MOYER v. WORKMEN COMPENSATION APPEALS BOARD

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Court of Appeal, First District, Division 4, California.

James M. MOYER, Petitioner, v. WORKMEN'S COMPENSATION APPEALS BOARD of the State of California, and Southern California Edison Company, permissibly self-insured, Respondents.

Civ. 31577.

Decided: December 27, 1972

Brundage & Roseman by Steven Roseman, Los Angeles, for petitioner. Grancell, Kegel & Tobin by Sherman Grancell, Stuart J. Liebman, Los Angeles, for respondent, Southern Cal. Edison Co., self-insured.

Petition for review and annulment of a decision of the Workmen's Compensation Appeals Board.

Question Presented

Does section 139.5 of the Labor Code, dealing with rehabilitation of an injured workman, require notice of the possible results of its application? No.

Record

Petitioner was employed by the Southern California Edison Company as a telephone pole lineman on February 27, 1968, when he sustained an admitted injury to his back. Petitioner received surgery for this injury and was disabled until August 1, 1968. He was eventually employed by Southern California Edison Company as a meter reader. Petitioner was told by his doctor that he could not return to his former job because of the heavy lifting involved.

Following a second back operation in April of 1969, petitioner returned as a meter reader. In October of 1969, Mr. Criets, the supervisor of the Lancaster business office of Edison, telephoned petitioner and advised him that the company desired to give him tests concerning rehabilitation. Petitioner took a battery of tests and also had some personal interviews. He went back to work as a meter reader until February 1, 1970, when he transferred to Long Beach. This transfer included an 8-day program at the Honeywell Installation School, as he was going to work on a Honeywell computer. Then, after the 8-day training period, petitioner was placed at work in the computer programming department of Edison with pay that was $266 less per month than he had received as a lineman.

During petitioner's first 90 days of computer employment, he lived in Lancaster spending the week days in Long Beach and the weekends at home. He lived in motels in Long Beach and ate his meals out, both of which were paid by Edison Company as well as his transportation mileage. Edison also paid his moving expenses to Long Beach and he was given a three or fourcent an hour raise over his meter reading salary.

Petitioner testified that the first time he knew that he was possibly to be rated as a computer programmer, rather than a lineman, was approximately three weeks before the workmen's compensation hearing on June 21, 1971. He said he had no literature from Edison concerning a rehabilitation program nor was he ever told prior to a hearing in Van Nuys that he would be rated as a computer programmer for his back injury, rather than as a lineman. Petitioner further alleges that he did not receive temporary disability during his early days in the computer programming department. Neither did he receive permanent disability payments during the early days of the work in this department. A summary of the evidence of the hearing of June 21, 1971, shows that petitioner received temporary disability totaling $4,810. Temporary disability payments were made during certain periods beginning March 1, 1968, and ending October 16, 1969. Petitioner also received advances for permanent disability in the amount of $2,100.

Petitioner is seeking to be rated as a lineman, 26 years old (the age he attained as of the date of the injury) rather than as a computer programmer. Based upon the occupation of lineman his permanent disability rating after apportionment was 20 percent. That of a computer programmer at age 29 is 9 1/4 percent for the same injury.

Section 139.5 of the Labor Code does not require notice of the effect of its application. That section in pertinent part provides for the initiation of a rehabilitation plan for an injured workman by either the employer or insurance carrier. ‘Any plan initiated by an employer or insurance carrier shall be presumed to be necessary and meritorious.

‘Injured workmen may agree with their employers or the insurance carriers for insured employers upon rehabilitation programs without submission of such programs for approval.

‘. . ..

‘The initiation of a rehabilitation program or the acceptance thereof shall be voluntary and not be compulsory on the employer, the insurance carrier or the injured workman.” (Emphasis added.)

