Glass v. Workers' Compensation Appeals Board

Petitioner Walter C. Glass contends that respondent Workers’ Compensation Appeals Board (Board) erred in omitting certain factors of permanent disability in the rating of his disability. We find merit in Glass’ contention. Accordingly we annul the Board’s decision and remand the matter to the Board for further proceedings.

Summary of Proceedings Before Appeals Board

While employed from October 3, 1966, to September 9, 1976, as a fireman by respondent City of Glendale (City), Glass sustained injury arising out of and occurring in the course of said employment to his head and nervous system.

The workers’ compensation judge (WCJ) found that the injury resulted in the following factors of permanent disability, which the WCJ referred to the disability evaluation bureau (hereinafter rating bureau) for a recommended rating:

“Injury to Head and Nervous System

“Please rate for objective factors contained in the report of David J. LaFia, M.D., dated January 27, 1978.

“Subjective: Constant sensation of clumsiness and numbness in right hand. Headaches, intermittent slight to moderate lasting about two hours once or twice a month. Limitation to light work.”

In this regard Dr. LaFia’s report states in pertinent part:

“Disability Rating:

“1. Permanent and stationary.

“2. Disability factors: Subjective complaints of constant sensation of clumsiness and numbness in the right hand with inability to recognize solid objects such as a key or the like with his right hand. Intermittent slight to moderate headache lasting about 2 hours once or twice a month requiring medication. History of focal epileptic seizure of the right upper extremity for which the patient takes Dilantin on a prophylactic basis.

“Objective factors: Diminished sensation in the right hand as well as a loss of perfect ability to recognize solid objects.

“Work Capacities:

“If this patient had to compete on the open labor market, it would be unwise for him to attempt any job that demanded climbing up ladders or working at heights, around heavy construction or operating heavy construction machinery. Also, he would not be fit for skilled movements with his right hand, such as a watchmaker, machinist, toolmaker, etc.

“There is also an element of anxiety which the loss of ability of his right hand for fine movements. He stated to me that he has become embarrassed on many occasions when he would have to look at an object with his right hand. Also, there is the anxiety which makes him take Dilantin 3 times a day in order to prevent a seizure. In other words, there is always the threat of seizure to him.

“Therefore, the most comprehensive rating would be that which limits him to light work.”

Based upon the WCJ’s stated factors of permanent disability the rating bureau disability evaluation specialist (hereinafter rater) recommended a permanent disability rating of 57-1/2 percent (which is equivalent to 293.5 weeks of disability payments at $70 per week for a total of $20,545).

The WCJ issued an award of 57-1/2 percent permanent disability based on the rater’s recommendation.

City then sought reconsideration by the Board on the question of permanent disability. Granting reconsideration, the Board stated: “Although Dr. LaFia does suggest a limitation to light work is warranted, the Board is not persuaded that such a description sets forth the factors of disability. Apparently, Dr. LaFia used the light work limitation as a means of characterizing the factors of disability rather than as a factor of disability. The Board is of the opinion that the rating instructions utilized by the workers’ compensation judge do not accurately and completely describe the nature and extent of applicant’s disability. We are persuaded that new rating instructions should be formulated based upon the factors of disability set forth by Dr. LaFia and

The Board then directed the following factors of permanent disability, which left out Dr. LaFia’s light work restriction, to the rating bureau for evaluation: “Injury to head and nervous system.

“Please rate for objective factors contained in the medical report of David J. LaFia, M.D., dated January 27, 1978.

“Applicant precluded from climbing up ladders, working at heights and from employment requiring skilled movements with right hand.

“Subjective complaints include complaints of constant sensation of clumsiness and numbness in right hand. Intermittent slight to moderate headache lasting about two hours once or twice a month.”

Based upon these factors of permanent disability, the rater recommended a 48-3/4 percent permanent disability rating (which amounts to 233.75 weeks of disability payments at the rate of $70 per week in the total sum of $16,327.50).

Thereafter, the Board issued an amended permanent disability award of 48-3/4 percent. The Board “believe[d] that the 48-3/4% permanent disability rating is a fair and accurate characterization of applicant’s [Glass’] overall disability.” The Board stated that: “The permanent disability rating was based upon the medical report of David J. LaFia, M.D., and hence, justified by the evidence.” However, the Board also stated: “The Board was not persuaded that the limitation to light work set forth by Dr. LaFia accurately described applicant’s factors of disability. The light work limitation appeared to be used to characterize the factors of disability rather than constituting a factor of disability.” (Italics added.)

