Opinion
NOT TO BE PUBLISHED.
WCAB No. SDO0275402.
Petition for writ of review after the Workers' Compensation Appeals Board denied a petition for reconsideration regarding award of permanent disability. Susan L. England, Judge.
IRION, J.
The City of San Diego (the City) petitioned for review of a decision by the Workers' Compensation Appeals Board (WCAB) denying a petition for reconsideration of an award of permanent disability benefits to James W. Brooks in the amount of $30,940. The award was premised on the application of the schedule for rating permanent disabilities that went into effect on January 1, 2005. (Cal. Code Regs., tit. 8, § 9805.)
We granted review, and we now conclude that the WCAB did not err in denying the petition for reconsideration because the schedule for rating permanent disabilities that went into effect on January 1, 2005, applies to this case. Accordingly, we affirm the decision of the WCAB.
I
FACTUAL AND PROCEDURAL BACKGROUND
Brooks has been employed by the City's Fire Department since 1977, rising to the rank of fire captain. In 1999, he tested positive for hepatitis C. Brooks received treatment for his condition, but continued his regular employment duties.
In January 2001, Brooks filed an application for adjudication of his workers' compensation claim with the WCAB.
The City is permissibly self-insured for workers' compensation claims.
Prakash Jay, M.D., examined Brooks for the purpose of conducting a qualified medical evaluation, and issued a report dated June 21, 2001. Dr. Jay's report concluded, among other things, (1) that it was reasonable and medically probable that workplace exposure to blood and bodily fluids contributed to Brooks's hepatitis C; (2) that Brooks's condition was permanent and stationary; (3) that Brooks had no subjective factors of disability, but he did have an objective factor of disability, namely hepatitis C; (4) and that Brooks had no work restrictions. Attached to Dr. Jay's report was a summary form indicating, among other things, that (1) there was no "permanent disability," and (2) Brooks's medical condition was permanent and stationary.
On April 19, 2004, the Legislature passed a comprehensive reform of the workers' compensation laws. (Stats. 2004, ch. 34, § 30.) Among other things, the new law changed the standards by which permanent disability is rated, in many cases impacting the amount that a worker will be compensated for a permanent disability. The new law stated that by January 1, 2005, the Administrative Director of the Division of Workers' Compensation was to revise the schedule for rating permanent disabilities, using, among other things, "the descriptions and measurements of physical impairments and the corresponding percentages of impairments published in the American Medical Association (AMA) Guides to the Evaluation of Permanent Impairment (5th Edition)" (the AMA Guides). (Lab. Code, § 4660, subds. (b)(1), (e).) The schedule was revised and became effective on January 1, 2005 (the new schedule). (Cal. Code Regs., tit. 8, § 9805.)
"Permanent disability payments are calculated by first expressing the degree of permanent disability as a percentage and then converting that percentage into an award based on a table. (§ 4658.)" (Brodie v. Workers' Comp. Appeals Bd. (2007) 40 Cal.4th 1313, 1320 (Brodie), fn. omitted.) The percentage of disability is also referred to as a "rating."
Unless otherwise noted, all further statutory references are to the Labor Code.
We will refer to the schedule for rating permanent disabilities in effect before the new schedule as the "old schedule."
According to the City's representation, hepatitis C was not ratable as a permanent disability under the old schedule. As the parties have explained to us, based on this fact together with the lack of any apparent work restrictions applicable to Brooks, Dr. Jay found in 2001 that Brooks did not have a ratable permanent disability. However, hepatitis C is ratable as a permanent disability under the new schedule.
On July 18, 2005, Dr. Jay issued a supplemental report. Referring to the new standards for rating permanent disabilities, which incorporate the AMA Guides, Dr. Jay stated, "Although I had previously noted that [Brooks] had no work restrictions, at this time I feel that his permanent impairment is to be evaluated based on the [AMA Guides]." Applying the AMA Guides, Dr. Jay concluded that "Mr. Brooks has 25% impairment of the whole person due to his chronic liver disease due to hepatitis C." Read as a whole, it is clear that the supplemental report does not rely on any significant developments in Brooks's medical condition for its conclusion regarding Brooks's impairment. Instead, the supplemental report appears to have been issued to enable Dr. Jay to apply the newly applicable standards to Brooks's case. As the supplemental report shows, applying the new standards leads to a 25 percent permanent disability rating, whereas applying the old standards Brooks was rated as not permanently disabled.
