The opinion
Filed 9/25/18
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
DEPARTMENT OF CORRECTIONS AND C085850
REHABILITATION,
(Super. Ct. No. ADJ8815575)
Petitioner,
v.
WORKERS’ COMPENSATION APPEALS BOARD
and DEAN FITZPATRICK,
Respondents.
ORIGINAL PROCEEDING: Petition for writ of review. Petition granted. Noah
Tempkin, Judge.
Carla R. Anene, Mary R. Huckabaa, and Lisa A. Stolzy, for Petitioner.
1
Finnegan, Marks, Theofel & Desmond, Randall G. Poppy, for the California
Chamber of Commerce, as Amicus Curiae on behalf of Petitioner.
John F. Shields, for Respondent Workers Compensation Appeals Board.
Metzinger & Associates and Ronald M. Metzinger, for Respondent Dean
Fitzpatrick.
Law Office of Joseph Waxman and James Achermann, for the California
Applicants’ Attorneys Association, as Amicus Curiae on behalf of Respondent Dean
Fitzpatrick.
We granted the Department of Corrections and Rehabilitation’s (Department)
petition for a writ of review (Petition) of a Workers’ Compensation Appeals Board
(Board) opinion, which raises the following statutory construction question: Must a
finding of permanent total disability1 be made in accordance with Labor Code2
section 4660,3 or does section 4662, subdivision (b), provide a separate path to such a
finding? We conclude section 4660 governs how the finding and award of permanent
total disability shall be made “in accordance with the fact,” as provided in section 4662,
subdivision (b).
GENERAL BACKGROUND
“The right to workers’ compensation benefits is wholly statutory and is not
derived from common law.” (DuBois v. Workers’ Comp. Appeals Bd. (1993) 5 Cal.4th
382, 388.) To assist in a better understanding of the finding and award subject to this
appeal and the discussion that follows, we begin with the general background of the
1 Other than those permanent disabilities conclusively presumed to be total as
identified in Labor Code section 4662, subdivision (a).
2 All further section references are to the Labor Code unless otherwise specified.
3 Section 4660 applies “to injuries occurring before January 1, 2013.” The injury at
issue in this case occurred “during a cumulative period ending December 7, 2011.”
2
applicable statutory and regulatory framework underlying workers’ compensation
permanent disability awards.
I
The Permanent Disability System Generally
“Employers are responsible to workers who sustain permanent disabling injuries
that arise out of and in the course of their employment.” (Ogilvie v. Workers’ Comp.
Appeals Bd. (2011) 197 Cal.App.4th 1262, 1269.) “A permanent disability is the
irreversible residual of a work-related injury that causes impairment in earning capacity,
impairment in the normal use of a member or a handicap in the open labor market.” (Id.
at p. 1270.) “A disability is considered permanent when the employee has reached
maximal medical improvement, meaning his or her condition is well stabilized, and
unlikely to change substantially in the next year with or without medical treatment.”
(Cal. Code Regs., tit. 8, § 10152.)
There are two types of permanent disability: partial and total. Permanent total
disability is “a permanent disability with a rating of 100 percent permanent disability
only.” (§ 4452.5, subd. (a).) Permanent partial disability is “a permanent disability with
a rating of less than 100 percent permanent disability.” (§ 4452.5, subd. (b).)
“ ‘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.’ [Citation.] Since 1937, permanent disability awards have been
assessed using a schedule that ‘was always expressly intended to manifest “prima facie
evidence of the percentage of permanent disability to be attributed to each injury covered
by the schedule.” ’ ” (Ogilvie v. Workers’ Comp. Appeals Bd., supra, 197 Cal.App.4th at
p. 1270.) “In 2004, the Legislature enacted omnibus changes to California’s workers’
compensation system as ‘an urgency measure designed to alleviate a perceived crisis in
skyrocketing workers’ compensation costs.’ ” (Ibid.) The revised provisions, including
section 4660, “substantially affected the assessment of an injured worker’s permanent
3
disability.” (Milpitas Unified School Dist. v. Workers’ Comp. Appeals Bd. (2010) 187
Cal.App.4th 808, 818; Stats. 2004, ch. 34, § 32.)
II
The Pertinent Statutes And Administrative Rule
A
Section 4660
“Section 4660 prescribes the method for determining the percentages of permanent
disability for workers’ compensation purposes” for “injuries occurring before January 1,
2013.” (Chang v. Workers’ Comp. Appeals Bd. (2007) 153 Cal.App.4th 750, 753;
§ 4660.) “In determining the percentages of permanent disability, account shall be taken
of the nature of the physical injury or disfigurement, the occupation of the injured
employee, and his or her age at the time of the injury, consideration being given to an
employee’s diminished future earning capacity.” (§ 4660, subd. (a).) The “ ‘nature of
the physical injury or disfigurement’ ” requirement “shall incorporate 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)” (hereinafter Guides) and “an
employee’s diminished future earning capacity shall be a numeric formula based on
empirical data and findings from [a 2003 report] prepared by the RAND Institute for
Civil Justice, and upon data from additional empirical studies” (§ 4660, subd. (b)(1) &
(2)).
