NOT TO BE PUBLISHED IN OFFICIAL REPORTS IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

Transcription

1 Filed 4/30/10 Leprino Foods v. WCAB (Barela) CA5 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule (a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule (b). This opinion has not been certified for publication or ordered published for purposes of rule IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT LEPRINO FOODS, Petitioner, F v. WORKERS COMPENSATION APPEALS BOARD and JOEY BARELA, (WCAB No. ADJ ) O P I N I O N Respondents. THE COURT * ORIGINAL PROCEEDINGS; petition for writ of review from a decision of the Workers Compensation Appeals Board. James C. Cuneo, Frank M. Brass, and Alfonso J. Moresi, Commissioners. Keigo Obata, Workers Compensation Administrative Law Judge. Grancell, Lebovita, Stander, Barnes and Reubens and David J. Chun, for Petitioner. No appearance by Respondent Workers Compensation Appeals Board. Douglas A. Low, for Respondent Joey Barela. -ooooo- * Before Wiseman, Acting, P.J., Gomes, J., and Hill, J.

2 Leprino Foods (Leprino) petitions this court for a writ of review from a decision of the Workers Compensation Appeals Board (WCAB). (Lab. Code, ; Cal. Rules of Court, rule ) Leprino contends the WCAB erred in awarding an injured employee a higher level of permanent disability after self-procuring a medical surgery legally denied by the employer. Finding no legal prohibition against an injured worker obtaining medical treatment outside the workers compensation system and substantial evidence to support the WCAB s decision the treatment obtained was both reasonable and necessary, we will deny the petition. BACKGROUND Joey Barela injured his low back on August 31, 2005, while working as a dry mixer operator for Leprino. Through its self-insured administrator Matrix Absence Management, Leprino admitted the injury was industrially related, but disagreed with Barela s primary treating physician, E. Scott Conner, M.D., regarding the appropriate course of medical treatment. Leprino objected to Dr. Conner s recommendation to perform discectomy and fusion spinal surgery, initiated a utilization review, 2 and requested a second opinion from Charles Wrobel, M.D. ( 4062, subd. (b).) Agreeing with Leprino s utilization review, Dr. Wrobel recommended in a July 31, 2006, report that the surgery not be performed. The parties engaged Robert D. Ansel, M.D., as an agreed medical evaluator (AME). In his initial March 12, 2007, AME report, Dr. Ansel acknowledged the existence of pros and cons in performing fusion surgery that had already been addressed by Dr. Conner, but concluded that based on minimal clinical findings and 1 Further statutory references are to the Labor Code. 2 Section 4610 requires every employer to establish a utilization review process when reviewing and resolving any and all requests for medical treatment. (State Comp. Ins. Fund v. Workers Comp. Appeals Bd. (2008) 44 Cal.4th 230, 236, italics removed.) 2

3 Barela s age, such a surgery would not provide [Barela] any long-term relief and indeed, if anything, will serve as the nidus for future increased problems. Dr. Ansel therefore concur[red] at the present time that a two-level surgery [was] neither reasonable nor appropriate. Acknowledging Barela s continued subjective complaints, Dr. Ansel rated Barela at the upper end of the Diagnosis Related Estimates (DRE) Category II with an 8- percent whole person impairment under the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th Edition (AMA Guides). 3 Utilizing private health insurance, Barela nevertheless underwent surgery with Dr. Conner on March 23, The parties agree the surgery was self-procured outside the workers compensation system and not authorized by Leprino. Dr. Ansel issued a supplemental medical-legal report on April 9, 2007, reaffirming his opinion that Barela rated at DRE Category II with an 8-percent impairment. But when questioned by counsel at a June 11, 2007, deposition, Dr. Ansel reconsidered his assessment and concluded he should have placed Barela at the lower end of DRE Category III with a 10-percent whole person impairment. On October 22, 2007, after a 40-minute interview with Barela, Dr. Ansel confirmed in a written report that Dr. Conner s surgery had been successfully performed, with Barela s pain greatly reduced, and that he once again would place [Barela] in DRE Category III, providing him a 10% whole person impairment. Dr. Ansel based his conclusion on specific objective findings mentioned in the report. In a November 12, 2007, supplemental report, Dr. Ansel acknowledged spinal fusion surgery is controversial and questioned whether improvement will persist in the 3 As part of the 2004 comprehensive [workers compensation] revisions, the Legislature amended section 4660 to require a new rating schedule incorporating the American Medical Association (AMA) guidelines for the evaluation of permanent disability. (Bontempo v. Workers Comp. Appeals Bd. (2009) 173 Cal.App.4th 689, 695, fn. 6.) 3