Based on our reading of the record, it appears that Brooks's claim had not been conclusively resolved by a workers' compensation law judge (WCJ) by the time of Dr. Jay's 2005 report. Thus after Dr. Jay issued his 2005 report, Brooks was able, on July 27, 2005, to file a declaration of readiness to proceed with a hearing on his claim, and to thereafter obtain a ruling from a WCJ, for the first time, as to his permanent disability rating and the permanent disability benefits owed to him by the City.
The record is not clear as to the reason for the delay between Brooks's filing of his claim in 2001 and the adjudication of his claim by the WCJ in 2006. We note however, that the parties stipulated, and the WCJ ruled, that because Brooks has an insidious disease, the WCAB is to retain jurisdiction over the issue of permanent disability.
The major disputed issue before the WCJ was whether the new schedule or the old schedule for rating permanent disabilities governed Brooks's claim. After holding a hearing, the WCJ determined that the new schedule applied to Brooks's claim, and it found the existence of a compensable permanent disability, awarding $30,940 to Brooks.
The WCJ's final decision followed its initial decision, also applying the new schedule, that the City challenged before the WCAB in a petition for reconsideration. Without considering the merits, the WCAB panel remanded the matter to the WCJ to apply a new decision by an en banc panel of the WCAB.
The City filed a petition for reconsideration with the WCAB. The WCAB denied the petition, agreeing with the analysis in the WCJ's report and recommendation to the WCAB regarding the petition for reconsideration.
The City filed a petition for writ of review in this court, focusing solely on the issue of whether the new schedule or the old schedule governs Brooks's claim. We issued a writ of review to address the issue raised by the City.
II
DISCUSSION
A. Applicable Statutory Provision
When amending the workers' compensation laws in 2004, the Legislature included a provision describing which injured workers would be covered by the new schedule for rating permanent disabilities. (§ 4660, subd. (d).) Section 4660, subdivision (d) states that the new schedule for rating permanent disabilities shall apply to all claims except certain claims that arose before January 1, 2005.
"The schedule shall promote consistency, uniformity, and objectivity. The schedule and any amendment thereto or revision thereof shall apply prospectively and shall apply to and govern only those permanent disabilities that result from compensable injuries received or occurring on and after the effective date of the adoption of the schedule, amendment or revision, as the fact may be. For compensable claims arising before January 1, 2005, the schedule as revised . . . shall apply to the determination of permanent disabilities when there has been either no comprehensive medical-legal report or no report by a treating physician indicating the existence of permanent disability, or when the employer is not required to provide the notice required by Section 4061 to the injured worker." (§ 4660, subd. (d).)
B. Standard of Review
Our review of this case requires us to interpret section 4660, subdivision (d) and apply it to the undisputed facts of this case. We apply a de novo standard of review when interpreting a statute, but we also apply the principle that "the WCAB's [statutory] construction is entitled to great weight unless clearly erroneous." (Green v. Workers' Comp. Appeals Bd. (2005) 127 Cal.App.4th 1426, 1435 (Green).)
"Generally, in interpreting legislation, we first look to the plain or ordinary meaning of the language used to determine the Legislature's intent, unless the language is uncertain. Every word and clause is given effect so that no part or provision is useless, deprived of meaning, or contradictory." (Green, supra, 127 Cal.App.4th at p. 1435, fn. omitted.) " ' " 'When used in a statute [words] must be construed in context, keeping in mind the nature and obvious purpose of the statute where they appear.' [Citations.] Moreover, the various parts of a statutory enactment must be harmonized by considering the particular clause or section in the context of the statutory framework as a whole." ' " (Phelps v. Stostad (1997) 16 Cal.4th 23, 32.)