Although “[a] schedule for assessing permanent disability had been required since
1937 . . . no guidance was provided for the formulation of the schedule until the 2004
amendment.” (Milpitas Unified School Dist. v. Workers’ Comp. Appeals Bd., supra, 187
Cal.App.4th at p. 818.) In section 4660, subdivision (c), the Legislature directed the
administrative director “to develop and regularly amend the rating schedule based on
specified data from empirical studies.” (Milpitas, at p. 818.) “The schedule is to
4
‘promote consistency, uniformity, and objectivity’ [citation], and the scheduled rating
continues to be ‘prima facie evidence of the percentage of permanent disability to be
attributed to each injury covered by the schedule.’ ” (Ogilvie v. Workers’ Comp. Appeals
Bd., supra, 197 Cal.App.4th at p. 1271; § 4660, subds. (c) & (d).)
B
Administrative Rule
In accordance with the Legislature’s directive in section 4660, subdivision (c), the
administrative director adopted and published a revised schedule for rating permanent
disabilities effective January 1, 2005 (2005 Schedule), “which incorporated the fifth
edition of the Guides in its entirety.” (Milpitas Unified School Dist. v. Workers’ Comp.
Appeals Bd., supra, 187 Cal.App.4th at p. 818; Cal. Code Regs., tit. 8, § 9805; 2005
Schedule, p. 1-2.)
The 2005 Schedule states: “A permanent disability rating can range from 0% to
100%. Zero percent signifies no reduction of earning capacity, while 100% represents
permanent total disability. A rating between 0% and 100% represents permanent partial
disability. Permanent total disability represents a level of disability at which an employee
has sustained a total loss of earning capacity. Some impairments are conclusively
presumed to be totally disabling. (Lab. Code, § 4662.)” (2005 Schedule, pp. 1-2-1-3.)
The process for calculating the permanent disability rating consists of multiple steps.
Generally, the evaluating physician first prepares an impairment rating for each
body part arising out of the injury in accordance with the Guides. (2005 Schedule, p. 1-
2.) “Initial impairment ratings are consolidated by body part . . . and converted to a
whole person impairment rating.” (Ibid.) A psychiatric impairment is evaluated by a
physician using the global assessment of function (GAF) scale and the resultant score is
then converted to a whole person impairment rating using the conversion table in the
5
2005 Schedule. (2005 Schedule, p. 1-12.) The whole person impairment rating is
expressed as a percentage (Almaraz v. Environmental Recovery Services/Guzman v.
Milpitas Unified School Dist. (2009) 74 Cal.Comp.Cases 1084, 1092) and “then adjusted
to account for diminished future earning capacity, occupation and age at the time of
injury to obtain a final permanent disability rating” (2005 Schedule, p. 1-2).
As applicable here, “[a] single injury can result in multiple impairments of several
parts of the body. . . . Multiple impairments must be combined in a prescribed manner to
produce a final overall rating.”4 (2005 Schedule, p. 1-5.) “When combining two or more
ratings to create a composite rating, the ratings must be expressed in the same scale” and
the numbers “are generally combined using the following formula where ‘a’ and ‘b’ are
the decimal equivalents of the impairment or disability percentages: [¶] a+b(1-a)”
(Formula). (2005 Schedule, pp. 1-3, 1-10.) Except for specified impairments (not
applicable here), “all impairments are converted to the whole person scale, adjusted, and
then combined to determine the final overall disability rating.” (2005 Schedule, p. 1-11.)
Section 8 of the 2005 Schedule contains the combined values chart (Chart), and
states: “Use this chart to combine two or more impairments, or two or more disabilities.”
(2005 Schedule, p. 8-1.) The combined values in the Chart range from 2% to 100%.
(2005 Schedule, pp. 8-2-8-4.) The Guides describe the Chart as “[a] method used to
combine multiple impairments, derived from the formula A+B(1-A) = combined values
of A and B, which ensures that the summary value will not exceed 100% of the whole
person.” (Guides, p. 600.)
4 We note that, where separate injuries are involved, separate awards are required
for each injury. (Benson v. Workers’ Comp. Appeals Bd. (2009) 170 Cal.App.4th 1535.)
Nothing in the record or the briefs indicates separate injuries are at issue here.
