RICHARD GENE LeBOEUF, Petitioner, v. WORKERS’ COMPENSATION APPEALS BOARD and ALAMEDA-CONTRA COSTA TRANSIT DISTRICT, Respondents.
S.F. No. 24479
Supreme Court of California
Aug. 8, 1983.
234 Cal.Rptr. 769 | 34 Cal.3d 234
Neyhart, Anderson, Nussbaum, Reilly & Freitas and Frank J. Reilly for Petitioner.
Richard J. Cantrell as Amicus Curiae on behalf of Petitioner.
Sedgwick, Detert, Moran & Arnold and C. Gordon Taylor for Respondents.
Samuel E. Meredith, Goshkin, Pollatsek, Meredith & Lee, Leonard J. Silberman and Zonni, Ginocchio & Taylor as Amici Curiae on behalf of Respondents.
BIRD, C. J.—Where an injured worker is found to be less than totally disabled and the Bureau of Rehabilitation (Bureau) subsequently finds the worker not qualified for rehabilitation benefits, does that finding constitute “good cause” to reopen the permanent disability proceeding?
I.
The facts are undisputed. Petitioner, Richard LeBoeuf, was employed as a bus driver for Alameda-Contra Costa Transit District (A.C. Transit) in 1961. On January 17, 1976, while he was on the job, he was attacked and beaten by four youths. Petitioner not only sustained multiple contusions and abrasions on his face, head and knee, but also developed an anxiety neurosis. The symptoms of this condition are claustrophobia, mental confusion and phobic reactions. As a result, petitioner was unable to return to work and on January 24, 1976, he filed a claim for workers’ compensation benefits, including permanent disability benefits. (See
The first hearing on petitioner‘s claim, which was limited to the nature and extent of his disability, was held on March 15, 1977. Petitioner and two psychiatrists, Dr. Beaulieu and Dr. Gruberg, each offered testimony concerning various aspects of petitioner‘s condition and his future employability.
The testimony on petitioner‘s employability was conflicting. Dr. Beaulieu testified that petitioner was not employable in any capacity because of his inability to cope with pressure, supervision, confinement and schedules. Dr. Gruberg, however, testified that petitioner was not “immobilized from the standpoint of gainful employment” and that he could possibly be employed as a “mailman” or “vaultman for A.C. Transit” or as a bus driver in a “small mountain town.”
After the hearing, the workers’ compensation judge submitted a request for a recommendation regarding petitioner‘s permanent disability rating to a workers’ compensation rating specialist. The request included “instructions” regarding petitioner‘s condition which reflected the testimony offered at the first hearing. The “instructions” read as follows: “Anxiety neurosis, manifested by inability to work as a motor coach operator, to be under close and frequent supervision, to work in a confined setting, or to be under a sense of obligation to do a particular thing in a particular way on a particular schedule.” On the basis of these instructions, petitioner‘s age and prior
Both petitioner and A.C. Transit objected to this recommended rating. Accordingly, a second hearing was held on March 30, 1978, to allow the parties to cross-examine the rating specialist and to offer rebuttal testimony. Petitioner offered in rebuttal the testimony of Dr. Dansker, a rehabilitation counselor. Dr. Dansker testified that in his opinion, few, if any, jobs would be open to petitioner given his condition. Petitioner also offered into evidence a letter from Dr. Dansker to petitioner‘s attorney in which Dr. Dansker stated that “any individual, under the reviewed set of instructions would be effectively removed from the open labor market.”
At the judge‘s direction, a final hearing was held on December 21, 1978, to determine whether Dr. Dansker qualified as an expert witness. Mr. Antonelli, a rehabilitation consultant, also testified and gave his evaluation of the rating specialist‘s recommendation and of petitioner‘s future employability in the open labor market. Mr. Antonelli stated that “a significant number of opportunities” would be available to petitioner.
On March 22, 1979, the workers’ compensation judge issued his findings and award. The judge found that the injury petitioner sustained had occurred during the course of his employment and had precipitated an anxiety neurosis. [REDACTED] The judge concluded that the neurosis had caused a temporary total disability from the day after the accident until February 8, 1977, the date petitioner‘s mental status was evaluated by Dr. Beaulieu as permanent and stationary.2 The judge further found that the anxiety neurosis caused a 60 percent permanent disability, none of which was apportionable to any prior condition and awarded petitioner permanent disability benefits based upon this 60 percent rating.3
By law, an employer is required to file with the Bureau a work status report on any injured employee who is unlikely to be able to return to his or her usual occupation on a permanent basis. (
On August 8, 1978, the Bureau issued an order deferring resolution of the question as to whether petitioner was qualified for vocational rehabilitation services. The Bureau stated that the materials submitted by A.C. Transit indicated that petitioner would be eligible for rehabilitation. It noted, however, that because there was a dispute as to the extent of petitioner‘s disability, any decision on the need for vocational rehabilitation would be deferred until the extent of petitioner‘s disability was clarified by the WCAB.
