Dep't of Corr. & Rehab. v. Workers' Comp. Appeals Bd.
Dep't of Corr. & Rehab. v. Workers' Comp. Appeals Bd.
Opinion of the Court
*226*610We 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 disability
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)
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)
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 *227only." (§ 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,
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)
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,
B
Administrative Rule
In accordance with the Legislature's directive in section 4660, subdivision (c), the *228administrative 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,
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.
*613Generally, 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 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)
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."
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 *229100% of the whole person." (Guides, p. 600.)
"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)
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.
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 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 *615with 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 *230strict 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.
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 *616rating [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)
DISCUSSION
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 administrative law judge appropriately added the two disability ratings together rather than using the combined rating under the Chart.
*617I
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,
The Board argues our review is limited by section 5953 because "in this *232case 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 *618ascertain 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)
We easily harmonize sections 4660 and 4662, subdivision (b).
Section 4660 addresses how the determination on the facts shall be made in each case for injuries occurring before January 1, 2013.
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.
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)
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.
Our interpretation of sections 4660 and 4662, subdivision (b), is squarely at odds with the Board panel's interpretation of those statutes in Jaramillo *621(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.' "
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 *622a 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,
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 *236future 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,
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.'
*623[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)
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)
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)
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).)
We concur:
Hull, Acting P. J.
Mauro, J.
Other than those permanent disabilities conclusively presumed to be total as identified in Labor Code section 4662, subdivision (a).
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."
We note that, where separate injuries are involved, separate awards are required for each injury. (Benson v. Workers' Comp. Appeals Bd. (2009)
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.)
The Department's request for judicial notice of legislative history documents and the 2005 Schedule is granted.
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.
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.
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)
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 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.
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.
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)
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 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.
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.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.