6
“In many cases, . . . the revision to the schedule for rating permanent disabilities
[in the 2005 Schedule] reduces the amount a worker will be compensated for a permanent
disability,” as compared to the prior schedule. (Genlyte Group, LLC v. Workers’ Comp.
Appeals Bd. (2008) 158 Cal.App.4th 705, 715-716, fn. omitted; see, e.g., Vera v.
Workers’ Comp. Appeals Bd. (2007) 154 Cal.App.4th 996, 1000 [new schedule resulted
in permanent disability rating of 26 percent; former schedule resulted in rating of 59
percent].) The scheduled rating is not absolute however. The scheduled rating (or
component parts of the rating) may be rebutted based on the specific circumstances of a
case. (See Ogilvie v. Workers’ Comp. Appeals Bd., supra, 197 Cal.App.4th at pp. 1263-
1276; Contra Costa County v. Workers’ Comp. Appeals Bd. (2015) 240 Cal.App.4th 746,
755-761; Milpitas Unified School Dist. v. Workers’ Comp. Appeals Bd., supra, 187
Cal.App.4th at pp. 827-829.)
C
Section 4662
Section 4662, subdivision (a), identifies four instances of “permanent disabilities
[that] shall be conclusively presumed to be total in character.” None of those instances is
at issue here. Section 4662, subdivision (b), provides that “[i]n all other cases, permanent
total disability shall be determined in accordance with the fact.” For our purposes,
section 4662 has remained substantively unchanged since its adoption in 1913.5
FACTUAL AND PROCEDURAL BACKGROUND
A workers’ compensation administrative law judge found Dean Fitzpatrick “100
percent permanently totally disabled” as a result of injury to his heart and psyche
5 The statute has been amended twice since its enactment. In 2007 and 2014, it was
amended regarding injuries resulting in mental incapacity, and the 2014 amendment
further renumbered the statute into subdivisions (a) and (b). (Stats. 2007, ch. 31, § 2;
Stats. 2014, ch. 144, § 46.)
7
sustained during the course of his employment as a correctional officer. In his written
findings, award and order, and accompanying opinion on decision (Decision), the
administrative law judge relied on the reports of two doctors regarding Fitzpatrick’s
injury -- Peter Chang-Sing for his heart and Richard Lieberman for his psyche.
Chang-Sing rated Fitzpatrick’s whole person impairment for his heart at 75
percent and his resulting permanent disability at 97 percent. Lieberman rated
Fitzpatrick’s GAF score at 45, resulting in 40 percent whole person impairment, and
permanent disability of 71 percent for his psyche. It is undisputed that, combining the 97
percent and 71 percent ratings under the Chart and in accordance with the Formula,
Fitzpatrick’s permanent disability scheduled rating is 99 percent -- permanent partial
disability.
In his Decision, the administrative law judge quoted substantial portions from
Lieberman’s reports, in which Lieberman detailed his dissatisfaction with Fitzpatrick’s
medications and treatment. In the section entitled “PERMANENT DISABILITY,” the
administrative law judge wrote: “In the July 16, 2015 report, Dr. Lieberman felt that
applicant was ‘ …on strict psychiatric grounds totally and permanently disabled’ . . . Dr.
Lieberman elaborated further: [¶] ‘I am dubious that this patient will return to work in
any capacity. From a strict psychiatric standpoint, there is that possibility remotely that if
he undergoes a cardiac transplant, and if this is successful, that his anxiety will
significantly abate, which could allow him to return to work in some capacity, but
assuming that he does not have this, and if his cardiac condition does not improve, he will
not return to work.’ ”
The administrative law judge concluded: “Based upon [Fitzpatrick’s] credible
testimony, the medical reports of Dr. Chang-Sing and Dr. Lieberman, and in accordance
with the facts (see Labor Code §4662(b)), it is found that applicant is permanently totally
disabled.” The administrative law judge did not mention or discuss the combined rating
under the 2005 Schedule.
8
The Department appealed the Decision to the Board through a petition for
reconsideration. The Board summarized the grounds for the Department’s petition as
follows: “[The Department] contests the finding that [Fitzpatrick] is totally permanently
disabled, arguing that the opinion of [Lieberman] is not substantial medical evidence to
support the award, nor is it adequate to rebut the scheduled rating of 99% permanent
disability, as [Lieberman] fails to address the issue of [Fitzpatrick’s] vocational
feasibility. [The Department] further argues that the vocational expert evidence does not
support the [judge’s] determination, even though the [judge] did not rely upon this
evidence. Finally, [the Department] argues that [Lieberman’s] opinion does not provide a
basis for finding [Fitzpatrick] totally permanently disabled ‘in accordance with the fact,’
under Labor Code section 4662(b), where the scheduled rating of [Fitzpatrick’s]
psychiatric disability alone does not come close to total permanent disability, and a rating
combining his cardiac disability only rates at 99%.”