Petitioner after his injury applied for adjudication with the Workmen's Compensation Appeals Board, which found that he had a permanent disability of 20 percent as an injured lineman. Respondent Edison filed a petition for reconsideration, contending that the rating was excessive because petitioner had joined with it in a rehabilitation plan in which he was trained as a program computer. The referee filed a report and recommendation in which he held that because petitioner was not told at the time he accepted rehabilitation training that it might result in a permanent disability rating based on his new occupation instead of on his old occupation, his participation in the plan was not voluntary and recommended the prior permanent disability rating. However, respondent board granted reconsideration and decision in which it held that petitioner's injury caused permanent partial disability, which after adjustment for age and occupation at the time the permanent disability was determined, that of an assistant computer programmer at age 29, was 9 1/4 percent. Petitioner seeks review of that determination.

There appears to be no case considering whether Labor Code Section 139.5 requires that an injured workman be apprised of the result of his participation in a rehabilitation program. However, several of the Workmen's Compensation Appeals Board's opinions and decisions after reconsideration have pointed out that section 139.5 does not expressly require such notice and have held that such notice need not be given.1

At the time of petitioner's injury the Labor Code provided for alternative methods of compensating injured employees for permanent disability: (1) a cash indemnity adjusted for age and occupation at the time of the injury, or (2) training in a new occupation plus a cash indemnity based upon the new occupation (the method attempted to be employed here).

As stated in Larson, The Law of Workmen's Compensation (vol. 2, § 61.20), ‘rehabilitation, where possible, is the most satisfactory disposition of industrial injury cases from the point of view of the insurer, employer and public as well as of the claimant.’

In Ingram v. So. Calif. Edison Co., POM 10793, the board said: ‘We observe in passing that there is no evidence of record establishing applicant either knew or was advised of the fact that a successful rehabilitation program would reduce his permanent disability rating under Labor Code Section 139.5. However, the operation of Section 139.5 is not expressly contingent on notice. Further, we neither discern nor have been cited to any legal or practical reason why such notice to an employee should be a condition precedent to rating an employee under Section 139.5 in accordance with his successful rehabilitation. On the contrary any emphasis upon the rating function at the beginning of a rehabilitation program might well endanger the success of the program. Accordingly, we hold there is no requirement of notice to the employee of the effect of rehabilitation upon his ultimate permanent disability rating.’ The only difference between the facts presented in the Ingram case and the instant case is that, in Ingram, the board specifically stated that applicant was paid $52.50 per week for advances against permanent disability indemnity as required by the code section. However, in the fact situation here, petitioner did receive $2,100 in advances for permanent disability although it is not stated if he received these payments in weekly installments of $52.50. In Lemon v. E. H. Haskell Company, SF 226–456, applicant argued that he did not fully understand the consequences of his rehabilitation program. Where the parties are fully aware that a rehabilitation program is being undertaken, as in this petition, ‘the consequences of their conduct are defined as a matter of law under that Labor Code Section [§ 139.5]. The parties are accordingly, presumed to understand the legal consequences of their acts.’ (Id. at p. 5.)

Of significance is the fact that section 139.5, providing for the rehabilitation program, specifically states, ‘The determination of the employee's permanent disability percentage in such case [where the workman undergoes the rehabilitation program] shall be with reference to his age and occupation at the time that such determination is then made.’ (Emphasis added.)

Petitioner argues that he has been denied due process by allowing his permanent disability to be reduced by $2,257.50. However, respondent Edison set forth that the cost of the rehabilitation program amounted to more than the reduction in permanent disability, and that petitioner is not only receiving compensation for his permanent disability, but has now also been retrained in a new career and is now able to seek a job consistent with his newly learned abilities. Petitioner cites article XX, section 21, of the California State Constitution, to support his contention. This section indicates that the aim of the workmen's compensation program in this state is to create a system of workmen's compensation which ‘includes adequate provisions for the comfort, health and safety and general welfare of any and all workmen and those dependent upon them for support to the extent of relieving from the consequences of any injury or death incurred or sustained by workmen in the course of their employment, irrespective of the fault of any party.’ The enactment of Labor Code section 139.5 would appear to be in furtherance of the aims and objectives stated in this section of the California State Constitution. A reasonable substitution of rights such as this meets the requirements of substantive due process and equal protection. (Western Ind. Co. v. Pillsbury (1915) 2 I.A.C. 1026.)

