LOUIS J. LEVESQUE, Petitioner, v. WORKMEN‘S COMPENSATION APPEALS BOARD, FOOD MACHINERY AND CHEMICAL CORPORATION et al., Respondents.
S. F. No. 22697
In Bank. Supreme Court of California
Jan. 22, 1970.
1 Cal. 3d 627
Morgan, Beauzay & Hammer, Robert T. Bledsoe and Victor H. Beauzay for Petitioner.
Everett A. Corten, Rupert A. Pedrin, Marcel L. Gunther and Robert MacLean for Respondents.
OPINION
TOBRINER, J.--Petitioner seeks review of a decision of the Workmen‘s Compensation Appeals Board (hereinafter appeals board) after denial of reconsideration in which the appeals board adopted the report and recommendation of the referee who decided that petitioner was entitled to further medical treatment for his injuries but was not entitled to an award of temporary compensation. We conclude that the appeals board‘s order denying reconsideration may incorporate and include the report of the referee, as long as the referee‘s report makes reasonably clear the basis of decision; but upon a review of the entire record we hold the appeals board‘s decision in this case lacks the support of substantial evidence and thus cannot stand.
1. The Facts
Petitioner worked for the Food Machinery and Chemical (FMC) Corporation as a Du-All Saw operator and bar stockkeeper in San Jose, California. Apparently both jobs must be performed together and involve the cutting and storage of metal. Although the petitioner could use an overhead crane for most lifting, the work at times required petitioner to lift by hand stock weighing 200 to 250 pounds.1 While in the course of his
Petitioner initially received treatment from Dr. Karl Schaffl, a physician for the insurance carrier, but Dr. Schaffl referred petitioner to Dr. John J. Dedinsky, an orthopedic specialist, who has treated petitioner for all three of his injuries under authorization from the insurance carrier.
One of Dr. Schaffl‘s earliest reports indicates that petitioner is suffering from olecranon bursitis, particularly in his right elbow. Since the FMC Corporation had terminated petitioner‘s employment, Dr. Schaffl concluded on November 13, 1967, that petitioner is “entitled to compensation until bursitis subsides.” On December 11, 1967, Dr. Schaffl indicated that he was relying upon consultation with Dr. Dedinsky and that “[p]atient will remain on compensation until recovered from all 3 injuries.” Dr. Schaffl reported on January 3, 1968, that petitioner had recovered from his injuries to his right elbow and right knee but still required treatment for his left knee. Dr. Schaffl did not clear petitioner for work, but referred the matter to Dr. Dedinsky.
On January 11, 1968, Dr. Roy Smith agreed with Dr. Schaffl that petitioner required treatment for olecranon bursitis but concluded that petitioner suffered no disability. Neither the referee nor the parties apparently rely upon Dr. Smith‘s very brief report or Dr. Schaffl‘s incomplete report. Dr. Smith only saw petitioner once. The referee concluded that petitioner continued disabled through March 1968 without citing Dr. Smith‘s or Dr. Schaffl‘s reports, but instead by relying on Dr. Dedinsky‘s many reports. Dr. Smith‘s and Dr. Schaffl‘s reports are not relevant to the period after March 1968 during which petitioner was under the care of Dr. Dedinsky and about which we are here concerned.2
Dr. Dedinsky reported on January 17, 1968, to Dr. Schaffl that petitioner was “still totally disabled.” But on February 15, 1968, Dr. Dedinsky indicated that petitioner “could return to his former type of work as of February 26, 1968.”3 Although petitioner continued unsuccessfully to
Again on April 8, 1968, Dr. Dedinsky filed a report which the referee quoted: “Mr. LeVesque is showing good progress at the present time. He was encouraged to continue with the use of moist heat, elastic bandage support and increased active exercises with reference to the muscles in the region of both knees. At this time, it is felt he could return to his former type of work, as a Do All operator not requiring heavy lifting. I plan to recheck him in a period of six weeks.” (Italics added.) The treating doctor has never released petitioner from the weight limitations imposed in his work clearance of March 21 and his medical report of April 8, 1968.
After Dr. Dedinsky‘s limited work clearance, petitioner continued unsuccessfully to seek work until mid-summer 1968 when he secured a job as a cook for the County of Santa Clara, because he had worked as a cook in the past. While petitioner was employed by the county he visited Dr. Dedinsky on July 25 and Dr. Dedinsky reported his conclusion on August 6, which the referee quoted: “Mr. Louis LeVesque is showing some progressive stabilization of his injuries to both knees and the right elbow. At present, he is working as a cook and feels this is not causing him any particular problem with reference to his knees. He was advised to continue with the use of periodic heat and active exercises for the muscles in both lower extremities. I plan to recheck him in a period of two months.” Petitioner remained at work for the 30-day probationary period, but he could not work full time. At the end of the 30 days the county informed petitioner that his work appeared unsatisfactory and released him.