The administrative law judge prepared a report and recommendation on petition
for reconsideration (Report) for the Board’s review. The Board affirmed the Decision in
its opinion and order denying the petition for reconsideration (Opinion), and adopted and
incorporated the Report “as the decision of the Board.”
In the Report, the administrative law judge wrote: “With regard to the argument
that [Fitzpatrick] didn’t rebut the rating schedule, total permanent disability may be
shown by presenting evidence showing total permanent disability ‘in accordance with the
fact’ as provided in Labor Code section 4662, subdivision (b), or by rebutting a Labor
Code section 4660 scheduled rating [citations]. The Appeals Board specifically
discussed the different paths provided by these two Labor Code sections in [Coca-Cola
Enterprises, Inc. v. Workers’ Comp. Appeals Bd. (Jaramillo) (2012) 77 Cal.Comp.Cases
445 [writ. den.] (Jaramillo)]. In the present case, the undersigned relied upon Labor
Code section 4662, subdivision (b), [Fitzpatrick’s] credible testimony, and the opinions
of [Lieberman and Chang-Sing]. Specifically, the undersigned relied upon Dr.
9
Lieberman’s opinion that applicant was permanently and totally disabled psychiatrically .
. . . [¶] . . . [The Department] has not presented evidence that would compromise Dr.
Lieberman’s opinion that [Fitzpatrick] was permanently and totally disabled. Dr.
Lieberman clearly felt that [Fitzpatrick] was 100% disabled psychiatrically and was
dubious that applicant could return to work in any capacity . . . .”
The Department subsequently petitioned for a writ of review of the Opinion,
which we granted.
DISCUSSION6
The Department and amicus curiae the California Chamber of Commerce argue
the Board exceeded its jurisdiction by relying on section 4662, subdivision (b), to find
permanent total disability because it should have proceeded pursuant to section 4660,
which resulted in an unrebutted scheduled permanent disability rating of 99 percent.
Fitzpatrick and amicus curiae the California Applicants’ Attorneys Association argue the
Board’s Opinion should be affirmed because section 4662 applies to permanent total
disability and section 4660 applies to permanent partial disability, and the Board’s
permanent total disability finding under section 4662, subdivision (b), “in accordance
with the fact” was appropriate and is supported by substantial medical evidence.
In its opposition to the Petition, the Board acknowledges that Board panels have
“provided varying analyses on how the [2004 amendments] should be construed,” but
does not defend the position taken in its Opinion. Instead, the Board raises a new theory
on appeal -- that the finding of permanent total disability was made “within the
parameters of section 4660, the Guides and the [2005 Schedule]” because the
6 The Department’s request for judicial notice of legislative history documents and
the 2005 Schedule is granted.
10
administrative law judge appropriately added the two disability ratings together rather
than using the combined rating under the Chart.7
I
Standard Of Review
Our review is limited to determining whether the Board acted “without or in
excess of its powers” and whether its decision was unreasonable, not supported by
substantial evidence, or procured by fraud. (§ 5952, subds. (a)-(d).) However, “[t]he
findings and conclusions of the appeals board on questions of fact are conclusive and
final and are not subject to review. Such questions of fact shall include ultimate facts and
the findings and conclusions of the appeals board.” (§ 5953.)
Unless clearly erroneous, the Board’s interpretation of workers’ compensation
laws is entitled to great weight. (Genlyte Group, LLC v. Workers’ Comp. Appeals Bd.,
supra, 158 Cal.App.4th at p. 714.) “Nevertheless, issues of statutory interpretation and
questions of law are subject to our independent review, and we need not defer to the
[Board’s] legal determinations where they are contrary to the plain meaning of the statute
or prevailing case law.” (Contra Costa County v. Workers’ Comp. Appeals Bd., supra,
240 Cal.App.4th at p. 756.) When the statutory language is clear and unambiguous, there
is no room for the Board’s interpretation. (DuBois v. Workers’ Comp. Appeals Bd.,
supra, 5 Cal.4th at pp. 387-388.)
7 At oral argument, the Board’s counsel stated it was not arguing a new theory on
appeal because “it’s the same facts, the same evidence, the same law that’s being argued
here.” We disagree. Neither the administrative law judge nor the Board discussed or
explained why or how it could add disability ratings together to arrive at the final
disability rating in this case, and they did not do so to reach the finding of permanent total
disability. Therefore, the Department was not given an opportunity to object to or argue
against such an application. This clearly shows the Board did, in fact, raise a new theory
on appeal.