C. Statutory Analysis
Disputing the WCAB's analysis, the City argues that under the terms of the third sentence of section 4660, subdivision (d), the new schedule is inapplicable here because (1) Brooks asserted a "compensable claim[] arising before January 1, 2005," and (2) before January 1, 2005, there was a comprehensive medical-legal report within the meaning of the statute. Brooks takes issue with both predicates of the City's argument.
1. The Compensable Claim At Issue Here Arose Before January 1, 2005
The first issue is whether this case involves a "compensable claim[] arising before January 1, 2005." (§ 4660, subd. (d).) The City claims that because Brooks's injury occurred before January 1, 2005, a compensable claim did arise before that time. Brooks's position, on the other hand, is that when an employer disputes a claim, a compensable claim does not "aris[e]" within the meaning of the third sentence of section 4660, subdivision (d) until there has been an adjudication that the claim is compensable.
Based on a reading of the statutory language in the context of the language surrounding it, we agree with the City and we reject Brooks's interpretation as implausible. Considering section 4660, subdivision (d) as a whole, the only logical interpretation of the phrase "compensable claim[] arising" in the third sentence is that it is meant to cover all of those claims not addressed in the second sentence of subdivision (d). The second sentence of subdivision (d) states that the new schedule will apply prospectively to "permanent disabilities that result from compensable injuries received or occurring on and after the effective date and adoption of the schedule." (§ 4660, subd. (d).) The third sentence is most logically understood to address all of those claims not already covered by the first sentence — i.e., those injuries occurring before the adoption of the new schedule. When the third sentence is understood in this way, it becomes clear that the term "compensable claims arising before January 1, 2005" is simply a shortened way of expressing what could also have been expressed using the terminology in the second sentence: "permanent disabilities that result from compensable injuries received or occurring" before January 1, 2005. (Ibid.) We conclude that the second sentence covers the manner in which the new schedule will apply to injuries received or occurring after January 1, 2005, and the third sentence covers the manner in which the new schedule will apply to injuries received or occurring before January 1, 2005.
As we have noted, the statute requires that the new schedule be adopted by January 1, 2005. (§ 4660, subd. (e).) The new schedule was in fact made effective as of January 1, 2005. (Cal. Code Regs., tit. 8, § 9805.)
Further, under California statutory law, claims for permanent disability benefits arise for purposes of the statute of limitations at a time earlier than when they are adjudicated to be compensable. Thus, for instance, an employee must file a claim within one year of certain landmark events, including the date of the injury, the date of the last indemnity payment or the date that medical benefits were last furnished. (Lab. Code, § 5405; 2 Hanna, Cal. Law of Employee Injuries and Workers' Compensation (2d rev.ed. 2007) § 24.03[1], pp. 24-12 to 24-14.) Thus a claim arises for the purpose of the statute of limitations long before a claim is adjudicated as compensable. Without any indication to the contrary, we will not assume that the Legislature intended to diverge from this general approach, and we thus conclude that the Legislature did not intend section 4660, subdivision (d) to mean that a claim arises only when it is adjudicated to be compensable.
Here, because it is undisputed that Brooks's injuries occurred before January 1, 2005, his case involves a "compensable claim[] arising before January 1, 2005," and is thus governed by the third sentence of section 4660, subdivision (d).
2. The New Schedule Applies Because Dr. Jay's 2001 Report Did Not Indicate the Existence of Permanent Disability
Having determined that the claim here arose before January 1, 2005, we turn to the next issue in deciding whether the new schedule must apply: whether "there has been either no comprehensive medical-legal report or no report by a treating physician indicating the existence of permanent disability, or . . . the employer is not required to provide the notice required by Section 4061 to the injured worker." (§ 4660, subd. (d).)
The City contends that that a comprehensive medical-legal report was issued before January 1, 2005. Brooks does not dispute this fact, agreeing that Dr. Jay's June 21, 2001 report was a "comprehensive medical-legal report." However, he asks us to reject the City's argument by interpreting the statute to require a "comprehensive medical-legal report . . . indicating the existence of permanent disability." (§ 4660, subd. (d).) He argues that Dr. Jay's comprehensive medical-legal report did not indicate the existence of permanent disability because, as indicated in Dr. Jay's report, Brooks did not have a ratable disability under the standards applicable at the time. Brooks argues that, accordingly, the WCAB was correct in ruling that the new schedule applies and we should reject the City's argument.