Petitioner‘s unemployment compensation coverage ended in September 1968. He continued to seek work and secured a job as a cook for Sweden House. While petitioner was employed at Sweden House, he reported to Dr. Dedinsky for his regular appointment. Dr. Dedinsky did not note
Dr. Dedinsky has reported further visits with petitioner on December 12, 1968, February 14, 1969, and May 22, 1969.5 All these reports and petitioner‘s testimony before the referee on March 4, 1969, indicate (1) that petitioner continues to suffer from his bursitis condition and the consequence of his three injuries, (2) that petitioner continues to receive treatment for his injuries, and (3) that Dr. Dedinsky has neither repeated nor withdrawn his weight lifting limitation. Continuing to seek work, petitioner requested the assistance of the Department of Rehabilitation. Upon the department‘s advice petitioner returned to school to learn basic mathematics and English so that he could secure other employment.
At the request of petitioner‘s attorney, Dr. Messinger thoroughly examined petitioner on November 29, 1968, and rendered a conclusion which the referee quoted, “The patient has been advised to continue under the care of Dr. John Dedinski. I do not think this case will be ready for closure for at least another year. He still should be in a modified work category, trying to avoid squatting and kneeling wherever possible, as well as, trying to avoid contusing the right elbow.”
Petitioner filed an application for workmen‘s compensation benefits for the three injuries on January 22, 1969, and the three cases6 were consolidated for a hearing held on March 4, 1969. The referee found that petitioner‘s occupation is that of a Du-All Saw operator and bar stockkeeper; that his condition arose from injuries in the course of his employment; that his condition is not yet permanent and stationary; that he did not suffer temporary disability beyond March 21, 1968; and that petitioner is entitled only to further medical treatment reasonably necessary to cure the effects of the injury.
Having filed a timely petition for reconsideration, petitioner contended that he continues to be temporarily disabled and deserves an award of temporary disability compensation until he can return to work. The referee filed a report and recommended denial of reconsideration. After summarizing the medical history of petitioner‘s condition, the referee con-
On May 22, 1969, the appeals board filed an order denying reconsideration.7 The petitioner sought a writ of review from the Court of Appeal for the First Appellate District, Division Four, which denied the petition without opinion on September 19, 1969. We granted a hearing to decide whether the appeals board can satisfy the requirements of
2. The appeals board may deny a petition for reconsideration by memorandum order incorporating the report of the referee, so long as the report of the referee details the facts and reasons upon which it relies.
In Evans v. Workmen‘s Comp. App. Bd. (1968) 68 Cal.2d 753 [68 Cal.Rptr. 825, 441 P.2d 633], we held that the appeals board did not regularly pursue its authority under
We suggested two bases for the requirements of detailed findings of fact and statements of reasons as set forth in Evans. First, the Legislature indicated in
Although these two reasons apply with great force to any decision rendered by the appeals board after reconsideration, they do not apply to an appeals board decision denying reconsideration. In Evans, having granted reconsideration, the appeals board reached its own decision without properly pursuing its authority under
The appeals board in the present case, however, by adopting and incorporating the report of the referee, has provided the reviewing court with adequate guidance. The referee‘s report clearly indicates the basis of his decision. The appeals board has therefore fulfilled the first rationale of Evans by adopting and incorporating the referee‘s decision which clearly states the factual and rational basis of its order denying reconsideration.9
As to the second rationale of Evans, we must read
We hold that if the appeals board denies a petition for reconsideration its order may incorporate and include within it the report of the referee, provided that the referee‘s report states the evidence relied upon and specifies in detail the reasons for the decision. (See
3. The decision of the appeals board and the report of the referee lack the support of substantial evidence:
In our appellate review of the decisions of the appeals board, which exercises a long-acknowledged administrative expertise, we have required that the record contain substantial evidentiary support for the appeals board‘s decisions. (
We must return to the very explicit language of
Petitioner contends that the referee lacked substantial evidence for his conclusion that the petitioner was not entitled to temporary compensation. Petitioner contends that he still suffers from a considerable handicap which renders him unable to return to his occupation as a bar stockkeeper
The referee himself summarized the evidence in such a way as to compel the conclusion that petitioner was entitled to temporary disability compensation. The referee established that petitioner still suffers from the temporary injuries incurred in the course of his employment; indeed, the referee granted compensation for further treatment of petitioner‘s condition. Thus the referee recognized that Dr. Dedinsky, the insurance carrier‘s physician who has treated petitioner throughout, released petitioner for work with a lifting limitation of 25 pounds; and that although the doctor has seen petitioner several times since the limited work release, the doctor has never removed the limitation. Since the referee stated that petitioner‘s occupation at the time of the injury was that of a Du-All Saw operator and bar stockkeeper, any discussion of subsequent unsuccessful attempts to find work as a cook becomes irrelevant.20 The referee understood that petitioner‘s occupation as a Du-All Saw operator and bar stockkeeper sometimes required that petitioner lift stock weighing from 200 to 250 pounds. Even petitioner‘s work as a cook required lifting which petitioner could not perform adequately for him to remain employed. Having established all these facts, the referee illogically concluded that petitioner did not qualify for temporary disability compensation.