11
The Board argues our review is limited by section 5953 because “in this case the
[Board’s] finding of permanent total disability is in accordance with the fact and should
be affirmed because it is [sic] was made within the statutory process and is supported by
substantial evidence in light of the entire record.” We disagree. The question presented
on appeal is whether the Board correctly interpreted and applied sections 4660 and 4662,
subdivision (b). This is an issue of statutory construction, subject to our independent
review. Only if the Board correctly interpreted and applied the statutes do we review the
Board’s Opinion for substantial evidence.
II
Permanent Total Disability Determinations Under
Section 4662, Subdivision (B), Are Subject To Section 4660
We consider questions of statutory interpretation in accordance with well-
established principles of statutory construction. “Our primary task is to ascertain the
Legislature’s intent so as to effectuate the purpose of the law. [Citation.] Toward this
end we must accord a reasonable and commonsense interpretation consistent with the
Legislature’s purpose.” (Donald v. Cafe Royale, Inc. (1990) 218 Cal.App.3d 168, 176-
177.) “[W]e turn to the words in the statute and give effect to the statute according to the
usual, ordinary import of the language used in framing it.” (Klee v. Workers’ Comp.
Appeals Bd. (1989) 211 Cal.App.3d 1519, 1523.) We do not, however, look at those
words in isolation. “ ‘The meaning of a statute may not be determined from a single
word or sentence; the words must be construed in context, and provisions relating to the
same subject matter must be harmonized to the extent possible.’ ” (People v. Shabazz
(2006) 38 Cal.4th 55, 67.) “When the language is clear and there is no uncertainty as to
the legislative intent, we look no further and simply enforce the statute according to its
terms.” (DuBois v. Workers’ Comp. Appeals Bd., supra, 5 Cal.4th at pp. 387-388.)
12
We easily harmonize sections 4660 and 4662, subdivision (b).8 Section 4662,
subdivision (b), provides that, in nonconclusively presumed permanent total disability
cases (i.e., those cases not enumerated in section 4662, subdivision (a)), permanent total
disability may be found “in accordance with the fact.” This section does not, however,
address how such a determination shall be made; read plainly, it merely provides that a
determination of permanent total disability shall be made on the facts of the case.
Section 4660 addresses how the determination on the facts shall be made in each
case for injuries occurring before January 1, 2013.9 Indeed, section 4660 expressly
8 Amicus curiae the California Applicants’ Attorneys Association points us to
section 4660.1, subdivision (g), which provides: “Nothing in this section shall preclude a
finding of permanent total disability in accordance with Section 4662.” Section 4660.1
was added to the statutory scheme in 2012, with an effective date of January 1, 2013,
addressing the determination of “the percentages of permanent partial or permanent total
disability” for “injuries occurring on or after January 1, 2013.” (§ 4660.1 & subd. (a);
Stats. 2012, ch. 363, § 60.) As we can best surmise, it appears the California Applicants’
Attorneys Association believes this subdivision supports its interpretation that the
Legislature intended for section 4662 (both subdivisions (a) and (b)) to be construed
independent and separate from section 4660. There are two problems with this argument.
First, the language in section 4660.1, subdivision (g), does not appear in section 4660.
We note that section 4660 was amended in 2012 when section 4660.1 was added (see
Stats. 2012, ch. 363, § 59), but the Legislature did not add the language in section 4660.1,
subdivision (g), to section 4660. We decline to read words into a statute that do not exist
in its text. (Code Civ. Proc., § 1858.) Second, Fitzpatrick’s injury occurred “during a
cumulative period ending December 7, 2011,” rendering section 4660.1 inapplicable
because the injury did not occur on or after January 1, 2013. Accordingly, we do not
address or interpret any provision of section 4660.1.
9 Although we did not expressly address this issue, we noted this relationship
between sections 4660 and 4662, subdivision (b), in Vincent v. Industrial Acc. Com.
(1955) 136 Cal.App.2d 679, in which we explained: “[T]he determination referred to in
subsection (a) of Labor Code, section 4660, will of necessity be arbitrary to a degree, and
no one can determine with nicety exactly how much an injured employee should receive
for the permanent loss, or loss of use, of a particular member of his body. This is
illustrated by the provisions of section 4662 which provide that except as to certain
enumerated cases, the determination and extent of permanent disability shall be made by
the commission ‘in accordance with the fact.’ [¶] To assist the commission in this
13
applies to the determination of “the percentages of permanent disability” and permanent
total disability is defined by statute as a percentage of permanent disability, i.e., 100
percent. (§§ 4660, subds. (a), (d), 4452.5, subd. (a).) This definition of permanent total
disability applies to the division in which section 4660 appears and was added in 1973
(predating the 2004 amendment to section 4660). (§ 4452.5; Stats. 1973, ch. 1023 § 1.)
We presume the Legislature, when amending section 4660, was aware of existing related
laws and intended to maintain a consistent body of statutes on the same subject matter.
