MARY DAVIS Applicant,
vs.
INTERIM HEALTHCARE, ITT SPECIALTY RISK SERVICES, INC.; WAUSAU INSURANCE COMPANIES, Defendants.
Nos. LAO 748301, LAO 768192
California Workers Compensation Decisions
Workers Compensation Appeals Board State of California
September 15, 2000
OPINION AND DECISION AFTER RECONSIDERATION (EN
BANC)
MERLE
C. RABINE, Chairman.
On July
7, 2000, the Board granted applicant's petition for
reconsideration of the Findings and Award issued by the
workers' compensation administrative law judge (WCJ) on
May 2, 2000. In the relevant portion of his decision, the WCJ
stated that because Labor Code section 4062.9[1] was not
listed by the parties as an issue at the mandatory settlement
conference (MSC), it had been waived. In her petition for
reconsideration, the applicant contends that she properly
raised the section 4062.9 presumption at trial, as indicated
by the October 21, 1999 Minutes of Hearing, and moreover, it
need not be raised as a separate issue at any time, but is
applicable by virtue of the statutory section alone.
Because
of the important and novel legal issue presented, and in
order to secure uniformity of decision in the future, the
Chairman of the Board, upon a majority vote of its members,
has reassigned this case to the Board as a whole for an
en banc decision. (Lab. Code, §115.) Based on
our review of the relevant statutory and case law, we
conclude that, although the prudent practitioner should raise
the section 4062.9 presumption at the time of the MSC, along
with all other issues, the section 4062.9 presumption may
first be raised at trial, but not for the first time on
reconsideration.
I.
BACKGROUND
Applicant
sustained an admitted cumulative industrial injury to her low
back, neck and left shoulder from October 8, 1996 through
October 8, 1997 (LAO 748301), and an admitted specific injury
to her left shoulder on October 8, 1997 (LAO 768192). Both
injuries were sustained while applicant was employed as a
nurse by Interim Healthcare, insured by ITT Specialty Risk
Services from October 8, 1996 to September 26, 1997, and by
Wausau Insurance Company from September 26, 1997 to October
8, 1997.
Applicant's
primary treating physician for these industrial injuries was
Dr. Robert Hunt. In his report dated March 23, 1999, Dr. Hunt
stated that applicant's condition was permanent and
stationary as of February 24, 1999, the date of his clinical
evaluation. With respect to permanent disability, Dr. Hunt
set forth various prophylactic work restrictions for the
applicant's neck, spinal and shoulder injuries, and
apportioned fifty percent of her right shoulder disability to
a prior 1991 injury. Dr. Hunt also concluded that applicant
was in need of further medical treatment, and that she was a
candidate for vocational rehabilitation.
Dr.
Hunt issued a supplemental report dated May 19, 1999. In that
report, he disagreed with the opinion of Dr. Steven
Wertheimer, defendant's qualified medical examiner (QME),
as to applicant's permanent and stationary date, and with
Dr. Wertheimer's assessment that applicant was not in
need of a housekeeper to do her shopping and laundry. There
was no indication that Dr. Hunt changed any of the
conclusions reached in his March 23, 1999 report.
In Dr.
Wertheimer's report of November 16, 1998, he concluded
that applicant's condition was permanent and stationary,
and that she was a qualified injured worker. Dr. Wertheimer
prescribed future medical care in the form of light analgesic
medications, and an occasional steroid injection, but stated
that surgery was not recommended. He concluded, however, that
physical therapy, which was being provided by Dr. Hunt, had
not been effective. With respect to permanent disability, Dr.
Wertheimer opined that applicant was precluded from
performing various work activities, but to a lesser extent
than set forth in the opinion of Dr. Hunt.
Dr.
Wertheimer also submitted a report dated February 16, 1999,
in which, among other things, he noted that his earlier
report had omitted the restrictions regarding applicant's
cervical spine. Dr. Wertheimer submitted a final...
