Scheftner v. Rio Linda School District, 100404 CAWC, SAC 0326274

• Case Date: October 04, 2004
• Court: California

JANELLE SCHEFTNER, Applicant, v. RIO LINDA SCHOOL DISTRICT, Permissibly Self-Insured, Defendants. No. SAC 0326274 California Workers Compensation Decisions Workers’ Compensation Appeals Board State of California October 4, 2004           OPINION AND DECISION AFTER RECONSIDERATION (EN BANC)           MERLE C. RABINE, CHAIRMAN.          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 Senate Bill (SB) 899 (Stats. 2004, ch. 34) enacted April 19, 2004, to the apportionment issue in this case, 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          For reasons discussed below, we hold that submission orders and orders closing discovery, that issued prior to the enactment of SB 899 on April 19, 2004, are "existing" orders that cannot be reopened due to the prohibition set forth in Section 47. We also hold that absent existing orders as so defined the amendments, additions, or repeals of SB 899 apply prospectively on or after April 19, 2004, to all cases, regardless of the date of injury, unless otherwise specified in SB 899.          BACKGROUND          The relevant facts of this case do not appear to be in dispute.          Applicant sustained an admitted industrial injury to her low back on February 12, 2002. The applicant previously strained her back in 1997 and had continuing back problems prior to February 12, 2002. In fact, she received treatment through January 31, 2002 for her low back, just a few weeks before her industrial injury, and had a treatment appointment scheduled for February 13, 2002.          According to the January 31, 2002 records of Mark Pedroncelli, D.C., applicant complained of "constant pain in lower left side of back going down into leg, butt and side." (Def. Exh. C, page 3.) The pain was aggravated by sitting, bending, twisting, pushing, lifting, reaching, stooping, kneeling, standing, pulling and arising from sitting. Dr. Pedroncelli's record on this date notes that the problem "was worsening."          The matter came on for Mandatory Settlement Conference on November 13, 2003, at which time issues were framed, including permanent disability, apportionment, and further medical treatment, exhibits and witnesses identified, and the matter was set for trial.          At trial on February 18, 2004, permanent disability and apportionment were listed as issues, among other issues, and applicant testified. At the conclusion of trial the WCJ gave the following disposition:

"This matter may be referred to the Disability Evaluation Unit. If a recommended rating issues, then the parties will have 7 days to file a motion to strike. If no motion is filed, the matter will then stand submitted. If it is not referred to the Disability Evaluation Unit, then it will be submitted as of today."

         The matter was not submitted to the Disability Evaluation Unit. Therefore, the matter was deemed ordered submitted as of February 18, 2004.          On April 19, 2004, SB 899 was enacted.          On April 23, 2004, the WCJ found, in relevant part, that Janelle Scheftner (applicant), sustained industrial injury to her low back on February 12, 2002, while employed as a teacher by defendant. The WCJ further found that the injury resulted in 34% permanent partial disability, without apportionment, and with a need for further medical treatment. In his Opinion on Decision, the WCJ explained that although applicant had problems with her back pre­existing this injury, the employer was responsible for all disability "lit up" by the industrial injury and thus he did not apportion the disability. His decision was based in part on the medical opinion of Dr. Nijjar, applicant's Qualified Medical Evaluator. The WCJ arrived at the 34% permanent disability figure without consulting the Disability Evaluation Unit (DEU).          On July 19, 2004, the Appeals Board granted the petition for reconsideration filed by Rio Linda Union Elementary (defendant).          Defendant contends in substance: (1) that substantial evidence does not support the finding of 34% permanent partial disability; (2) that the WCJ erroneously relied on the medical opinion of Dr. Nijjar with regard to permanent disability because Dr. Nijjar did not comply with newly enacted Labor Code section 4663, effective April 19, 2004, that provides for apportionment based on causation; (3) that the WCJ incorrectly rated the factors of disability to arrive at the 34% figure, even if the subjective factors of disability described by Dr. Nijjar are to be accepted; and (4) that the award of future medical treatment by the WCJ is not supported by substantial evidence.          In his Report and Recommendation on defendant's petition for reconsideration, the WCJ disagrees with defendant's contentions except, upon further reflection, the WCJ indicates that he probably should have called for a consultative rating by the Disability Evaluation Unit to rate the factors of disability described by Dr. Nijjar. He recommends that the matter be returned to him for this purpose only, but otherwise deny all other counts raised by defendant. As to the defendant's argument regarding the application of newly enacted Labor Code section 4663, the WCJ states that the change in the law enacted by SB 899, effective April 19, 2004, is not applicable to the instant case because the case had been submitted for decision as of February 18, 2004, a submission order existing prior to enactment of SB 899.          DISCUSSION          A. "Existing order, decision or award" includes orders of closure of discovery at mandatory settlement conferences and orders of submission for decision.          The first issue here is whether the new statutes on apportionment, specifically section 4663,2 enacted on April 19, 2004, should be applied to the facts of the instant case, where the WCJ held an MSC and issued an order of submission prior to the enactment of SB 899 on April 19, 2004, followed by the issuance of Findings and Award after its enactment. If the new statutes do apply, the WCJ's decision should be rescinded, the submission order rescinded, and the matter remanded for further development of the record, because the reporting physicians did not address causation of permanent disability as required by newly enacted section 4663(c).          Section 47 of SB 899 states:

"The amendment, addition, or repeal of, any provision of law made by this act shall apply prospectively from the date of enactment of this act, regardless of the date of injury, unless otherwise specified, but shall not constitute good cause to reopen or rescind, alter, or amend any existing order, decision, or award of the Workers' Compensation Appeals Board."

SB 899 repeals former statutes on apportionment contained in Labor Code sections 4663, 4750, and 4750.5, without a savings clause (see, 7 Witkin, Summary of Cal. Law (9th ed. 1988) Constitutional Law, §497, pp. 690-691). Substituted in place thereof are amended section 4663 and added section 4664, the former dealing with apportionment to causation with a requirement that physicians address apportionment to causation, and the latter including a conclusive presumption of a pre-existing disability if the applicant received a prior award of permanent disability. Neither section specifies an effective date other than the date of enactment of SB 899. However, Section 47 proscribes reopening of "any existing order, decision or award" to apply the new statutes. The question now arises as to what is meant by "existing order."          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]; Cal. Ins. Guar. Ass'n v. Workers' Compensation Appeals Bd. (Karaiskos) 117 Cal.App.4th 350, 355 [69 Cal.Comp.Cases 183, 185].) 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...