Opinion
NOT TO BE PUBLISHED
W.C.A.B. Nos. ADJ3752774 [LAO0852544]; ADJ805012 [LAO0852543]
State Compensation Insurance Fund, Suzanne Ah-Tye, Chief Counsel, Patricia Brown, Deputy Chief Counsel, and Don E. Clark, Senior Appellate Counsel, for Petitioner State Compensation Insurance Fund.
Luis G. Torres for Respondent Vincente Romero.
PERLUSS, P. J.
State Compensation Insurance Fund (State Fund) petitioned for a writ of review of an opinion and order of the Workers’ Compensation Appeals Board (WCAB) denying reconsideration of the findings of fact and award of the workers’ compensation administrative law judge (WCJ), who had declined to reopen and set aside the parties’ stipulation that Vicente Romero had suffered an industrial injury but did reopen and increase the stipulated award of 35 percent permanent disability to 100 percent. We agree the WCAB properly refused to set aside the stipulation to industrial injury but conclude it was error to award increased permanent disability.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Original Stipulation and Request for Award
On July 5, 2002 Romero, while employed as a bus driver by Four Winds, Inc., suffered a stroke and sustained injury to his “internal system.” State Fund was Four Winds’ workers’ compensation insurance carrier.
In a January 11, 2006 report Dr. Nachman Brautbar, Romero’s consulting physician, concluded the stroke had been caused by infective endocarditis, “an infection of the tissue inside the heart and valves.” Dr. Brautbar opined the agent causing the infection was streptococcus, which most commonly gains access into the circulatory system through dental treatment (tooth extractions, for example) or a skin infection with open sores. Dr. Brautbar ruled out dental treatment as the source of entry in this case because he saw no evidence of dental procedures in the several weeks prior to the stroke and Romero’s wife, when questioned specifically about dental work, denied that her husband had had any dental treatment. However, according to both Romero and his wife, Romero had injured his finger with a hammer at work, causing his nail to come off. Dr. Brautbar indicated the streptococcus could have entered Romero’s system through a skin infection or open sore on the finger. Nonetheless, Dr. Brautbar concluded, based on the information available to him at that time, “I cannot establish or rule out causation. Nevertheless, it is clear that the patient is totally and permanently disabled.”
The injury had been reported to Romero’s supervisor.
On December 11, 2006 Romero and State Fund entered in a stipulation with request for award, specifying Romero had suffered industrial injury to his internal system with temporary disability, permanent disability at 35 percent and provisions for future medical care. The stipulation and request for award was approved by the WCJ. The award was not appealed.
2. Romero’s Petition To Reopen; State Fund’s Petition To Reduce Disability
Six months later, on June 5, 2007, Romero filed a petition to reopen for new and further disability pursuant to Labor Code sections 5410 and 5803. Dr. Alvin Markovitz was designated as the agreed medical evaluator (AME). In his report dated February 5, 2008, following a review of medical records and personal examination of Romero, Dr. Markovitz explained that records from Torrance Memorial Medical Center indicated Romero had, in fact, undergone a dental procedure two or three weeks before his stroke. According to Dr. Markovitz, “an improper review of medical records and an improper interpretation of the nature of the organism has led to false conclusions in this case.” Dr. Markovitz opined a streptococcus infection like Romero’s was unlikely to have developed from a puncture and “invariably occurs after a dental procedure.” Dr. Markovitz stated Romero had a history of subacute bacterial endocarditis caused by strep viridians, a normal flora of the oral cavity, and opined that the infection became blood-borne during a dental procedure, resulting in cerebral emboli to the brain with permanent damage—a nonindustrial condition. Dr. Markovitz agreed that Romero was totally disabled and unable to care for himself, but observed, “I don’t know what the 35% was based on because frankly he has been totally disabled ever since he had the stroke.”
Statutory references are to the Labor Code.