On May 3, 1979, A.C. Transit sent a letter to the Bureau advising it that the workers’ compensation judge had determined that petitioner was 60 percent permanently disabled. Also enclosed was a copy of the letter written by Dr. Dansker to petitioner‘s counsel indicating that petitioner was unemployable. (See ante, p. 238.)
On January 28, 1980, the Bureau issued its decision and order on petitioner‘s eligibility for rehabilitation benefits. The Bureau first stated that petitioner “is medically eligible for rehabilitation benefits under Labor Code Section 139.5 inasmuch as he is unable to return to his usual and customary occupation as a bus driver. . . .” The Bureau noted, however, that given the information provided in Dr. Dansker‘s letter, its “impression” was that
On January 16, 1981, petitioner filed a petition to reopen the compensation proceedings, arguing that the prior finding of 60 percent permanent disability was erroneous. (See
On June 10, 1981, the workers’ compensation judge denied the petition to reopen, concluding “as a matter of law that a purported decision by the rehabilitation bureau to the effect that an applicant is no[t] amenable to vocational rehabilitation and hence presumably unemployable cannot by itself constitute good cause to reopen an otherwise final decision of the Board.”
Petitioner filed a petition to reconsider the judge‘s order with the WCAB. On September 14, 1981, the WCAB denied the petition. Two independent reasons for its decision were articulated. First, the WCAB concluded that the Bureau‘s decision did not constitute new evidence but was merely a different interpretation of the same evidence that was before the workers’ compensation judge when he made his initial findings. Second, petitioner‘s proper remedy would have been to appeal the Bureau‘s decision that he was unqualified to receive rehabilitation benefits.
Petitioner now seeks review of this decision.
II.
[REDACTED] The primary issue presented by this case is whether, under section 5803, a determination by the Bureau that an injured worker does not qualify
[REDACTED] This court has repeatedly recognized that a rule of liberal construction should be applied to all aspects of workers’ compensation law. (Webb v. Workers’ Comp. Appeals Bd. (1980) 28 Cal.3d 621, 626 [170 Cal.Rptr. 32, 620 P.2d 618]; Judson Steel Corp. v. Workers’ Comp. Appeals Bd. (1978) 22 Cal.3d 658, 668 [150 Cal.Rptr. 250, 586 P.2d 564]; Kerley v. Workmen‘s Comp. App. Bd. (1971) 4 Cal.3d 223, 227 [93 Cal.Rptr. 192, 481 P.2d 200].) Further, section 3202 specifically requires that “[t]he provisions of Division 4 and Division 5 [of the Labor Code, which include § 5803] . . . 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.”
[REDACTED] Under section 5803, the WCAB has continuing jurisdiction to reopen a case and, after notice and an opportunity to be heard, to rescind, alter or amend any award upon a showing of “good cause.”9 The cases construing this section 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. (Nicky Blair‘s Restaurant v. Workers’ Comp. Appeals Bd. (1980) 109 Cal.App.3d 941, 956-959 [167 Cal.Rptr. 516]; Ryan v. Workmen‘s Comp. App. Bd. (1968) 265 Cal.App.2d 654, 661-662 [72 Cal.Rptr. 140].) Similarly, a subsequent clarification of the applicable law by a reviewing court which indicates that an employee was originally entitled to a different award than that given is “good cause” to reopen a case and amend an award. (Knowles v. Workmen‘s Comp. App. Bd. (1970) 10 Cal.App.3d 1027, 1030 [89 Cal.Rptr. 356]; State Comp. Ins. Fund v. Ind. Acc. Com. (1946) 73 Cal.App.2d 248, 257-259 [166 P.2d 310].)
