Hikida v. Workers' Comp. Appeals Bd.

12 Cal.App.5th 1249

219 Cal.Rptr.3d 654

Maureen HIKIDA, Petitioner,

v.WORKERS' COMPENSATION APPEALS BOARD, Costco Wholesale Corporation et al., Respondents.

B279412

Court of Appeal, Second District, Division 4, California.

Filed June 22, 2017

Law Firm of Rowen, Gurvey & Win and Alan Z. Gurvey, Van Nuys, for Petitioner.

Law Office of Mark Gearhert and Justin C. Sonnicksen for California Applicants' Attorneys Association as Amicus Curiae on behalf of Petitioner.

Mullen & Filippi, Jay S. Cohen, Van Nuys, and Daniel Nachison ; Seyfarth & Shaw and Kiran A. Seldon, Los Angeles, for Respondents Costco Wholesale Corporation and Helmsman Management Services.

John F. Shields, Santa Rosa, and Peter Ray, Glendale, for Respondent Workers' Compensation Appeals Board.

MANELLA, J.

Petitioner Maureen Hikida seeks review of an order of respondent Workers' Compensation Appeals Board (the Board) affirming the decision of the workers' compensation judge (WCJ) to apportion the permanent total disability suffered by petitioner between industrial and nonindustrial causes prior to issuing its award. Petitioner contends that because the agreed medical examiner (AME) concluded her permanent total disability was the result of a failed surgery for carpal tunnel syndrome, a condition she contracted primarily due to the clerical work she performed for respondent Costco Wholesale Corporation (Costco) for more than 25 years, apportionment was not appropriate.¹ After briefing on the merits was complete, respondents filed a supplemental brief raising a "question" as to this court's jurisdiction. Specifically, respondents suggested the writ petition might have been untimely, because the issue of apportionment was resolved by the Board months before the Board denied reconsideration of the WCJ's final award. We conclude the petition was timely filed. We further conclude that despite significant changes in the law governing workers' compensation in 2004, disability resulting from medical treatment for which the employer is responsible is not subject to apportionment. Accordingly, we annul the Board's order and remand for an increase in petitioner's disability award.

FACTUAL AND PROCEDURAL BACKGROUND

Petitioner was employed by respondent Costco from November 1984 to May 2010. During this period, she developed a number of medical conditions, including carpel tunnel syndrome.²

In May 2010, she took leave from work to undergo carpel tunnel surgery.³ Following the surgery, she developed chronic regional pain syndrome (CRPS), a condition that caused her debilitating pain in her upper extremities and severely impaired her ability to function. She never returned to work. The parties stipulated she became permanent and stationary on May 2, 2013.

In 2012 and 2013, petitioner was examined by an AME in orthopedics, Chester Hasday, M.D. Dr. Hasday found petitioner permanently and totally disabled from the labor market. He found that her permanent total disability was due entirely to the effects of the CRPS that she developed as a result of the failed carpal tunnel surgery. He further concluded that petitioner's carpal tunnel condition itself was 90 percent due to industrial factors and 10 percent to nonindustrial factors.⁴

In issuing the award, the WCJ found that petitioner's permanent total disability was 90 percent due to industrial factors, "after adjustment for apportionment." Petitioner sought reconsideration by the Board, contending her disability was 100 percent industrial because it derived from medical treatment, entitling her to an unapportioned award. The WCJ prepared a report and recommendation, in which he recommended denying the petition for reconsideration, stating that he was "obligated under Labor Code section 4663 to address apportionment of permanent disability to factors other than applicant's industrial injury."

On February 8, 2016, in a two-to-one decision, the Board affirmed the apportionment. The majority concluded: "To properly evaluate the issue of apportionment of permanent disability, it is necessary to ‘parcel out’ the causative sources of the permanent disability, nonindustrial, prior industrial and current industrial, and ‘decide the amount directly caused by the current industrial source.’ [Citation.] [¶] As the WCJ notes in the Report, the AME Dr. Hasday concluded that [petitioner's] CRPS caused her to be totally permanently disabled. However, there is a basis for apportionment of that permanent disability to nonindustrial causative sources as found by the WCJ because the CRPS was caused by the surgery to treat [petitioner's] carpal tunnel condition, which is 10 percent nonindustrial and 90 percent industrial as opined by Dr. Hasday. [Citation.]" (Quoting Brodie v. Workers. Comp. Appeals Bd . (2007) 40 Cal.4th 1313, 1328, 57 Cal.Rptr.3d 644, 156 P.3d 1100 (Brodie ).) The Board nonetheless granted the petition for reconsideration, finding the WCJ had failed to take into account medical reports showing petitioner suffered employment-related psychiatric injuries that "need [ ] to be taken into account along with the other industrial causative sources in determining the level of compensable permanent disability resulting from the industrial injury."