We note that the statute does not expressly state that the medical-legal report (or the treating physician's report or the requirement to send a section 4061 notice that are also referred to in the same sentence) has to have been issued before January 1, 2005, for the old schedule to apply. However, the parties appear to agree on such an interpretation, and we concur. January 1, 2005, is the date on which the new schedule became effective. (Cal. Code Regs., tit. 8, § 9805.) The statute is most reasonably read to mean that the new schedule can be applied to claims as of its effective date, unless, as of the effective date of the schedule, one of the three circumstances described in the third sentence of section 4660, subdivision (d) exist. If the old schedule were to apply in each case in which a medical-legal report, a treating physician's report or a notice under section 4061 was issued at any point in the proceedings, even after January 1, 2005, almost every permanent disability case would fall under the old schedule because at some point almost every case involves the preparation of a treating physician's report, a medical-legal report or the giving of a section 4061 notice. This interpretation would make the exceptions set forth in the third sentence of section 4660, subdivision (d) so broad that they would cease to function as exceptions, and would render meaningless the Legislature's statement that the new schedule will apply unless certain exceptions apply. We thus infer a cutoff date of January 1, 2005, for the issuance of a medical-legal report as described in the third sentence of section 4660, subdivision (d).
In connection with the determination of permanent disability benefits, the parties may obtain a comprehensive medical-legal evaluation from a physician when there is a dispute as to the compensability of an injury (§ 4060, subds. (c), (d)) or when the parties do not agree to a permanent disability rating based on a treating physician's evaluation (§ 4061, subds. (c), (d)). The report of the physician who conducts a comprehensive medical-legal evaluation is commonly referred to as a "medical-legal report." (See, e.g., Lab. Code, § 4628; Cal.Code.Regs., tit. 8, §§ 111 [instructions section], 9795, subd. (b).)
The full statutory phrase at issue states that "the schedule as revised . . . shall apply to the determination of permanent disabilities when there has been either no comprehensive medical-legal report or no report by a treating physician indicating the existence of permanent disability." (§ 4660, subd. (d).) Brooks argues that the phrase "indicating the existence of permanent disability" modifies both the phrase "comprehensive medical-legal report" and the phrase "report by a treating physician."
We begin our interpretation of the statute by applying the principle of statutory construction known as the "last antecedent rule." " 'A longstanding rule of statutory construction — the "last antecedent rule" — provides that "qualifying words, phrases and clauses are to be applied to the words or phrases immediately preceding and are not to be construed as extending to or including others more remote." ' " (Renee J. v. Superior Court (2001) 26 Cal.4th 735, 743 (Renee J.).) Here, because the phrase "indicating the existence of permanent disability" immediately follows the phrase "report by a treating physician," it would normally be understood under the last antecedent rule to modify that phrase and not to modify the phrase "comprehensive medical-legal report."
However, courts do not always follow the last antecedent rule when interpreting a statute. The rule will not apply when "the sense of the entire act requires that a qualifying word or phrase apply to several preceding words," which is " 'of course, but another way of stating the fundamental rule that a court is to construe a statute " 'so as to effectuate the purpose of the law.' " ' " (Renee J., supra,26 Cal.4th at pp. 743, 744.) In deciding whether to apply the last antecedent rule, " '[w]e must . . . give the provision a reasonable and commonsense interpretation consistent with the apparent purpose and intention of the lawmakers, practical rather than technical in nature, which upon application will result in wise policy rather than mischief or absurdity.' " (Id. at p. 744.)
Here, as we will explain, putting the statutory language in context, we conclude that it is not reasonable for the Legislature to have determined that a case should be governed by the schedule for rating permanent disabilities in effect at the time the medical-legal report is issued, whether or not the medical-legal report indicates the existence of permanent disability. Accordingly, we will not apply the last antecedent rule.