On April 14, 2008 State Fund filed a petition to reduce disability alleging, based on Dr. Markovitz’s AME report, Romero’s injury was entirely nonindustrial. Romero answered, asserting State Fund’s petition, filed more than five years after the date of injury, was untimely and the prior stipulation and award binding.
3. The WCJ’s Decision; the WCAB’s Denial of Reconsideration
The WCJ denied State Fund’s petition; granted Romero’s petition, increasing permanent disability to 100 percent; and awarded Romero $10,000 in attorney fees as costs pursuant to section 4607, which authorizes an award of fees to an employee who successfully resists proceedings initiated to terminate his or her award of medical treatment. The WCJ noted information regarding Romero’s dental procedures was available at the time the parties entered into their original stipulation and request for award. State Fund, “with the exercise of due diligence, could have discovered medical evidence sufficient to deny the original injury and the future medical care award.” Accordingly, the WCJ denied the petition to terminate future medical care, explaining, “it would be disingenuous of defendant to withdraw from its obligations pursuant to the award.” The WCJ further found good cause to reopen as to the extent of permanent disability, based on Romero’s timely petition and Dr. Markovitz’s AME report, stating that Romero’s “level of disability has increased. Applicant is now precluded from work in the open labor market.” The WCJ found Romero’s current permanent disability level to be 100 percent.
State Fund petitioned the WCAB for reconsideration. Acknowledging there were references to Romero’s dental treatment in the Torrance Memorial Hospital records that Dr. Brautbar had reviewed, State Fund nonetheless argued it was not disingenuous to rely on Dr. Brautbar’s statement that causation could not be determined until it learned “the realities of causation” from Dr. Markovitz’s AME report. State Fund asserted section 5803 provided the WCAB with continuing jurisdiction to reduce or rescind the original award for good cause. State Fund also argued the evidence did not justify the finding of increased permanent disability.
In the report on State Fund’s petition for reconsideration, the WCJ again asserted the information cited in the AME report regarding causation was available at the time State Fund entered into the stipulated award. The WCJ added, under section 5804 and Barnes v. Workers’ Comp. Appeals Bd. (2000) 23 Cal.4th 679 (Barnes), the parties’ stipulation cannot be amended or rescinded unless the petition to reduce or end benefits was filed within five years of the date of injury or within 30 days of Romero’s petition to reopen as a counterpetition.
The WCAB denied the petition for reconsideration, adopting and incorporating the reasons expressed in the WCJ’s report. The WCAB also relied on the Court of Appeal decision in County of Sacramento v. Workers’ Comp. Appeals Bd. (2000) 77 Cal.App.4th 1114, 1120-1121, which held the parties’ stipulation at a mandatory settlement conference to the absence of a claim for cumulative trauma could not be set aside because it was bad for the injured worker or not supported by the evidence at the time the request to set aside was made: “‘“[T]he point of a stipulation is to obviate the need for proof.”’” Finally, the WCAB ruled, even if State Fund’s petition was not untimely, the prior determination of industrial causation to which it had stipulated was now res judicata.
DISCUSSION
1. State Fund’s Petition To Reduce Disability Was Properly Denied as Untimely
The WCAB has continuing jurisdiction over its orders and awards, including the power to increase, diminish, rescind or terminate awards upon a showing of good cause. (§ 5803 [“The appeals board has continuing jurisdiction over all its orders, decisions, and awards.... At any time, upon notice and after an opportunity to be heard is given to the parties in interest, the appeals board may rescind, alter, or amend any order, decision, or award, good cause appearing therefor.”].) Unless the WCAB is acting pursuant to a timely petition or counterpetition, however, section 5804 limits its continuing jurisdiction to a period five years from the date of injury: “No award of compensation shall be rescinded, altered, or amended after five years from the date of the injury except upon a petition by a party in interest filed within such five years and any counterpetition seeking other relief filed by the adverse party within 30 days of the original petition raising issues in addition to those raised by such original petition.” The jurisdictional nature of section 5804’s five-year limit was confirmed in Barnes, supra, 23 Cal.4th 679, in which the Supreme Court reversed a WCAB decision granting a petition to terminate a 13-year-old award of future medical treatment based on an AME report concluding the employee’s continuing pain was not traceable to the original injury. (Barnes, at pp. 682-684.) The Court held section 5804 establishes a five-year statute of limitations for rescinding, altering or amending “to foster both certainty and finality in the law.” (Barnes, at p. 686.) “[A]lthough an employer may petition to terminate a provisional award for future medical benefits by legitimately claiming new information, once five years have passed the Board loses jurisdiction to hear such a claim.” (Id. at p. 687.)
