WILSON v. WORKERS COMPENSATION APPEALS BOARD

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Court of Appeal, Sixth District, California.

Kathy Juileen WILSON, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD and Burke Industries, Respondents.

No. H003923.

Decided: September 22, 1988

Amanda Hawes, Gallardo, Chu & Hawes, San Jose, for petitioner. Thomas Finn, Mentz, Finn, Clarke, McDowell & Newton, San Jose, for respondents.

Petitioner Kathy Wilson (applicant) seeks review of the decision of respondent Workers' Compensation Appeals Board (board) that her permanent disability rating adequately reflects her physical limitations as a result of an industrial injury.   We hold that a proffered labor market survey is not a proper subject of consideration in computing the permanent disability rating in this case and accordingly affirm the board's decision.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Applicant was employed as a lead person/production worker by Burke Industries (Burke) between 1979 and 1984.   During this time she sustained an admitted injury to her pulmonary system in the form of asthma as a result of being exposed to chlorine gas and sulfuric acid fumes.   Burke's workers' compensation carrier, Western Employers Insurance Company, provided temporary disability indemnity and vocational rehabilitation.   By June 1986, applicant had completed her rehabilitation and was working as a secretary.

A hearing was held on February 3, 1987 on the issue of the extent of applicant's permanent disability.   At that time applicant testified that she uses a prescribed asthma medication as needed when around various chemical fumes.   She also requested an opportunity to file a report “of someone familiar with the labor market” as rebuttal to any recommended rating.   The workers' compensation judge (WCJ) allowed applicant thirty days to submit the report.

On March 3, a letter from a “certified rehabilitation counselor” was submitted indicating that from his reading of applicant's medical reports, he was of the opinion that applicant is precluded from 42 percent of the jobs available in an open labor market.   However, this report was never admitted into evidence by the WCJ.   A recommended permanent disability rating of 111/212 percent was filed, based on injury to applicant's “pulmonary system precluding her from working in an environment where smoke, dusts or chemical fumes are present.”   Applicant moved to strike the recommended rating and requested an opportunity to cross-examine the disability evaluation specialist.

On June 30, 1987, at his cross examination, the disability evaluation specialist stated he considered the description of the disability given was for a slight disability, or a 10 percent standard disability before consideration of age and occupation.   Applicant stated she did not disagree with the instructions given, only that additional consideration should be given in the recommended rating to the report indicating a preclusion from 42 percent of the jobs in the open labor market.   And on that basis alone, applicant again moved to strike the recommended rating.   The WCJ denied the motion as the instructions in the recommended rating were completely set forth in the report of Dr. Levine, Burke's examining physician.   An award was issued on August 4, granting applicant an 111/212 percent permanent disability and further medical treatment.

Applicant petitioned for reconsideration arguing the WCJ erred by not including the percentage of jobs in the open labor market precluded to applicant by her industrial injury in his rating instructions.   In his recommendation on the petition, the WCJ stated that the instructions given the rating specialist were the medical limitations to applicant's ability to work, and applicant had cited no authority for her proposition that the report regarding preclusion from the open labor market was a basis for arriving at a higher disability rating.   The board granted reconsideration in order to study the factual and legal issues in the case.

In its opinion and decision after reconsideration, the board rejected applicant's assertion that the labor market analysis should be made a component of her disability for rating purposes.   This was based on the fact that the individualized market analysis was not admissible into evidence under Labor Code section 5703 to prove the extent of an applicant's disability and that applicant never offered oral testimony regarding the percentage of the labor market from which she was precluded.   As applicant did not dispute that physically the effect of her industrial pulmonary injury may fairly be found to have caused an 111/212 percent disability after adjustment for age and occupation, the board affirmed the findings and award of the WCJ.

Applicant timely petitioned for a writ of review in this court which was summarily denied on March 14, 1988.   However, the Supreme Court granted her subsequent petition for writ of review to that court, and retransferred the matter to this court.   We have accepted amicus curiae briefs from the California Applicants' Attorneys Association and the California Workers' Compensation Institute, and considered the recent case of Duke v. W.C.A.B. (1988) 201 Cal.App.3d 8, 248 Cal.Rptr. 213.1  We come to the conclusion that the board's decision must be affirmed.

DISCUSSION

Under the California scheme of workers compensation, the Schedule for Rating Permanent Disabilities (Schedule) serves as the foundation for the rating of all permanent disabilities.   The Schedule is adopted pursuant to Labor Code section 4660, subdivision (b), which gives the Administrative Director of the Division of Industrial Accidents the authority to “prepare, adopt, and from time to time amend, a schedule for the determination of the percentage of permanent disabilities.”   The Schedule is structured so that “account [is] taken of the nature of the physical injury or disfigurement, the occupation of the injured employee, and his age at the time of such injury, consideration being given to the diminished ability of such injured employee to compete in an open labor market.”  (Lab.Code, § 4660, subdivision (a).)   By taking into account all of these factors, including an assessment of the effect that the applicant's injury will have on her ability to compete in an open labor market, the Schedule provides both a unitary and uniform approach to rating scheduled disabilities of injured employees.