4 future, but concluded, Clearly, in hindsight, at least to date, Mr. Barela s surgery, if one were to use this criteria, was both reasonable and necessary. He also mentioned that given the two levels of surgical fusion that Barela underwent, it was more likely than not there would be a loss of integrity, which in and of itself would warrant a Category IV WPI rating. In a February 15, 2008, follow-up report, Dr. Ansel concluded Barela should be rated at a 23-percent whole person impairment based on his loss of motion resulting from the surgery, level of pain, need for medication, and impairment of the activities of daily living. On August 12, 2008, nearly 15 months after surgery, Dr. Ansel conducted another medical examination of Barela and confirmed that as a result of the successful fusion surgery, he would rate Barela s disability as to his lumbar spine under DRE Category IV with a 23-percent whole person impairment. In the end, Dr. Ansel concluded Barela had obtained excellent results to date as a result of both surgeries [with] his medical care and treatment and temporary disability all being reasonable and appropriate. The matter proceeded to a workers compensation hearing in April Based on Barela s credible testimony that the surgery had provided continued relief and on Dr. Ansel s conclusion that Barela should be rated under DRE Category IV under the AMA Guides with a 23-percent whole person impairment, the WCJ awarded Barela a 34- percent permanent disability rating as calculated by the Division of Workers Compensation Disability Evaluation Unit. The award amounted to $34,980 paid in 159 weekly installments of $220, plus further medical treatment to cure or relieve from the effects of the low back injury. Leprino petitioned the WCAB for reconsideration, contending Barela s permanent disability rating should have been based on an 8-percent, rather than 23-percent, whole person impairment because the increase was based on unauthorized medical treatment and on Barela s subjective complaints of improvement. In a September 25, 2009, opinion 4

5 and order denying reconsideration, the WCAB found the authorization or payment of medical treatment irrelevant in assessing permanent disability otherwise supported by Dr. Ansel s findings, Barela s credible testimony, and the unrebutted application of the AMA Guides. DISCUSSION Leprino contends the WCAB s decision is not supported by substantial evidence and that it circumvents and undermines the medical treatment dispute provisions regarding utilization review ( 4610), second opinions for spinal surgery ( 4062, subd. (b)), and AME opinions ( ). We agree with the WCAB and find nothing in the language of these provisions evidencing a legislative intent to restrict the level of permanent disability awards to that resulting only from treatment obtained under the workers compensation system. The findings and conclusions of the appeals board on questions of fact are conclusive and final and are not subject to review. ( 5953.) In reviewing an order, decision, or award of the WCAB, an appellate court must determine whether, in view of the entire record, substantial evidence supports the WCAB s findings. ( 5952, subd. (d); Braewood Convalescent Hospital v. Workers Comp. Appeals Bd. (1983) 34 Cal.3d 159, 164.) Substantial evidence is evidence that is more than a mere scintilla, and means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion... (Braewood Convalescent Hospital, supra, at p. 164.) In reviewing workers compensation statutes, we give great weight to the WCAB s interpretation unless it contravenes legislative intent as evidenced by clear and unambiguous statutory language. (Signature Fruit Co. v. Workers Comp. Appeals Bd. (2006) 142 Cal.App.4th 790, 795.) We must also look to the overall statutory scheme and consider fairness, reasonableness, and proportionality of an enactment and the purposes sought to be achieved. (Ibid.) We nevertheless accord significant respect 5