Where a provision of the workmen's compensation law is susceptible of an interpretation either beneficial or detrimental to an injured employee, it must be construed favorably to him. (Labor Code, § 3202; Granado v. Workmen's Comp. App. Bd. (1968) 69 Cal.2d 399, 404, 79 Cal.Rptr. 678, 445 P.2d 294.) The interpretation we are placing on section 139.5 does just that, and is in line with what obviously was the intention of the Legislature in adopting that section without including a requirement that the injured workman's attention be called to the provision that the determination of his permanent disability percentage shall be with reference to his age and occupation at the time of the completion of his rehabilitation. It cannot be denied that by his rehabilitation and thus in a position to earn larger wages than in the position prior to his rehabilitation he is infinitely better off than merely to receive the cash difference between his permanent disability percentage based on his situation prior to rehabilitation and that based on his situation subsequent to rehabilitation. This may be a somewhat paternalistic viewpoint but the philosophy of the entire Workmen's Compensation Act is intentionally paternalistic.

Inasmuch as the statute does not require that notice of all the consequences of the workman's joining in the rehabilitation program be made and the statute points out that the determination of the employee's permanent disability is to be determined at the end of the rehabilitation program, it would seem that there is a duty upon the part of the workman to find out what the consequences of his participating in the plan are. During the taking of tests and later during the 8-day training program, petitioner had ample opportunity to inquire about all that would follow his participation in the plan.

As shown, the statute requires that the initiation or acceptance of the rehabilitation program shall be voluntary on the part of those connected with it, the employer, the insurance carrier and the employee. In its context in the statute and the philosophy of the Workmen's Compensation Act, the word ‘voluntary’ as applied to the injured workman, means that he cannot be compelled to participate in a rehabilitation program which trains him for a position or type of work which he feels he would not enjoy. It might be that an injured employee would prefer to leave his employment if, because of his injury, he cannot continue in the line of work in which he was engaged rather than to be trained in the type of work offered by the rehabilitation program. In other words, the proposed line of work must be satisfactory to him or he cannot be required to join in the program. The very fact that the Legislature, in providing that the employee's permanent disability percentage be determined as of his age and occupation after rehabilitation, saw fit not to require notice to be given the employee of this fact, indicates that the employee's ‘voluntariness' was to be related to his agreement to be trained in the new occupation.

When offered the plan petitioner did not have to accept it. He could have stood on his right to receive the permanent disability rating as a lineman. By proceeding with the test and the retraining, petitioner waived any objections he might have had to the plan and to receiving the lineman's disability rating.

Petitioner now contends that he did not receive rehabilitation but merely retraining. As stated by respondent board, rehabilitation as contemplated by section 139.5 can be of two kinds: (1) physical rehabilitation where the workman's injuries are such that he is not employable without rehabilitation of his physical situation, and (2) job rehabilitation where he is retrained so that he is eligible for a better job than he can obtain without such retraining. Here, petitioner was retrained so that he is qualified for a computer operator's job, one providing beter pay than that of meter reader for which he seemed only qualified. Moreover, on the completion of his retraining he made no claim to his employer that he thought he should receive more training or ‘rehabilitation.’

As said by respondent board in its order granting reconsideration and decision, ‘The later alternative [training the injured employee plus a cash indemnity which might, but not necessarily would be somewhat less than the other cash indemnity] was added in response to the obvious fact that a cash indemnity more often than not fails to make the injured employee whole and that training and employment in a new occupation is more valuable than inadequate cash payments which are soon dissipated.’

The decision of the Workmen's Compensation Appeals Board is affirmed.

I dissent. I agree that Labor Code section 139.5 does not affirmatively require that notice be given of the possible results of its application, and that the failure to give such notice in this case did not operate to deny petitioner due process of law. In light of such failure, however, I do not agree with the result reached by respondent board and by the majority of this court.

The uncontradicted record shows that petitioner's injuries entitled him, as shown by the board's adjudication in the first instance, to a post-apportionment permanent disability rating of 20%, based upon his age and his occupation as a telephone pole lineman as of 1968. The effect of the board's decision after reconsideration if to strip him of the 20% rating based on those factors and to award him a 9 1/4% rating, based upon his later age and his new status as a computer programmer. This occurred because he had participated in a computer training program which was sponsored by respondent employer and which constituted a ‘rehabilitation plan’ or ‘rehabilitation program’ as contemplated in Labor Code section 139.5.* The evidence is also clear that, when petitioner undertook the rehabilitation program, he was not actually informed, and did not in fact know, that it might produce this consequence.

