Town of Los Gatos v. Workers' Comp. Appeals Bd.

TOWN OF LOS GATOS et al., Petitioner, v. WORKERS' COMPENSATION APPEALS BOARDand CHARLES HART, Respondents.

H048333

COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT

May 21, 2021

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(W.C.A.B. No. ADJ9478055)

The Town of Los Gatos (Town), permissibly self-insured, petitioned this court for a writ of review of a Workers' Compensation Appeals Board (WCAB) order amending and affirming the award of a workers' compensation judge (WCJ) who found respondent injured worker, Charles Hart, 100 percent permanently disabled. The award included: (1) temporary disability (TD), (2) permanent total disability, (3) cost of living adjustments (COLA) on the permanent total disability payments (Lab. Code,¹ § 4659, subd. (c)), and (4) attorney fees. Town does not challenge the WCAB's awards of TD, permanent total disability, or attorney fees. Its petition for review is limited to the WCAB's order regarding the start date for the COLA's on the permanent total disability award.

Section 4659 provides for COLA's on permanent total disability benefits every January 1 starting the January 1 after the injured worker "becomes entitled to receive . . . total permanent disability indemnity." (§ 4659, subd. (c).) Town challenges the WCAB's finding that the COLA's commenced on January 1, 2012. It contends that the WCAB should have ordered the COLA's to start on January 1, 2017, since Hart was not declared permanent and stationary until November 2016 and since the WCAB ordered it to pay TD for the period August 11, 2011, through November 16, 2016. It also contends that the WCAB's order regarding the start date for the COLA's is contrary to the California Supreme Court's holding in Baker v. Workers' Comp. Appeals Bd. (2011) 52 Cal.4th 434, 437 (Baker). We granted Town's petition for writ of review. Having reviewed the parties' arguments and the entire record, we agree with Town and will hold that the WCAB's order regarding the start date for the section 4659 COLA's is clearly erroneous. We therefore annul the WCAB's order as to the start date for the COLA's and remand for further proceedings.²

I. FACTS AND PROCEDURAL HISTORY

A. Injury Facts, Temporary Disability, and Medical Treatment

Hart started working for Town as an engineering inspector in July 2000. His duties included reviewing construction plans for compliance with building codes, approving plans, and inspecting construction sites to determine whether the work was code compliant.

On August 19, 2003, while inspecting a construction site, Hart slipped, fell onto a pile of rebar, and injured his lower back. Hart reported the injury to his employer and Town accepted liability for the claim. Hart was off work for eight days—from August 20 until August 27, 2003—and returned to work on full duty. Hart was off work again for 30 days in 2004—from July 10 until August 8, 2004—and returned to work on full duty. Hart continued to work for Town until he retired on December 11, 2009, at age 68.

Hart testified that he did not intend to retire in 2009 but when he completed the project he was working on, Town suggested that it was a good time for him to retire, and he therefore retired at his employer's request. He testified that he was unable to do his job because of his industrial injury and there was no other reason to retire. No physician took him off work in 2009 or certified him for a disability retirement, and he did not receive a disability retirement. He did not work for wages after he retired but did do volunteer work at a golf course four to six hours a week and at a senior center snack bar two hours a week.

Hart received continuous medical treatment for his industrial injury from the date of injury in 2003 through the last day of trial in 2019. The initial diagnosis was degenerative lumbar disc disease with facet arthritis. Magnetic resonance imaging (MRI) done in February 2004 revealed a disc protrusion at L4-L5, with mild stenosis of the central canal. In 2004, Hart started to complain of numbness and pain radiating into his left leg and later both legs. Hart initially treated with an orthopedist and then a neurologist, both of whom provided conservative treatment consisting of physicaltherapy, hydrotherapy, exercise, a gym membership, a lumbar corset, a heating pad, and pain medications, including opiates. In 2009, he transferred his care to pain specialist Dr. Ronald Fujimoto and in 2010, he completed a spine rehabilitation program.

At trial, Hart testified that although he continued to perform his full, regular duties, he had ongoing, progressive symptoms in his lower back. He said his medical treatment between his date of injury in 2003 and his retirement in 2009 included "heavy opiate medications," which controlled his pain and allowed him to continue working.