The Barnes Court also held, although the WCAB no longer had jurisdiction to terminate the award in its entirety, it retained jurisdiction “to determine whether a particular medical treatment... is justified to treat [an employee’s] industrial injury.” (Barnes, supra, 23 Cal.4th at p. 687.)
Romero suffered his stroke on July 5, 2002. His petition to reopen for new and further disability was filed on June 5, 2007. State Fund’s petition to reduce disability based on Dr. Markovitz’s AME report, however, was not filed until April 14, 2008, more than five years after the date of injury and more than 30 days after Romero’s petition for new and further disability. Accordingly, whether or not good cause to reopen may have existed—that is, whether State Fund reasonably relied on Dr. Brautbar’s report or should have learned the actual cause of Romero’s endocarditis prior to stipulating to industrial injury—the WCJ and the WCAB properly concluded they lacked jurisdiction to consider State Fund’s petition. (§ 5804; Barnes, supra, 23 Cal.4th at pp. 686-687.)
State Fund suggests, even though its petition to reduce disability was untimely, the relief it sought—rescission of the parties’ stipulation—was properly presented and should have been addressed by the WCAB because Romero had filed a timely petition to reopen, which sought to modify the award originally requested through the stipulation. Under Bland v. Workmen’s Comp. App. Bd. (1970) 3 Cal.3d 324, State Fund argues, once the WCAB has jurisdiction under section 5804 to amend its earlier award, it may consider granting whatever relief is appropriate based on the record before it. State Fund reads Bland far too broadly. The Supreme Court held only that an injured employee’s timely petition to reopen seeking an increase in permanent disability benefits afforded the WCAB jurisdiction to award him temporary disability as well. (Bland, at p. 331.) “[T]he petition for the greater award of permanent disability necessarily included an award of lesser temporary disability. The petition thus sufficed to support the board’s jurisdiction to award temporary disability ‘upon a petition by a party in interest filed within such five years.’” (Id. at p. 332.) State Fund’s request to terminate all benefits to Romero, of course, is in no way a lesser award included within Romero’s petition to increase permanent disability and was not properly before the WCAB absent a timely counterpetition. (See Selden v. Workers’ Comp. Appeals Bd. (1986) 176 Cal.App.3d 877, 883 [Bland applies only to relief sought by petitioner filing petition to reopen pursuant to § 5804; request for other relief by adverse party must be made in counterpetition filed within 30 days of the petition to reopen raising issues in addition to those raised in the original petition].)
The Bland Court’s holding is consistent with the principle that the workers’ compensation laws “shall be liberally construed by the courts with the purpose of extending their benefits for the protection of persons injured in the course of their employment.” (§ 3202; see Bland v. Workmen’s Comp. App. Bd., supra, 3 Cal.3d at pp. 330-331.) State Fund acknowledges it is not entitled to the benefit of this doctrine.
2. Romero Was Properly Awarded Attorney Fees as Costs
Section 4607 provides, “Where a party to a proceeding institutes proceedings to terminate an award made by the appeals board to an applicant for continuing medical treatment and is unsuccessful in such proceedings, the appeals board may determine the amount of attorney’s fees reasonably incurred by the applicant in resisting the proceedings to terminate the medical treatment, and may assess such reasonable attorney’s fees as a cost upon the party instituting the proceedings to terminate the award of the appeals board.” (See generally Smith v. Workers’ Comp. Appeals Bd. (2009) 46 Cal.4th 272, 280 [§ 4607 authorizes awards of attorney fees only to employees who successfully resist proceedings initiated to terminate medical treatment awards; statute does not permit award of fees to an employee who successfully challenges the denial of a specific treatment request].)