6 to the WCAB s interpretation of workers compensation statutes unless clearly erroneous. (Brooks v. Workers Comp. Appeals Bd. (2008) 161 Cal.App.4th 1522, 1528.) The parties agree that Dr. Ansel rated Barela with a higher level of physical impairment as a result of the fusion surgery than Barela would have been entitled to without the surgery under the AMA Guides, notwithstanding Barela s testimony that the surgery improved his back and enabled him to return to work. Leprino thus argues it should not be liable for the increase in Barela s permanent disability given Barela s admission at trial that he was aware that the utilization review, Dr. Wrobel s second opinion, and AME Dr. Ansel all recommended against performing the surgery and provided Leprino with legal grounds to deny authorization for the procedure. Leprino contends instead that if the surgery indeed improved Barela s condition, then a logical conclusion would be that applicant s post-surgery impairment should be less than 8% [whole person impairment]. Leprino concedes the AMA Guides mandate this result, but argues they do not apply here because Barela should not be allowed to reap the benefits that he otherwise would not have received had he followed the established rules and not undergone surgery with Dr. Conner. Although Leprino offers policy arguments as grounds to override the application of the AMA Guides, it does not present a legal basis to suggest payment and authorization for a particular treatment is a prerequisite to permanent disability. As the WCAB found, Leprino appropriately exercised its authority to conduct a utilization review and obtain a second medical opinion, which both disagreed with Barela s treating physician. Specifically referring to spinal surgery recommendations, section 4062, subdivision (b) provides that a contrary second opinion shields an employer from liability for the treatment costs for the disputed procedure. And while that provision also shields an employer from liability from a self-procured spinal procedure for periods of 6

7 temporary disability resulting from the surgery, it does not place any limits on a resulting permanent disability award. Moreover, Leprino fails to cite to any statutory language or case law suggesting that a contrary utilization review, second medical opinion, or AME medical opinion affects the level of permanent disability an injured worker may receive. Nor does Leprino offer any basis to suggest an injured employee is somehow prevented from obtaining medical treatment not authorized by an employer. In focusing on the various recommendations against surgery, Leprino overlooks the recommendation of Barela s own primary treating physician, Dr. Conner, who recommended and successfully performed the surgery. Leprino also overlooks Dr. Ansel s admission, albeit after the surgery was performed, that the procedure was a success and was both reasonable and necessary. (See White v. Workmen s Comp. App. Bd. (1969) 270 Cal.App.2d 447, 451 [ employee has the benefit of hindsight in proving reasonableness of a successful self-procured surgery].) Leprino s underlying implication that Barela obtained the surgery against medical advice as a means to obtain a higher permanent disability award is unpersuasive, particularly given that Barela s regular health insurance coverage authorized the treatment and did not view it as either an unnecessary or dangerous course of treatment. We similarly are not persuaded that this court must act, based on Leprino s speculative fears, to prevent future injured workers from demanding rogue spine surgeries and sticking employers and insurance carriers with all the negative consequences, as the question presents a matter better presented to the Legislature. In the case before this court, the surgery in fact relieved Barela from the effects of his industrial injury. (See 4600, subd. (a).) Leprino s fundamental complaint is with the accuracy and applicability of the AMA Guides. Among the 2004 workers compensation reforms, however, the Legislature mandated their incorporation into the permanent disability rating schedule so 7

8 as to promote consistency, uniformity, and objectivity. ( 4660, subds. (b)(1), (d).) This rating schedule, effective January 1, 2005, constitutes prima facie evidence of the percentage of permanent disability to be attributed to each injury covered. ( 4660, subd. (c); Cal. Code Regs., tit. 8, 9805.) Other than the statutory relief from liability for payment of the surgery under the medical dispute procedures, Leprino offers no basis to disregard the application of the AMA Guides and resulting level of permanent disability. Leprino does not dispute the calculation of the award itself under the AMA Guides, as adopted by Dr. Ansel s AME medical reporting, and Barela, his treating physician, and Dr. Ansel all agreed the surgery was reasonable, necessary, and successful. Accordingly, the WCAB s permanent disability award was based on substantial evidence. DISPOSITION The petition for writ of review is denied. Respondent s request for attorney fees is denied. This opinion is final forthwith as to this court. 8