Here, petitioner contends that the Bureau‘s determination that he is unqualified to receive rehabilitation benefits constitutes just such a new circumstance. Further, his previous permanent disability award, based on a 60 percent permanent disability rating, is inequitable in light of the fact that he cannot receive rehabilitation benefits. Petitioner asserts that the Bureau‘s determination that he “may be unable to be returned to suitable gainful employment” should be reflected in the permanent disability award, since that award is a measure of an injured worker‘s earning capacity. Respondent, on the other hand, contends that the Bureau‘s determination with respect to petitioner‘s eligibility for vocational rehabilitation is wholly irrelevant to a determination of permanent disability.
Vocational rehabilitation benefits are among the specific benefits which are included in the “compensation” to be provided by employers to workers who are injured on the job. (
The statutory scheme envisions that vocational rehabilitation will be provided an injured worker before a final decision is reached on the nature and extent of his or her permanent disability. As this court stated in Webb, “‘[i]t
Establishing the right to rehabilitation benefits prior to any final determination of a worker‘s permanent disability is consistent with the general rule that consideration should be given to the injured worker‘s “diminished ability . . . to compete in an open labor market.” (
In most cases, the provision of rehabilitation benefits will have a significant impact on an injured employee‘s ability to compete. If job training makes it possible for a worker to compete in a new sector of the labor market for which he or she was previously unprepared, the worker‘s permanent disability rating and award will reflect this fact. (Cf. Moyer v. Workmen‘s Comp. Appeals Bd. (1973) 10 Cal.3d 222, 234 [110 Cal.Rptr. 144, 514 P.2d 1224], and fn. 10 in which this court recognized that former
Similarly, the fact that an injured employee is precluded from the option of receiving rehabilitation benefits should also be taken into account in the assessment of an injured employee‘s permanent disability rating. Just as retraining may increase a worker‘s ability to compete in the labor market, a determination that he or she cannot be retrained for any suitable gainful employment may adversely affect a worker‘s overall ability to compete. Accordingly, that factor should be considered in any determination of a permanent disability rating.
Further, the receipt of or preclusion from rehabilitation benefits should not be disregarded just because the usual order of proceeding was not followed. This is especially true in this case. The WCAB‘s determination preceded that of the Bureau through no fault of the petitioner. Indeed, the WCAB has suggested that an employer may challenge a prior award of permanent disability once an employee has completed a vocational rehabilitation program since the employee‘s permanent disability may have been
The WCAB gave two reasons for rejecting petitioner‘s request to reopen his case. First, the WCAB reasoned that the Bureau‘s determination was based upon the same evidence that the workers’ compensation judge considered at petitioner‘s permanent disability hearing. However, it is irrelevant that the Bureau may have based its eligibility decision on the same evidence which the WCAB considered in affirming the permanent disability rating. Petitioner is not contending that the new and significant factor which warrants reopening of his award is Dr. Dansker‘s letter concerning his future employability or any of the other evidence which was before the workers’ compensation judge. What is new and significant is the Bureau‘s determination that petitioner is not qualified to receive any rehabilitation benefits. This determination, which is an important one in assessing petitioner‘s ability to compete in the open labor market, was not available to or considered by the workers’ compensation judge. Accordingly, it constitutes “new evidence” not previously available which may render the previous award inequitable. Therefore, there is good cause to justify a reopening of this case. (See ante, pp. 241-242.)
The WCAB‘s second reason for denying petitioner‘s request to reopen his case was that an appeal from the Bureau‘s decision was the appropriate remedy. Insofar as such an appeal should precede but not preclude a petition for reopening, this argument has merit.
[REDACTED] The legislative purpose in enacting
Accordingly, an injured worker, who the Bureau has determined to be unqualified for rehabilitation benefits, must take full advantage of the appeal provisions of
III.
[REDACTED] A permanent disability rating should reflect as accurately as possible an injured employee‘s diminished ability to compete in the open labor
In this case, petitioner‘s permanent disability rating was established prior to a determination by the Bureau that he was not qualified to receive any vocational rehabilitation services. Consequently, the Bureau‘s subsequent determination that petitioner was not qualified to receive rehabilitation benefits constitutes the requisite “good cause” to reopen the hearing on his permanent disability rating and award.12
In keeping with past precedent, this rule will not be applied retroactively.13 These procedures are available only to injured workers who have not yet received a decision from the Bureau as to their qualification for rehabilitative benefits. However, petitioner‘s right to appeal the adverse Bureau determination to the WCAB is preserved.
Accordingly, the decision of the WCAB is annulled. Petitioner is entitled to file an appeal of the Bureau determination within the 20-day regulatory time period.14
Mosk, J., Kaus, J., Broussard, J., Reynoso, J., and Sims, J.,* concurred.
