, due to the changes wrought by Senate Bill (SB) 899
(Stats. 2004, ch. 34), there must be separate awards of
permanent disability for each injury and that the WCJ erred
in issuing a combined award of permanent disability.
The
Appeals Board granted reconsideration in this matter to allow
time to study the record and applicable law. Because of the
important legal issue presented as to the meaning and
application of SB 899 with regard to the continued viability
of long-standing legal principles of apportionment
established by Wilkinson v. Workers' Comp. Appeals
Bd. (1977) 19 Cal.3d 491 [42 Cal.Comp.Cases 406]
(Wilkinson), and in order to secure uniformity of
decision in the future, the Chairman of the Appeals Board,
upon a majority vote of its members, assigned this case to
the Appeals Board as a whole for an en banc decision. (Lab.
Code, § 115.)[
1]
The
issue presented in this case is whether the rule in
Wilkinson is still viable in view of the significant
changes effected by SB 899, which adopted a "new regime
of apportionment based on causation." (Brodie v.
Workers' Comp. Appeals Bd. (2007) 40 Cal.4th 1313,
1327 [72 Cal.Comp.Cases 565, 576] (Brodie).) The
rule announced in Wilkinson provides that an injured
worker, while employed by the same employer, who sustains two
separate injuries to the same part of the body, which become
permanent and stationary at the same time, is entitled to
receive a combined award of permanent disability.
Wilkinson arose in response to the mandate of former
Labor Code section 4750[
2] that each injury be considered by itself and
not in relation to any previous disability, and that benefits
be determined based upon the single injury "as though no
prior disability or impairment existed." In enacting SB
899, the Legislature repealed former section 4750, thereby
removing the statutory basis underlying Wilkinson,
and added the requirements that "[a]pportionment of
permanent disability shall be based on causation" (Lab.
Code, § 4663, subd. (a)), that apportionment of
permanent disability must be assessed in terms of "what
approximate percentage of the permanent disability was caused
by the direct result of injury … and what approximate
percentage of the permanent disability was caused by other
factors" (Lab. Code, § 4663, subd. (c)), and that
an employer "shall only be liable for the percentage of
permanent disability directly caused by the injury."
(Lab. Code, § 4664, subd. (a).)[
3]
We hold
that the rule in Wilkinson is not consistent with
the new requirement that apportionment be based on causation
and, therefore, Wilkinson is no longer generally
applicable. Rather, we now must determine and apportion to
the cause of disability for each industrial injury.
Therefore, all potential causes of disability – whether
from a current industrial injury, a prior or subsequent
industrial injury, or a prior or subsequent non-industrial
injury or condition – must be taken into consideration.
We observe, however, that there may be limited circumstances,
not present here, where the evaluating physicians cannot
parcel out, with reasonable medical probability, the
approximate percentages to which each successive injury
causally contributed to the employee's overall permanent
disability. Under these limited circumstances, a combined
award of permanent disability may still be justified.
BACKGROUND
The
facts in this case are not in dispute. Applicant, Dianne
Benson, began working as a file clerk for The Permanente
Medical Group in April 1992. The job essentially required her
to stand all day, except for some brief periods of sitting,
and it involved repetitive neck and upper extremity motion.
On June 3, 2003, she was reaching up over her head, pulling
out a plastic bin to file a chart, when she felt a pain in
her neck. The next day, she went to work, but her neck hurt
even more. She was initially diagnosed to have a neck strain
and was put on light duty. On July 15, 2003, however, she was
placed on temporary total disability and she did not return
to work thereafter. In November 2003, she filed an
application for adjudication of claim alleging a June 3, 2003
specific injury. On October 19, 2004, she underwent a
three-level fusion of the cervical spine.
The
parties selected Joseph Izzo, M.D., as an Agreed Medical
Examiner (AME). In his report of October 4, 2005, Dr. Izzo
concluded that applicant actually sustained two separate
injuries to her neck, the claimed specific injury on June 3,
2003, and a cumulative trauma injury through June 3, 2003.
Dr. Izzo concluded that applicant's injuries became
permanent and stationary as of the date of his evaluation on
September 26, 2005. Applicant subsequently filed a claim for
the cumulative trauma injury, as found by Dr. Izzo.
Dr.
Izzo concluded that as a consequence of her injuries,
applicant has a limitation to semi-sedentary work. As to the
issue of apportionment, Dr. Izzo concluded that
applicant's disability was equally caused by the specific
injury of June 3, 2003 and by the cumulative injury through
June 3, 2003:
"In my opinion, 50 percent of the current permanent
partial disability is apportioned to cumulative trauma
through June 3, 2003. 50 percent is apportioned to the
specific injury of June 3, 2003.
"The reason for the cumulative trauma injury is the fact
that the degenerative changes in her neck that created the
spinal stenosis would obviously have to come about over time.
There is nothing that I saw that constituted a disc
herniation. The diagnosis, per Dr. Smith, was degenerative
disc disease.
"The description of her job duties, with the extreme
amount of repetitive motion of her neck, certainly would
account for the development over the years of the
degenerative changes and the bone spur formation and
subsequent spinal stenosis.
"I see nothing presented in the records that invokes a
basis for apportionment to nonindustrial factors or
preexistent quiescent medical conditions not related to her
job activities."
It is
undisputed that applicant's combined permanent disability
is 62%, after adjustment for age and occupation. However, at
trial, defendant contended that the apportionment provisions
in SB 899 abrogated the Wilkinson rule and mandated
that applicant receive two separate awards of 31% permanent
disability. The WCJ concluded that the Wilkinson
rule is still viable under the facts of this case and that
separate awards of permanent disability are not required.
Accordingly, the WCJ issued a single award based on the
combined permanent disability of 62%. Defendant then timely
sought reconsideration.[
4]
DISCUSSION
I.
In
construing a statute, the Appeals Board's fundamental
purpose is to determine and effectuate the Legislature's
intent. (DuBois v. Workers' Comp. Appeals Bd.
(1993) 5 Cal.4th 382, 387 [58 Cal.Comp.Cases 286, 289];
Nickelsberg v. Workers' Comp. Appeals Bd. (1991)
54 Cal.3d 288, 294 [56 Cal.Comp.Cases 476, 480]; Moyer v.
Workmen's Comp. Appeals Bd. (1973) 10 Cal.3d 222,
230 [38 Cal.Comp.Cases 652, 657].) Thus, the WCAB's first
task is to look to the language of the statute itself.
(Ibid.) The best indicator of legislative intent is the
clear, unambiguous, and plain meaning of the statutory
language. (DuBois v. Workers' Comp. Appeals Bd.,
supra, 5 Cal.4th at pp. 387-388 [58 Cal.Comp.Cases
at p. 289]; Gaytan v. Workers' Comp. Appeals Bd.
(2003) 109 Cal.App.4th 200, 214 [68 Cal.Comp.Cases 693, 702];
Boehm & Associates v. Workers' Comp. Appeals
Bd. (Lopez) (1999) 76 Cal.App.4th 513, 516 [64
Cal.Comp.Cases 1350, 1351].) When the statutory language is
clear and unambiguous, there is no room for interpretation
and the WCAB must simply enforce the statute according to its
plain terms. (DuBois v. Workers' Comp. Appeals
Bd., supra, 5 Cal.4th at p. 387 [58...