After denying State Fund’s petition to grant relief from the stipulated award of industrial injury and future medical care, the WCJ found Romero’s counsel had provided reasonable and necessary services to preserve Romero’s award. Reducing the fee request to eliminate the overlap in legal services provided to resist termination of the future medical care award and services in furtherance of Romero’s petition to increase permanent disability, the WCJ awarded $10,000 in attorney fees as costs pursuant to section 4607.
On appeal State Fund argues, if there was good cause to set aside the parties’ stipulation to industrial injury, then the award under section 4607 should also be set aside. State Fund makes no other challenge to the award of attorney fees as costs. Accordingly, because we affirm the decision to deny State Fund’s petition, we also affirm the award of fees.
3. The Award of Increased Permanent Disability Was Error
Section 5410 authorizes an injured worker, within five years of the date of his or her original injury, to request an award of increased benefits “upon the ground that the original injury has caused new and further disability.” In Nicky Blair’s Restaurant v. Workers’ Comp. Appeals Bd. (1980) 109 Cal.App.3d 941, Division Three of this court, after noting that section 5410 does not define the phrase “new and further disability, ” held, “[T]he phrase refers to disability which must be both ‘new’ and ‘further.’ [Citation.] ‘The phrase “further disability” presupposes that such disability is in addition to that disability for which proceedings were timely commenced or for which compensation already was paid [citation]. It has also been recognized “[s]ome significance must be given to the word ‘new.’”’” (Nicky Blair’s Restaurant, at p. 954; accord, Sarabi v. Workers’ Comp. Appeals Bd. (2007) 151 Cal.App.4th 920, 926.)
State Fund admits Romero is permanently totally disabled. Dr. Markovitz confirmed that in his AME report. But Dr. Brautbar also found Romero was “totally and permanently disabled” in his medical report, which provided the basis for the parties’ stipulation and award of 35 percent permanent disability. Although Romero filed a timely petition to reopen for new and further disability, neither the nature nor extent of his permanent disability has changed with time (although it is concededly greater than 35 percent); no medical evidence suggests it has. Thus, there is simply no “new and further disability” that supports an award of increased permanent disability of 100 percent under section 5410.
Similarly, the WCAB’s continuing jurisdiction under sections 5803 and 5804 to reopen a case and to amend an award upon a showing of good cause does not provide a proper basis to increase Romero’s permanent disability. The cases construing sections 5803 and 5804 “have recognized that a variety of factors and circumstances may constitute the requisite ‘good cause.’ For example, ‘good cause’ may be established by newly discovered evidence which could not have been produced at the original hearing and which indicates a more extensive disability than that recognized by the original findings.... [¶] Moreover, it is well settled that any factor or circumstance unknown at the time the original award or order was made which renders the previous findings and award ‘inequitable, ’ will justify the reopening of a case and amendment of the findings and award.” (LeBoeuf v. Workers’ Comp. Appeals Bd. (1983) 34 Cal.3d 234, 241-242.)
Romero’s permanent total disability was known at the time of the parties’ stipulation and request for award. Dr. Markovitz’s opinion, although prepared two years after Dr. Brautbar’s evaluation, did not constitute newly discovered evidence unavailable at the time of the original findings, nor was there any mistake of fact, fraud or other circumstance amounting to good cause to amend the original award. (See Nicky Blair’s Restaurant v. Workers’ Comp. Appeals Bd., supra, 109 Cal.App.3d at pp. 955-957.)
DISPOSITION
The petition for writ of review is granted in part and denied in part. The award of increased permanent disability from 35 percent to 100 percent is annulled. In all other respects the award is affirmed.
We concur: WOODS, J.JACKSON, J.