RICHARDSON, J., Concurring and Dissenting.—I concur with the majority‘s conclusion that an injured worker must appeal an adverse decision of the Rehabilitation Bureau (Bureau) before seeking to reopen a permanent disability decision. I respectfully dissent from my colleagues’ unnecessary discussion of the merits of the potential motion for reopening which might be made should petitioner‘s appeal from the Bureau‘s decision prove unsuccessful.
The Workers’ Compensation Appeals Board (Board), in denying petitioner‘s request to reopen, specifically stated that any claim of inequity arising
*Assigned by the Chairperson of the Judicial Council.
The majority, while holding that an appeal of the Bureau‘s order is a prerequisite to a motion to reopen (ante, pp. 244-245), fails to give sufficient weight to the fact that the Board itself primarily relied upon petitioner‘s very failure to appeal as a basis for refusing to reopen its disability decision. In its conclusion, the Board specifically stated “Applicant‘s remedy was to have appealed the decision of the Rehabilitation Bureau and to have asserted the inconsistency between the Rehabilitation Bureau‘s rationale with the rationale of the judge‘s earlier decision.” (Italics added, Board‘s Opinion and Order Denying Reconsideration, supra, p. 7.) My colleagues nonetheless discuss the effect of the Bureau‘s order, which they admit is not final, and which they have now held did not provide grounds for reopening because it was not appealed. It seems to me that in order to be consistent we should simply reaffirm the requirement that an appeal of an adverse Bureau decision must be taken and remand the case for that purpose. We should leave for a later day the full consideration of the effect of a final refusal to reopen based upon a Bureau decision that rehabilitation is not appropriate.
While believing that any discussion of the merits is dictum, nonetheless I feel it necessary to challenge several aspects of my colleagues’ analysis. In my view, the majority errs in its strong implication (ante, p. 243) that rehabilitation must be provided before a final decision has been made on the extent of a worker‘s permanent disability. While citing Webb v. Workers’ Comp. Appeals Bd. (1980) 28 Cal.3d 621, 627 [170 Cal.Rptr. 32, 620 P.2d 618], quoting from Ponce De Leon v. Glaser Brothers (1977) 42 Cal.Comp.Cases 962, 968, to buttress their assertion, my colleagues fail to
Of more significance, the Board‘s substantive rationale for denying any reopening of the disability phase in this case is persuasive for several reasons. First, as noted, petitioner failed to avail himself of an administrative opportunity to resolve any ambiguities. Second, there was conflicting evidence. While petitioner, at the hearing on permanent disability, presented evidence from Dr. Dansker, a rehabilitation counselor, who opined that few, if any, jobs would be available to petitioner because of his medical condition, the administrative law judge relied on competent contrary evidence that petitioner was not totally disabled. The judge noted that “The percentage of permanent disability is not the equivalent of a prediction as to whether an injured employee will, in fact, resume employment. Practically all individuals have inherent limitations with respect to such factors as education, intelligence, personality, stamina, or motivation which preclude certain employment areas from their consideration whether or not they have been injured. . . . The test concerns the ability to compete with other individuals, not the likelihood of finding and holding a job.” Following this original decision, petitioner sought reconsideration which was denied by the judge and by the Board; the Court of Appeal also denied his subsequent petition for writ of review.
The majority reasons that despite the fact that Dr. Dansker‘s material had already been presented to the administrative law judge, the rehabilitation decision itself independently created new grounds for reopening. The flaw in this analysis is that nothing in the original disability determination suggested that either the judge or the Board there relied upon any expectation that petitioner would qualify for rehabilitation benefits in reaching the determination of partial disability. An employee is not required to seek rehabilitation. Nor does the statutory provision for rehabilitation benefits require that unless such benefits are appropriate for a particular employee, permanent total disability must be found. While the rehabilitative potential of an employee may well be relevant in the determination of the degree of permanent disability, qualification for the Bureau‘s services in no sense is a precondition to a finding of partial as opposed to total disability.
In conclusion, because (1) the original determination of partial disability did not rely on any expectation that petitioner would successfully undertake rehabilitation, and (2) the Bureau‘s determination that petitioner was ineligible for its services rests upon the same information which was considered by the judge who determined the degree of permanent disability, the Board‘s order denying reconsideration may have been justified substantively.
Respondents’ petition for a rehearing was denied October 6, 1983, and the opinion was modified to read as printed above. Grodin, J., did not participate there. Richardson, J., was of the opinion that the petition should be granted.