Section 139.5 explicitly requires that an injured workman's ‘acceptance’ of a rehabilitation program shall be ‘voluntary’ on his part. (See fn. [last sentence], ante.) It appears to me that the result to be reached here depends upon the definition of ‘voluntary.’ One definition is ‘acting of oneself: not constrained, impelled or influenced by another.’ (Webster's Third New Int.Dict. (1967) p. 2564 [‘voluntary’].) Petitioner's acceptance of the computer training program was ‘voluntary,’ in this sense, because it was not coerced. Quite another result may emerge, however, under an alternative definition of ‘voluntary’ as ‘proceeding from the will: produced in or by an act of choice . . . performed, made or given of one's own free will . . .’ (Ibid. [Emphasis added.]) The term ‘implies freedom from any compulsion which could restrain one's choice’; one of its synonyms is the word ‘deliberate,’ which, as imported by ‘voluntary,’ ‘carries the idea of full knowledge or full consciousness of the nature of an intended action . . .’ (Ibid. [Emphasis added.]) The primary definition of ‘deliberate,’ employed as an adjective, is ‘characterized by or resulting from unhurried, careful, thorough, and cool calculation and consideration of effects and consequences.’ (Id., at p. 596. [Emphasis added.])

As the majority points out, a provision of the workmen's compensation law must be construed favorably to an injured employee if it is susceptible of an interpretation which is either beneficial or detrimental to him. (Lab.Code, § 3202; Granado v. Workmen's Comp. App. Bd. (1968) 69 Cal.2d 399, 404, 71 Cal.Rptr. 678, 445 P.2d 294; Amborn v. Workmen's Compensation Appeals Bd. (1971) 19 Cal.App.3d 953, 959, 97 Cal.Rptr. 466.) It is for this very reason, in the present case, that I would construe the word ‘voluntary,’ as used in section 139.5, in the second sense mentioned above. When petitioner was invited to participate in the computer training program, without knowledge of its prospective effect on the permanent disability rating to which he was already entitled, he could not exercise a ‘choice’ in the matter as an act of ‘free will,’ nor did he have ‘full knowledge . . . of the nature of . . . [the] . . . intended action,’ because he was not aware of the real alternatives which were in prospect; he could not engage in ‘consideration of [its] effects and consequences' because he did not know what they were. I conclude that the board's decision after reconsideration should not stand because petitioner's ‘acceptance’ of the rehabilitation program was not ‘voluntary’ within the meaning of the last sentence of section 139.5.

I recognize that section 139.5 does not require an employer or an insurance carrier to apprise an injured workman of the effect his ‘acceptance’ of a rehabilitation program might have on a current permanent disability rating; and, indeed, that a failure to disclose would be entirely insignificant in a case where the workman did not regard himself as aggrieved by such effect. I can also accept the view that a policy of full disclosure in all cases might endanger the success of rehabilitation programs. These considerations do not indicate to me, however, that nondisclosure should in effect enable an employer or insurance carrier to force upon the workman a result which he did not anticipate and does not want. The question here is not whether disclosure is required or desirable; it is whether the injured workman alone should bear the risk of adversity where no disclosure is made. In my view, this risk should rest with the person or persons (employer, insurer, or both) who elect not to disclose; the broad public policies underlying the entire workmen's compensation law should not permit the injured workman to be penalized by his ignorance where such result might have been avoided. I am not persuaded to the contrary by the decisions cited in the majority opinion on the point of ‘notice to an employee’ under section 139.5. (Ingram v. So. Calif. Edison Co., POM 10793; Lemon v. Haskell Co., S.F. 226–456.) Both are decisions of respondent board or its equivalent, and neither has the stature of a controlling judicial decision.