As is evident from the applicable statutes, and as confirmed by the City at oral argument, a comprehensive medical-legal report will be issued in a number of different situations, some of which have nothing to do with the question of an applicant's permanent disability rating. Although comprehensive medical-legal reports may be prepared to challenge a treating physician's evaluation when the parties cannot agree to a permanent disability rating based on that evaluation (see § 4061, subds. (c), (d)), they may also be prepared in situations not touching upon a permanent disability rating, such as when a party seeks a comprehensive medical-legal report to determine whether an injury is compensable. (See § 4060, subds. (c), (d).)
When a comprehensive medical-legal report indicates the existence of a permanent disability, it will likely address the applicant's permanent disability rating, and, if issued before January 1, 2005, when the new schedule was adopted, that comprehensive medical-legal report will necessarily describe the employee's impairments based on the old schedule for rating permanent disabilities. In such cases, it makes sense that the old schedule should govern the applicant's case so that the examining physician need not be asked to prepare an additional medical-legal report based on new standards, such as the AMA Guides.
However, where the medical-legal report does not address the applicant's permanent disability rating, there is no logical reason for the preparation of a comprehensive medical-legal report to be the event that triggers the application of either the old schedule or the new schedule for rating permanent disabilities. As the First District recently explained in Costco Wholesale Corp. v. Workers' Comp. Appeals Bd. (2007) 151 Cal.App.4th 148, 154, "a pre-2005 medical-legal report written about issues other than permanent disability, or a report that considered the issue but found no permanent disability, would supply no logical basis for applying the earlier rating schedule." Agreeing with our colleagues in Costco,we conclude that the most sensible reading of section 4660, subdivision (d) is that the Legislature intended the phrase "indicating the existence of permanent disability" to modify the term "comprehensive medical-legal report" in order to narrow the universe of all comprehensive legal reports to those that likely concern the rating of permanent disabilities.
Our interpretation of the statute is consistent with the interpretation by the WCAB, which has concluded that the preparation of a comprehensive medical-legal report before January 1, 2005, will trigger the application of the old schedule only when the comprehensive medical-legal report indicates the existence of permanent disability. (Baglione v. Hertz Car Sales (2007) 72 Cal.Comp.Cas. 444.) We are required to "give weight to its interpretations of workers' compensation statutes unless they are clearly erroneous or unauthorized." (Brodie, supra, 40 Cal.4th at p. 1331.) Based on the analysis set forth above, the WCAB's interpretation is not clearly erroneous; nor is it unauthorized. Accordingly, we are bound to follow it, and we rely on it here as further support for our conclusion.
Having concluded that a comprehensive medical-legal report prepared before January 1, 2005, will trigger the application of the old schedule only when that report indicates the existence of permanent disability, we next examine whether Dr. Jay's 2001 report indicated the existence of permanent disability. As we will explain, we conclude that it does not.
As we interpret the statutory language, the term "permanent disability" has two separate and independent components: (1) the applicant has a ratable disability, and (2) the status of that disability is "permanent and stationary" as that term is used in the workers' compensation statutes. Here, although Dr. Jay's report indicates that Brooks had reached permanent and stationary status as of 2001, the report also clearly indicates that Brooks does not have a ratable disability.
As we understand the facts, because Brooks's disease did not cause any work restrictions, according to the standard in effect in 2001 his disease did not result in a ratable permanent disability.
In sum, because it unequivocally stated that Brooks did not have a ratable disability, Dr. Jay's 2001 report was not a comprehensive medical-legal report indicating the existence of permanent disability. Accordingly, Dr. Jay's 2001 report does not trigger the application of the old schedule, and we agree with the WCAB that the new schedule governs the rating of permanent disability in this case.
DISPOSITION
The decision of the WCAB is affirmed.
WE CONCUR: BENKE, Acting P. J., AARON, J.
We note that at oral argument, Brooks argued that because he was receiving treatment for his disease between Dr. Jay's 2001 report and Dr. Jay's 2005 report, Dr. Jay's 2001 report was not a report indicating that Brooks had reached permanent and stationary status as required for the indication of a permanent disability. We need not address this argument, as we rule in favor of Brooks on a different ground, i.e., based on that fact that Dr. Jay's 2001 report did not indicate the existence of ratable disability in 2001.