In 2011, Town arranged for Hart to be examined by a qualified medical examiner in orthopedics, Dr. Eugene Baciocco. (Hart was not represented by counsel at that time.) Dr. Baciocco reported that Hart had a "fairly large herniated disc at L4-5 on the right side producing pain radiating down his right leg." He declared Hart's condition permanent and stationary as of January 10, 2011, and opined that Hart had sustained a permanent disability (PD) to his spine described as a 19-percent whole person impairment (WPI), which was "fairly severe in nature." Dr. Baciocco recommended continuing conservative treatment but stated that Hart might require surgery if his symptoms persisted or became more severe.

The concept of WPI is based on the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th edition (hereafter Guides). (Milpitas Unified School Dist. v. Workers' Comp. Appeals Bd. (2010) 187 Cal.App.4th 808, 812, 814 (Guzman).) The Guides define WPI as " '[p]ercentages that estimate the impact on the individual's overall ability to perform activities of daily living, excluding work.' " (Id. at p. 814, fn. 5, citing Guides, p. 603.) In April 2004, the Legislature mandated the use of the Guides to rate PD as part of a major overhaul of the workers' compensation system with the enactment of Senate Bill No. 899 (Senate Bill 899). (Stats. 2004, ch. 34, § 32, eff. Apr. 19, 2004; § 4660, subd. (b)(1).)

The changes mandated by Senate Bill 899 included the amendment of section 4660, which "prescribes the method for determining the percentages ofpermanent disability for workers' compensation purposes" (Chang v. Workers' Comp. Appeals Bd. (2007) 153 Cal.App.4th 750, 753) for injuries occurring before January 1, 2013. (Stats. 2004, ch. 34, § 32; § 4660.) Section 4660, subdivision (a) provides that "[i]n determining the percentages of permanent disability, account shall be taken of" four factors, including: (1) "the nature of the physical injury or disfigurement," (2) "the occupation of the injured employee," and (3) "his or her age at the time of the injury," with (4) "consideration being given to an employee's diminished future earning capacity."

As amended in 2004, section 4660, subdivision (b)(1) provides that "the 'nature of the physical injury or disfigurement' " used to determine the percentage of PD "shall incorporate the descriptions and measurements of physical impairments and the corresponding percentages of impairments published in the [Guides]." The amendment also directed the administrative director of the Division of Workers' Compensation of the Department of Industrial Relations (Administrative Director) to promulgate a new permanent disability rating schedule based in part on the Guides for dates of injury on or after January 1, 2005. (§ 4660, subds. (c), (d); Stats. 2004, ch. 34, § 32.) As so directed, the Administrative Director published a new permanent disability rating schedule effective January 1, 2005, which incorporated the Guides in their entirety. (Guzman, supra, 187 Cal.App.4th at p. 818; see also Dept. of Industrial Relations, Div. of Workers' Comp., Schedule for Rating Permanent Disabilities (January 2005) p. 1-2, hereafter 2005 Schedule.) Section 4660 also provided that the 2005 Schedule applies retroactively to some injuries that occurred before January 1, 2005. (§ 4660, subd. (d).)

A few months after he saw Dr. Baciocco, Hart sought treatment for his industrial injury from neurosurgeon Dr. Jason Lifshutz. Later in 2011, Dr. Lifshutz did surgery on Hart's lower back, which included a two-level spinal fusion and laminectomy at L4-L5and L5-S1.³ Although the surgery initially provided relief, Hart's symptoms eventually worsened, and Dr. Lifshutz referred him to Dr. William Hopkins for pain management.

Dr. Lifshutz did a second surgery in May 2013, which included an interbody fusion at L4 through S1 and a decompression laminectomy at L3 through L5. This effectively extended Hart's spinal fusion to include L3-L4. Hart initially improved after his second surgery. But his condition deteriorated, and he progressively increased his use of opioids to control his pain. In January 2014, Dr. Hopkins took over his care and diagnosed failed back surgery syndrome. In May 2014, Hart obtained legal counsel.

In early 2015, Hart was hospitalized for 24 days for "intractable low back pain." One purpose of the hospital stay was to determine whether Hart might benefit from the use of an intrathecal pump to dispense pain medication directly to his spinal column. Toward the end of his hospital stay, on March 7, 2015, Dr. Hopkins performed surgery to install the intrathecal pump.

Hart saw Dr. Lifshutz in consultation in 2015 and 2016 regarding further surgical intervention. Both times, Dr. Lifshutz determined that Hart was not a good candidate for additional surgery....