The dissent, citing multiple cases holding that an employee is entitled to compensation for new or aggravated injury resulting from the medical or surgical treatment of an industrial injury, stated the WCJ erred "because he apportioned the permanent disability caused by [petitioner's] CRPS based upon the causation of [her] underlying carpal tunnel injury and not upon the cause of her permanent disability.... In that the CRPS causing [petitioner's] total permanent disability resulted entirely from the surgery reasonably performed to treat [her] industrial carpal tunnel injury, it is error to apportion the permanent disability resulting from that medical treatment based upon the causes of the injury that was being treated." (Italics omitted.)

After the Board issued its February 2016 decision remanding the case, petitioner prepared a trial brief urging the WCJ to find her 100 percent disabled based on the psychiatric injury, which she alleged was entirely industrial. Petitioner further contended that the vocational expert's opinion supported a 100 percent award, and that a 100 percent award was required under section 4662, subdivision (b) due to her inability to fully use her arms and hands.⁵ The WCJ increased petitioner's disability award to 98 percent after apportionment. Following issuance of the amended award, petitioner filed a second petition for reconsideration seeking increase in the award on a number of grounds, including the vocational expert's opinion and section 4662. She also asked the Board to revisit the appropriateness of apportionment. By order dated October 25, 2016, the Board again denied reconsideration, finding apportionment appropriate in a two-to-one decision for the reasons previously stated. The writ petition seeking review of the Board's decision was filed December 9, 2016.⁶

DISCUSSION

A. Timeliness of Appeal

Shortly before oral argument, respondents Costco and Helmsman filed a supplemental brief contending the Board's February 8, 2016 opinion was "likely" the "final decision" with respect to the apportionment issue, and that the appeal should be dismissed as untimely. For the reasons set forth below, we disagree.

Section 5950 provides that "[a]ny person affected by an order, decision, or award of the [Board] may ... apply to the Supreme Court or to the court of appeal for the appellate district in which he resides, for a writ of review...." The petition for writ of review must be filed "within 45 days after a petition for reconsideration is denied, or, if a petition is granted or reconsideration is had on the appeal board's own motion, within 45 days after the filing of the order, decision, or award following reconsideration." (§ 5950.) "The failure of an aggrieved party to seek judicial review of a final order of the [Board] bars later challenge to the propriety of the order or decision before either the [Board] or the court." (State Farm General Ins. Co. v. Workers' Comp. Appeals Bd . (2013) 218 Cal.App.4th 258, 261, 159 Cal.Rptr.3d 779.)

Generally, an appeal will not lie to review an order made by the Board where the order remands the matter for a further hearing, leaving issues to be resolved by the WCJ. (Gumilla v. Industrial Acc. Comm . (1921) 187 Cal. 638, 639-640, 203 P. 397 ; Safeway Stores, Inc. v. Workers' Comp. Appeals Bd . (1980) 104 Cal.App.3d 528, 533, 163 Cal.Rptr. 750 (Safeway Stores ).) "Allowing parties to utilize the appellate process on individual issues in a single compensation claim could create a danger of defeating [the California] constitutional objective" of administering the workers' compensation laws to "accomplish justice in all cases ‘expeditiously, inexpensively, and without incumbrance....’ " (Safeway Stores , supra , at p. 533, 163 Cal.Rptr. 750, italics omitted; see Maranian v. Workers' Comp. Appeals Bd . (2000) 81 Cal.App.4th 1068, 1073, 97 Cal.Rptr.2d 418 (Maranian ) ["The well-known final judgment rule that governs general civil appeals was designed to prevent costly piecemeal dispositions and multiple reviews which burden the courts and impede the judicial process"].) At the same time, courts have recognized that permitting early appellate review to resolve certain "threshold issues" may enhance rather than detract from the expeditious resolution of workers' compensation claims. (Safeway Stores , supra , at p. 533, 163 Cal.Rptr. 750 ; Maranian , supra , at p. 1078, 97 Cal.Rptr.2d 418.)

In general, a threshold issue is one "crucial to the employee's right to receive benefits." (Maranian , supra , 81 Cal.App.4th at p. 1078, 97 Cal.Rptr.2d 418 ; see 2 Hanna, Cal. Law of Employee Injuries and Workers' Compensation (2d rev. ed. 2007) § 28.04, p. 28-11 ["A threshold issue is an issue that is basic to the establishment of the employee's rights...