The majority meets the fact of petitioner's ignorance by generally charging an injured workman with ‘the duty . . . to find out what the consequences of his participating in the [rehabilitation] plan are,’ and by observing that petitioner had ‘ample opportunity’ to make such inquiry in the present case. In my opinion, it is unrealistic to assume that the average injured workman (a designation which presumably includes petitioner) would apprehend the necessity or desirability of making appropriate inquiries, that he would know how to go about it, or that on his own initiative he could produce answers which would adequately inform him; and, to this extent, the majority's holding places a burden upon the injured employee which the workmen's compensation law neither contemplates nor countenances. To charge him with a ‘duty’ of inquiry, moreover, is tantamount (1) to imposing upon him the ‘duty’ to exercise ordinary care for his own interest, and (2) to inviting application of the principle of contributory negligence where there is evidence that he might have failed to discharge such ‘duty.’ These concepts have no place in workmen's compensation proceedings as between an injured employee and the employer or insurer, and the application of either or both could raise questions of fact, in another case, which respondent board and its referees are not equipped to resolve in the discharge of their conventional functions.

The majority does not meet my objections to the decision under review by observing that petitioner is ‘infinitely better off’ as a result of the rehabilitation program. Whether this is a ‘somewhat paternalistic viewpoint’ (and I think it is), or whether it is warranted because the ‘entire Workmen's Compensation Act is intentionally paternalistic’ (which I doubt), are not relevant issues. In my opinion, the real point is that petitioner should not incur the consequences of a section 139.5 program of which his ‘acceptance’ was not ‘voluntary’ as the statute requires. I would so hold whether he is ‘better off,’ or not, in the judgment of someone other than himself.

I would annul the decision after reconsideration and remand the cause to respondent board with appropriate directions to reinstate petitioner's original permanent disability rating.

FOOTNOTES

FOOTNOTE.  

1.  Among others, Ingram v. So. Calif. Edison Co., POM 10793; Lemon v. Haskell Co., SF 226–456.

FOOTNOTE.  The full text of Labor Code section 139.5 reads as follows:‘Tne administrative director may establish within the medical bureau of the Division of Industrial Accidents a rehabilitation unit, including an appropriate professional staff, to foster, review, and approve rehabilitation plans, and to expedite and facilitate the carrying out of rehabilitation plans. The salaries of the personnel of the rehabilitation unit shall be fixed by the State Personnel Board.‘The initiation of a rehabilitation plan shall be by the employer or insurance carrier. If the employer, the insurance carrier, or the injured workman disagree as to the establishment of a rehabilitation plan either may consult with the rehabilitation unit or may seek an advisory determination by the rehabilitation unit which may make an advisory determination that such services are necessary or advisable.‘Any plan initiated by an employer or insurance carrier shall be presumed to be necessary and meritorious.‘Injured workmen may agree with their employers or the insurance carriers for insured employers upon rehabilitation programs without submission of such programs for approval.‘Where an employer or insurance carrier fails or refuses to initiate a rehabilitation plan for an injured workman, or fails or refuses to participate in a plan previously initiated and agreed to by such employer or insurance carrier, such failure and refusal shall be deemed to be final.‘Where a rehabilitation plan has been found to be necessary and meritorious, and the injured workman thereafter refuses to undertake and participate in such plan found to be reasonable and meritorious, in absence of his acceptance thereof such refusal shall be deemed to be final.‘Upon undertaking a rehabilitation program the injured workman shall continue to receive temporary disability indemnity and in addition shall receive the sum of fifty-two dollars and fifty cents ($52.50) per week as an advance on permanent disability indemnity. Such advance is limited to 26 weeks, but this shall not limit the right of the employer or insurance carrier to continue the rehabilitation plan and advances for a longer period. Such advance shall be credited in full against the permanent disability indemnity determined to be due to such employee for his permanent disability rating when established, up to the extent of the permanent disability indemnity so found and determined. The determination of the employee's permanent disability percentage in such case shall be with reference to his age and occupation at the time that such determination is then made.‘The initiation of a rehabilitation program or the acceptance thereof shall be voluntary and not be compulsory on the employer, the insurance carrier or the injured workman.’

BRAY, Associate Justice.* FN* Retired Presiding Justice of the Court of Appeal, sitting under assignment by the Chairman of the Judicial Council.

DeVINE, P. J., concurs.

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