(People v. Vessell (1995) 36 Cal.App.4th 285, 289.)
The 2005 Schedule (a formal administrative rule), implementing the requirements
in section 4660, also identifies permanent total disability as a percentage of disability:
“A permanent disability rating can range from 0% to 100%. Zero percent signifies no
reduction of earning capacity, while 100% represents permanent total disability. A rating
between 0% and 100% represents permanent partial disability.” (2005 Schedule, p. 1-2.)
A “final permanent disability rating” is obtained by going through the steps outlined in
the 2005 Schedule. (2005 Schedule, pp. 1-2-1-16.)
Importantly, an employee can obtain a disability rating of 100 percent under
section 4660.10 “[T]he final overall permanent disability rating percentage for a single
regard, and to maintain as much uniformity as possible, the Legislature has authorized it
to adopt a schedule for the determination of percentages of permanent disability.
[Citation.] It is therein provided that, ‘The commission may prepare, adopt and from
time to time amend . . .’ such a schedule and that it shall be ‘prima facie evidence’ of the
percentage of disability to be attributed to each injury covered by the schedule.”
(Vincent, at p. 681.) While the statutes have been amended since 1955, their
interrelationship has not changed.
10 We posed the question, whether an applicant can obtain a 100 percent permanent
disability rating under section 4660, to the parties during oral argument. While counsel
for the Board and the California Applicants’ Attorneys Association conceded that an
applicant can obtain a permanent total disability rating under section 4660 (although it
would be difficult to do so), Fitzpatrick’s counsel argued section 4660 “does not get to
14
impairment” is shown “on the age adjustment table,” which contains a 100 percent
disability rating. (2005 Schedule, pp. 1-9, 6-5.) For combined impairments or
disabilities, the Chart also contains over 50 combined ratings of 100 percent. (2005
Schedule, pp. 8-1, 8-3-8-4.) We further note the scheduled rating under section 4660 is
rebuttable, which gives an applicant the opportunity to present evidence supporting a 100
percent disability rating when the scheduled rating is less.
In Ogilvie, the court addressed “ ‘whether, in light of the amendments to
section 4660 enacted in Senate Bill No. 899 (2003-2004 Reg. Sess.), it is permissible to
depart from a scheduled rating on the basis of vocational expert opinion that an employee
has a greater loss of future earning capacity than reflected in a scheduled rating.’
[Citation.] Giving consideration to the purpose behind and the language of the
amendments, the Ogilvie court answered this question with a qualified ‘yes.’ It held that
there are three permissible methods by which the scheduled rating could be rebutted.”
(Contra Costa County v. Workers’ Comp. Appeals Bd., supra, 240 Cal.App.4th at p. 751.)
“First, the court concluded that the Legislature left unchanged the case law
allowing ‘the schedule to be rebutted when a party can show a factual error in the
application of a formula or the preparation of the schedule.’ [Citation.] Second, the
Legislature also left intact the cases, including [LeBoeuf v. Workers’ Comp. Appeals Bd.
(1983) 34 Cal.3d 234], recognizing ‘that a scheduled rating has been effectively rebutted
. . . when the injury to the employee impairs his or her rehabilitation, and for that reason,
the employee’s diminished future earning capacity is greater than reflected in the
employee’s scheduled rating.’ [Citation.] The court interpreted LeBoeuf and its progeny
as limited in application ‘to cases where the employee’s diminished future earnings are
directly attributable to the employee’s work-related injury, and not due to nonindustrial
total permanent disability” and “by definition and review of the section shows that it only
goes to 99 percent.” As we explain, Fitzpatrick’s counsel is mistaken.
15
factors.’ [Citation.] Third and finally, the court held ‘[a] scheduled rating may be
rebutted when a claimant can demonstrate that the nature or severity of the claimant’s
injury is not captured within the sampling of disabled workers that was used to compute
the adjustment factor.’ ” (Contra Costa County v. Workers’ Comp. Appeals Bd., supra,
240 Cal.App.4th at p. 751.)
Accordingly, by proceeding under section 4660, Fitzpatrick would have had the
opportunity to rebut the 99 percent scheduled disability rating to show the appropriate
rating is permanent total disability.11 That it is difficult or onerous to obtain a 100
percent rating under section 4660 or through rebuttal of the scheduled rating does not
affect our analysis. Such policy considerations are left to the Legislature; we interpret
and apply the law as provided in the statutes.
Our interpretation of sections 4660 and 4662, subdivision (b), is squarely at odds
with the Board panel’s interpretation of those statutes in Jaramillo (on which the
administrative law judge and the Board relied in this case), in which the panel stated “in
contrast to Labor Code § 4662, which applies to [permanent total disability], Labor Code
§ 4660 addresses partial disability, i.e. ‘the percentages of permanent disability.’ ”12
(Jaramillo, supra, 77 Cal.Comp.Cases at p. 447.) We thus disapprove of Jaramillo with
respect to its analysis on this issue, and annul the Board’s Opinion for the same reason.13
11 We note that, although not relied upon by the administrative law judge or the
Board, a vocational evaluator did submit a report in this case.