Contention

Glass contends that the Board erred in not including a limitation to “light work” as suggested by Dr. LaFia in the factors of permanent dis

The authority relied upon by the Board in Becker is Luchini v. Workmen’s Comp. App. Bd. (1970) 7 Cal.App.3d 141 [ 86 Cal.Rptr. 453 ], where the court faced the application of the Guidelines to a right leg injury. In evaluating the injured’s permanent disability, the Board relied upon the opinion of a physician from the Medical Bureau of the Division of Industrial Accidents. The physician opined that the injured “should be limited to light work and should not walk on uneven terrain or do any climbing” and that with the “type of injury and bone graft which occurred to applicant [he] should do no lifting and particularly no heavy lifting and certainly not over 25 pounds and certainly not where he will have to twist as he would run into the same hazards as would be experienced if he walked on uneven terrain.” The Board refused to incorporate in the rating instructions the physician’s recommended prophylactic work restrictions. The court held the Board erred in not including such work restrictions in the rating instructions: “It has long been recognized that in rating back disabilities there are four major elements to be considered: limitation of motion; pain; weakness; and limited endurance; and the basis for rating is usually restriction on activity produced by a combination of these four elements plus additional factors such as the use of appliances, etc. These plateaus or guidelines for rating are well known and a limitation to light manual labor is 40 percent while a limitation to light work is 50 percent before

“In any event, the board cannot rely on some administrative procedure to deny to petitioner a disability award commensurate with the disability that he has suffered. Whether compliance with the law as laid down in LeVesque, and in this opinion, requires amended instructions to the rating specialist, or a revision of the rating procedures, or whether it can be accomplished under section 4660, subdivision (a) of the Labor Code, are procedural matters for the board to determine on remand; its duty is to take whatever steps are necessary to insure that the award of permanent disability granted petitioner takes fully into consideration the work restrictions imposed by the treating physicians.” (Luchini, supra, 7 Cal.App.3d at p. 146.)

In Abril v. Workers’ Comp. Appeals Bd. (1976) 55 Cal.App.3d 480 [ 127 Cal.Rptr. 483 ], the court was presented with the application of the Guidelines to an eye injury. There the injured’s factors of permanent disability included loss of vision, watering of the eye and also a physician-recommended restriction from “vigorous activity, heavy lifting and activity involving jarring and sudden motion” in order “[t]o avoid the risk of further retinal detachment.” Under the Rating Schedule loss of vision is the usual basis for the rating of an eye injury. The rater recommended at total 37 percent rating based upon a 25 percent standard for loss of visual acuity, which adjusted to 32 percent for age and occupation, plus a 2 percent increment for watering of the eye, and only 3 percent for the work restriction. The rater refused to apply the Guidelines’ standard ratings for the work restriction on the asserted grounds of “judgmental ceiling” on eye disability. While the court in Abril rejected the outright application of the Guidelines’ standard ratings, it also rejected the rater’s (and the Board’s) ceiling on ratings for eye injuries. In this regard the court stated at pages 485-486: “As is not unusual, we find the appropriate result to lie approximately equidistant between the positions of these contending parties. Contrary to the contention of the applicant, simple addition of the 25 percent value from category (d) of the guidelines would not be appropriate for several reasons. By their terms those guidelines are limited to ‘pulmonary, heart

“On the other hand, we cannot accede to the appeals board’s position that every injury to an eye is limited in its disabling effect to the 25 percent value assigned to the loss of vision in the standard rating tables .... [A]s explained and illustrated in Nielsen v. Workmen’s Comp. Appeals Bd., 36 Cal.App.3d 756 , 758 [ 111 Cal.Rptr. 796 ], a rating that ignores the intangible or .nonbodily element ‘is not rationally related to Applicant’s diminished ability to compete on the open labor market as is required by Labor Code section 4660, subdivision (a). It is, therefore, arbitrary, unreasonable and not supported by the evidence in light of the entire record.’”