Moreover, the Schedule also furnishes the basis for factors of disability which are not scheduled, since non-scheduled or “judgment” ratings are made by comparing or analogizing an applicant's condition to a scheduled disability.  (See, Fidelity & Cas. Co. v. Workmen's Comp. App. Bd. (1967) 252 Cal.App.2d 327, 332, 60 Cal.Rptr. 442;  Department of Motor Vehicles v. Workmen's Comp. Appeals Bd. (1971) 20 Cal.App.3d 1039, 1043–1045, 98 Cal.Rptr. 172;  Glass v. Workers' Comp. Appeals Bd. (1980), 105 Cal.App.3d 297, 306–307, 164 Cal.Rptr. 312.)   These ratings also must accurately reflect an applicant's diminished ability to compete in an open labor market.  (See, Nielson v. Workmen's Comp. Appeals Bd. (1974) 36 Cal.App.3d 756, 758, 111 Cal.Rptr. 796;  General Foundry Service v. Workers' Comp. Appeals Bd. (1986) 42 Cal.3d 331, 339, 228 Cal.Rptr. 243, 721 P.2d 124;  Glass v. Workers' Comp. Appeals Bd., supra, 105 Cal.App.3d at p. 306, 164 Cal.Rptr. 312.)

As the disability evaluation specialist testified, applicant's disability rating was arrived at by analogizing the disability as described in the instructions to a 10 percent standard disability before adjustment for age and occupation.   The standard disability, taken from the Schedule, included the ability of an injured applicant to compete in an open labor market as one of its considerations.   Thus, in arriving at the 111/212 percent disability rating, consideration was given to applicant's diminished ability to compete in an open labor market.   The labor market analysis proffered in this case would be irrelevant evidence, and thus was properly not considered by the board.

Here, applicant does not question the recommended rating on the basis that the rater did not correctly analogize her disability to a scheduled disability.   Rather, applicant asserts that, in her peculiar case, the proffered labor market analysis should be separately considered when deciding her permanent disability rating.   Applicant argues that the Schedule is only prima facie evidence of the percentage of permanent disability to be attributed to her injury, and as such is rebuttable.  (Lab.Code, § 4660, subd. (b);  Liberty Mut. Ins. Co. v. Industrial Acc. Com. (1948) 33 Cal.2d 89, 199 P.2d 302.)   She contends that she has proffered evidence that rebuts the scheduled rating.   But decisions discussing the consideration of such information in arriving at a permanent disability rating are not applicable to this case.

In LeBoeuf v. Workers' Comp. Appeals Bd. (1983) 34 Cal.3d 234, 193 Cal.Rptr. 547, 666 P.2d 989, the court stated that an individual worker's relative inability to compete in the open labor market may affect his or her ability to be vocationally retrained for suitable gainful employment, and to that extent, an individualized labor market analysis would be a relevant consideration in reaching a permanent disability rating.   In that case, the Rehabilitation Bureau subsequently determined the applicant was not qualified to receive vocational rehabilitation benefits as he would be unable to be returned to any suitable gainful employment because of his industrial injury after his permanent disability rating was set at 60 percent.   However, applicant here has been successfully rehabilitated and was working at the time of her hearing.   Thus, LeBoeuf does not help applicant in this case.

The recent case of Duke v. W.C.A.B., supra, is closer in facts to this case, but on close reading will not avail applicant either.   In that case the WCJ granted an award of 151/212 percent permanent disability based on injury from exposure to chemicals.   The board, however, rescinded the award.   The Court of Appeal annulled the decision of the board and remanded the case with directions to reinstate the award.   It found that consideration must be given to a worker's diminished ability to compete in an open labor market when deciding if a ratable permanent disability exists.   Thus, even though in that case the applicant's headaches subsided when he left his employment, the fact that he was precluded from accepting employment from a number of employers is a basis for finding a ratable permanent disability had occurred.  Duke is of no help to applicant as in this case the board found that a permanent disability had occurred and applicant does not dispute the rating given her physical disabilities.

In conclusion, the proffered labor market analysis is not a proper subject for consideration under the facts of this case, as applicant's ability to compete in an open labor market has been considered in arriving at her permanent disability rating.   Applicant has not rebutted the permanent disability rating given her physical disabilities, and in fact does not dispute that rating based on those disabilities.   Accordingly, the decision of the board is affirmed.

The request to take judicial notice is granted.

FOOTNOTES

1.   Petition for review filed June 16, 1988.

CAPACCIOLI, Associate Justice.

AGLIANO, P.J., and BRAUER, J., concur.