12 While courts permit citation of California Compensation Cases and occasionally
cite them in published opinions, such writ-denied summaries of decisions by the Board
have no stare decisis effect and we are not bound by them. (Parker v. Workers’ Comp.
Appeals Bd. (1992) 9 Cal.App.4th 1636, 1646; Wings West Airlines v. Workers’ Comp.
Appeals Bd. (1986) 187 Cal.App.3d 1047, 1053, fn. 4.)
13 We asked Fitzpatrick’s counsel during oral argument to what extent the outcome
of this case depended on us accepting the interpretation of sections 4660 and 4662 in
Jaramillo. Although the administrative law judge and the Board relied on the statutory
16
To limit section 4660’s application to permanent partial disability only, as proposed in
Jaramillo and the Board’s Opinion, we would have to add or read the word “partial” or
other words excluding permanent total disability into the statute. We decline to do so.
(Code Civ. Proc., § 1858 [we do not insert what has been omitted or omit what has been
inserted into a statute].) If the Legislature intended to exclude permanent total disability
ratings from the requirements of section 4660, it would have said so. (Cf. Repass v.
Workers’ Comp. Div. (W.Va. 2002) 212 W.Va. 86, 95 [West Virginia statute states “the
degree of permanent disability other than permanent total disability shall be determined
exclusively by the degree of whole body medical impairment that a claimant has
suffered” per the Guides], italics added.)
The Jaramillo panel’s reliance on sections 4658, subdivision (d), and 4659,
subdivision (b), is also unavailing. (Jaramillo, supra, 77 Cal.Comp.Cases at p. 447.)
Section 4658, subdivision (d), provides disability payment computations for injuries
depending on “the percentage of disability to total disability” up to 99.75 percent, while
section 4659, subdivision (b), provides that “[i]f the permanent disability is total, the
indemnity . . . shall be paid during the remainder of life.” The Jaramillo panel stated
these “separate sections for computing disability payments in cases involving partial and
total disability confirms that there is a meaningful difference between disabilities that are
interpretation in Jaramillo, and Fitzpatrick argued in favor of Jaramillo’s reasoning in his
briefing, Fitzpatrick’s counsel responded that Jaramillo was inapplicable to the outcome
of this case because the permanent total disability finding was based on the medical
information introduced. The Board’s counsel also attempted to distinguish Jaramillo,
stating: “In this case there was never a stipulation as to a rating of the disability. This is
unlike the Jaramillo or Anaya cases or other cases [unintelligible] Ogilvie. There the
parties stipulated to what the scheduled rating would be. That . . . there was no such
stipulation here.” Nothing in Jaramillo indicates the parties stipulated to the rating of
disability. Nor do we understand how the Board seeks to distinguish Jaramillo on such
grounds when the administrative law judge and the Board in this case relied on Jaramillo
for its discussion of “the different paths” provided by sections 4660 and 4662, i.e., the
statutory interpretation set forth in Jaramillo with which we disagree.
17
a percentage of total disability and those that are total.” (Jaramillo, at p. 447.) These
statutes, however, only provide different methods for calculating disability payments
based on the final permanent disability rating; they do not inform the process for reaching
the final permanent disability rating finding. (See Ogilvie v. Workers’ Comp. Appeals
Bd., supra, 197 Cal.App.4th at p. 1270 [“ ‘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’ ”], italics added.)
We further see no basis for concluding section 4662, subdivision (b), provides a
second independent path to permanent total disability findings separate from section
4660. Section 4660 is mandatory. There is nothing ambiguous or unclear in section
4660’s directive that “[i]n determining the percentages of permanent disability, account
shall be taken of the nature of the physical injury or disfigurement, the occupation of the
injured employee, and his or her age at the time of the injury, consideration being given
to an employee’s diminished future earning capacity” and the 2005 Schedule “shall be
prima facie evidence of the percentage of permanent disability to be attributed to each
injury covered by the schedule.” (§§ 4660, subds. (a), (c), italics added, 15 [“ ‘[s]hall’ is
mandatory and ‘may’ is permissive”].)
Moreover, our interpretation harmonizes provisions relating to the same subject
matter and gives effect to the Legislature’s intent to promote “consistency, uniformity,
and objectivity in the overall process of determining disability across individuals.”