Accordingly, when work restrictions are applicable as to any part of the body, not expressly covered by the Guidelines or under Becker, the work restriction is to be taken into consideration in the rating of the permanent disability. This is not to say, however, that the Guidelines’ standard rating is to be applied. Rather, when work restrictions are involved concerning bodily parts not specifically stated in the Guidelines or covered under Becker, the rater must evaluate the standard rating appropriate for the work restriction by analogy or comparison and achieve a judgment rating.

Such “judgment” or “non-scheduled” ratings are an accepted part of the permanent disability rating process as it is recognized that not all disabilities can be expressly covered in the Rating Schedule. (Department of Motor Vehicles, supra, 20 Cal.App.3d at pp. 1043-1045; Fidelity & Cas. Co., supra, 252 Cal.App.2d 327 ; Young v. Industrial Acc. Com. (1940) 38 Cal.App.2d 250 -255 [ 100 P.2d 1062 ]; 1 Hanna, op.

The Board may not rely upon alleged limitations in the Rating Schedule to deny the injured worker a permanent disability award which accurately reflects his true disability. (Abril, supra, 55 Cal.App.3d at pp. 485-486; Nielsen v. Workmen’s Comp. Appeals Bd. (1974) 36 Cal.App.3d 756 [ 111 Cal.Rptr. 796 ]; Luchini, supra, 7 Cal.App.3d at p. 146; see also, Universal City Studios, Inc. v. Workers’ Compensation Appeals Board (1979) 99 Cal.App.3d 647 , 661-664 [ 160 Cal.Rptr. 597 ].) While the Rating Schedule is prima facie evidence of the proper disability rating, it may be controverted and overcome. (Universal City Studios, supra, 99 Cal.App.3d at pp. 662-663.)

In rebuttal to the Rating Schedule, Glass has presented the medical opinion of Dr. LaFia that a “light work” limitation is an accurate overall description of his permanent disability. City, for its part, presented no evidence that a light work restriction is either inappropriate for this type of disability or that the findings of Dr. LaFia do not support such a restriction.

I

n its rating instructions to the rating bureau, the Board must set forth a full description of every factor of the injured’s permanent disability. (Hegglin v. Workmen’s Comp. App. Bd. (1971) 4 Cal.3d 162 , 172 [ 93 Cal.Rptr. 15 , 480 P.2d 967 ].) Further, “It is well settled that the board, if it relies at all on the report and testimony of a medical examiner must give full weight to all of the findings of that doctor, and may not omit a factor of disability described by him. (Luchini v. Workmen’s Comp. App. Bd. (1970) 7 Cal.App.3d 141 , 145 [ 86 Cal.Rptr. 453 ]; Mann v. Workmen’s Comp. App. Bd. (1968) 265 Cal.App.2d 333 , 339 [ 71 Cal.Rptr. 237 ]; Fidelity & Cas. Co. v. Workmen’s Comp. App. Bd. (1967) 252 Cal.App.2d 327 [ 60 Cal.Rptr. 442 ].) An award which ignores such factors lacks substantial evidence to support it. (LeVesque v. Workmen’s Comp. App. Bd. (1970) 1 Cal.3d 627 [ 83 Cal.Rptr. 208 , 463 P.2d 432 ].)” (Franklin v. Workmen’s Comp. Appeals Bd. (1971) 18 Cal.App.3d 682 , 684 [ 96 Cal.Rptr. 201 ].)

It is recognized that the above rule in Franklin has limitations. Neither the WCJ nor the Board may rely upon a physician’s factor of disability which is known to be erroneous, based upon facts no longer germane, based upon an inadequate medical history or examination, based upon an incorrect legal theory, or based upon speculation, conjecture or guess. (See Hegglin, supra, 4 Cal.3d at p. 169.)

Here, the Board disregarded the light work restriction indicated by Dr. LaFia as it believed he “apparently” was using “the light work limitation as a means of characterizing the factors of disability rather than as a factor of disability.” The Board asserts it is unconvinced that the individual factors of disability set forth by Dr. LaFia justify a “light work” restriction.

The error in the Board’s position is that it has assumed (i.e., Dr. LaFia, in the Board’s words, “appeared to. . .characterize”) rather than clarifying the situation with Dr. LaFia. Rather than speculating about Dr. LaFia’s meaning the Board should have clarified the matter by asking him either by letter or by direct testimony at a hearing. “The referee or appeals board may not leave undeveloped matters which its acquired specialized knowledge should identify as requiring further evi