The referee‘s only support for his conclusion appears in his report and recommendation on the petition for reconsideration. After reviewing Dr. Dedinsky‘s reports and Dr. Messinger‘s report, the referee observed, “The general tenor of the medical reports, especially when considered in the light of other factors,21 suggests that the doctor‘s cautions were more in the nature of prophylactic advice rather than rigid restrictions.”22
The referee himself summarized the medical evidence as follows: “Dr. Dedinsky released him, with a lifting limitation of 25 pounds“; or as follows: “In about February of 1968, Dr. Dedinsky gave him a return-to-work slip, with a lifting limitation.” No substantial evidence can support the referee‘s rejection of the uncontradicted medical opinion in the record or his characterization of the “doctor‘s cautions” as “more in the nature of prophylactic advice rather than rigid restrictions.”
The referee and appeals board “must accept as true the intended meaning of [evidence] both uncontradicted and unimpeached.” (McAllister v. Workmen‘s Comp. App. Bd., supra, 69 Cal.2d 408, 413.) Although we have long permitted a referee to rely upon the clearly relevant judgment of a single physician in making his decision (Smith v. Workmen‘s Comp. App. Bd., supra, 71 Cal.2d 588, 592; Jones v. Workmen‘s Comp. App. Bd., supra, 68 Cal.2d 476, 479-480; Standard Rectifier Corp. v. Workmen‘s Comp. App. Bd. (1966) 65 Cal.2d 287, 292 [54 Cal.Rptr. 100, 419 P.2d 164]; Allied Comp. Ins. Co. v. Industrial Acc. Com. (1961) 57 Cal.2d 115, 122 [17 Cal.Rptr. 817, 367 P.2d 409]; Liberty Mut. Ins. Co. v. Industrial Acc. Com. (1948) 33 Cal.2d 89, 94 [199 P.2d 302]), the referee here relies upon no medical authority in concluding that petitioner is not disabled from performing the lifting required in his occupation. Both Dr. Messinger and Dr. Dedinsky, the only two physicians who have seen or treated pe-
The Substantial Evidence Rule in California Administrative Law (1956) 8 Stan. L.Rev. 563, 580-583) and thus disregard relevant evidence in the record. (See Dowden v. Industrial Acc. Com. (1963) 223 Cal.App.2d 124, 133-134 [35 Cal.Rptr. 541].) For example, neither the reviewing court nor the board may pick and choose among reports of the same doctor so as to ignore the report which, by reason of its date and discussion, is the most relevant to the claim. (See Jones v. Workmen‘s Comp. App. Bd., supra, 68 Cal.2d 476, 480.) We must reject the suggestion that we disregard Dr. Dedinsky‘s letter of April 8 which explains the weight limitation on the work release of February 15. We must not isolate and only consider the letter of February 15 completely out of context. (See fns. 2 and 3, supra.) Similarly, Dr. Dedinsky‘s release for work “as a Do All operator not requiring heavy lifting” cannot be construed as a release to return to applicant‘s former work in the face of the uncontradicted indication that his work requires heavy lifting.
We hold that the appeals board and the referee lacked substantial evidence in concluding that petitioner was not suffering from temporary disability which would entitle him to temporary disability compensation.
The decision of the Workmen‘s Compensation Appeals Board is annulled and the cause remanded to that board for proceedings consistent with the views expressed herein.
Traynor, C. J., Peters, J., Mosk, J., Burke, J., and Sullivan, J., concurred.
McCOMB, J.--I dissent. I would affirm the decision of the Workmen‘s Compensation Appeals Board.