(Milpitas Unified School Dist. v. Workers’ Comp. Appeals Bd., supra, 187 Cal.App.4th at
p. 823.) Our interpretation “remain[s] loyal to the Legislature’s design to provide a
system that is objective and uniform in application.” (Ogilvie v. Workers’ Comp. Appeals
Bd., supra, 197 Cal.App.4th at p. 1273; see Day v. City of Fontana (2011) 25 Cal.4th
268, 272 [statute should be interpreted with the aim of “ ‘ “promoting rather than
defeating” ’ ” its purpose].) The Board’s interpretation and approach would “return us to
the ad hoc decisionmaking that prevailed prior to 2004” with regard to permanent
18
disability findings, which is exactly what the Legislature sought to avoid in enacting the
amendments. (Contra Costa County v. Workers’ Comp. Appeals Bd., supra, 240
Cal.App.4th at p. 761.) It would allow an administrative law judge to make a subjective
determination that may lead to inconsistent and nonuniform permanent disability ratings
with respect to the most expensive claims under our workers’ compensation framework.
Such a result cannot be squared with the Legislature’s intent.
While we acknowledge section 3202 requires us to liberally construe the workers’
compensation law in favor of the injured worker, it “ ‘cannot supplant the intent of the
Legislature as expressed in a particular statute.’ [Citation.] If the Legislature’s intent
appears from the language and context of the relevant statutory provisions, then we must
effectuate that intent . . . .” (Kopping v. Workers’ Comp. Appeals Bd. (2006) 142
Cal.App.4th 1099, 1106.) We do so here.
III
We Do Not Consider The Board’s New Theory On Appeal
The Board argues “[n]either the Guides nor the [2005 Schedule] require use of the
[Chart] to combine multiple disability values” and “the Guides and [2005 Schedule]
recognize that multiple permanent disability percentages should be combined in the way
that results in a more accurate rating, and the conclusions of the examining physician are
key to reaching an accurate result.” The Department argues this new theory should be
rejected on appeal because neither the administrative law judge nor the Board raised or
considered this theory in finding and awarding permanent total disability, and, even if we
did consider the argument, there is insufficient evidence in the record to support the
Opinion on such grounds.
Principles of fairness generally militate against allowing a litigant to change his or
her position on appeal. (Brown v. Boren (1999) 74 Cal.App.4th 1303, 1316; accord, e.g.,
City of Merced v. American Motorists Ins. Co. (2005) 126 Cal.App.4th 1316, 1327.)
There are exceptions to this rule, including where a new theory pertains only to questions
19
of law based on undisputed facts. (Sheller v. Superior Court (2008) 158 Cal.App.4th
1697, 1709.) “[A]ppellate courts are most likely to consider an issue involving
undisputed facts for the first time on appeal where the issue involves important questions
of public policy or public concern.” (Duran v. Obesity Research Institute, LLC (2016) 1
Cal.App.5th 635, 646.) But even then, whether we will entertain a new theory raised for
the first time on appeal is strictly a matter of discretion. (See Hussey-Head v. World
Savings & Loan Assn. (2003) 111 Cal.App.4th 773, 783, fn. 7.)
We decline to address the Board’s contention because, even if we were to agree
with the Board regarding its interpretation of the 2005 Schedule (which we do not
decide), it would not change the outcome of this case. The permanent total disability
finding and award must be supported by substantial evidence. (§ 5952, subd. (d); Place
v. Workers’ Comp. Appeals Bd. (1970) 3 Cal.3d 372, 377-378.) While the Board argues
that the conclusions of the examining physician may support use of the additive method
to combine multiple disability values, the Board points to no evidence that addition of the
disability values would result in a “more accurate rating” than the combined value under
the Chart in this case, as it contends. Accordingly, even if the Board’s theory proved
plausible, there would be insufficient evidence to affirm the finding and award on that
theory.14
14 Although we do not consider the Board’s new theory, we would be remiss in
failing to comment on the fact that the Board attempted to support its position by relying
on the Schedule for Rating Permanent Disabilities dated April 1997 (1997 Schedule),
relying on language not existent in the 2005 Schedule, and cases predating the 2004
legislative amendments and the 2005 Schedule for the proposition that “[j]udicial
decisions agreed that combining factors of disability by addition was appropriate if it
provided a more valid measure, and it was expected that the [Board] would take into
account the conclusions of the examining physician and would exercise sound discretion
in rating permanent disability.” The 2005 Schedule differs substantially from the 1997
Schedule, and appropriately so given the 2004 amendments and the Legislature’s
directive.
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DISPOSITION
The Board’s Opinion after reconsideration is annulled and the matter is remanded
to the Board for further proceedings consistent with our opinion. Each party to bear its
own costs. (Cal. Rules of Court, rule 8.493(a)(1)(B).)
/s/
Robie, J.
We concur:
/s/
Hull, Acting P. J.
/s/
Mauro, J.
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