SAN DIEGO TRANSIT CORPORATION v. WORKERS COMPENSATION APPEALS BOARD

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Court of Appeal, Fourth District, Division 1, California.

SAN DIEGO TRANSIT CORPORATION, etc., Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD etc., et al., Respondents.

Civ. 18383.

Decided: July 31, 1979

Law Offices of Arthur W. Jones and John W. Mullen, San Diego, for petitioner. Charles L. Swezey, William B. Donohoe and Dexter W. Young, San Francisco, for respondent Workers' Compensation Appeals Board. Domnitz & Prochazka and Stanley L. Levine, San Diego, for respondent Linda Renfro.

PROCEEDING to review an order by the Workers' Compensation Appeals Board awarding temporary disability benefits under Labor Code section 139.5. Order annulled.

Linda Renfro was employed as a bus driver for the San Diego Transit Corporation (San Diego Transit). She sustained injuries to her shoulder, back and right arm on three separate dates in 1976 and underwent extensive medical treatment. Temporary disability indemnity was paid through June 5, 1976. No issue is raised as to these payments of temporary disability.

In a letter to San Diego Transit dated July 29, 1976, Renfro requested a rehabilitation program be started for her since it was apparent at that time she would not be able to return to her customary job of driving a bus.

On August 2, 1976, Renfro filed applications at the Workers' Compensation Appeals Board (Board) seeking benefits including permanent disability indemnity for her injuries.

San Diego Transit enrolled her at Scripps Rehabilitation Clinic and in August 1976, she underwent an evaluation to determine her eligibility to participate in a formal rehabilitation program. After counseling, Renfro stated she wanted to be retrained for hotel and restaurant management.

At a rehabilitation conference, San Diego Transit contested the adoption of such a program for her because of her physical limitations and they argued such a program would require extensive walking, sitting, standing, stooping, etc. The matter was then referred for determination to the Rehabilitation Bureau of the Division of Industrial Accidents, State Department of Industrial Relations (Bureau). On October 25, 1976, a rehabilitation conference was held before a rehabilitation specialist and on December 3, 1976, the Bureau issued its Decision and Order approving the program requested by Renfro.

It should be noted that during this time proceedings before the Board were continuing to determine Renfro's entitlement to permanent disability and on November 18, 1976, just before the Bureau's determination the Board's judge determined she had a combined total disability of 2451/2% Which, after apportionment, amounted to 1101/4% Disability. After the Bureau's report, however, reconsideration of that award of permanent disability was granted and a final award was ultimately made on October 17, 1977, finding permanent disability of 203/4% For the right shoulder injuries, 51/2% For the low back injury and 63/4% For the left shoulder injury for total disability of 33%.

San Diego Transit appealed the Bureau's decision to the Board (see Cal.Adm.Code, Title 8, s 10,008). The Workers' Compensation Referee decided Renfro was entitled to retroactive temporary rehabilitation disability1 benefits under Labor Code section 139.5 beginning June 6, 1976, the day after temporary disability benefits ended. On January 4, 1978, she began her formal rehabilitation program and payment of temporary rehabilitation disability payments has been made by San Diego Transit to Renfro.

San Diego Transit petitioned for reconsideration of this decision asserting section 139.5 only requires temporary rehabilitation disability benefits to be paid from the time the employee begins the program and the June 6, 1976 starting date for those payments was contrary to law.

The Board granted reconsideration and amended the previous order finding the appropriate commencement date for benefits under section 139.5 was July 29, 1976, the date Renfro first manifested her desire to obtain vocational rehabilitation. The petition before us seeks review of this decision, the only issue being when temporary rehabilitation disability payments should begin under section 139.5.

The time at which rehabilitation benefits under section 139.5 begin depends upon construction of the statutory language. The section reads:

“(a) The Administrative Director shall establish within the Division of Industrial Accidents a rehabilitation unit, which shall include appropriate professional staff, and which shall have all of the following duties:

“(1) To foster, review, and approve rehabilitation plans developed by a qualified rehabilitation representative of the employer, insurance carrier, state agency, or employee.

“(2) To adopt rules and regulations which would expedite and facilitate the identification, notification, and referral of industrially injured employees to rehabilitation services.

“(3) To coordinate and enforce the implementation of rehabilitation plans.

“(b) The salaries of the personnel of the rehabilitation unit shall be fixed by the State Personnel Board.

“(c) When a qualified injured workman chooses to enroll in a rehabilitation program, he shall continue to receive temporary disability indemnity payments, plus additional living expenses necessitated by the rehabilitation program, together with all reasonable and necessary vocational training, at the expense of the employer or the insurance carrier, as the case may be.

“(d) No provision of this section nor of any rule, regulation, or rehabilitation plan developed or promulgated under this section nor any benefit provided pursuant to this section shall apply to any injured employee whose injury occurred prior to January 1, 1975. Nothing in this section shall affect any plan, benefit, or program authorized by this section as added by Chapter 1513 of the Statutes of 1965 or as amended by Chapter 83 of the Statutes of 1972.”

No binding appellate court interpretation of section 139.5, subdivision (c), has been made, but the subject was discussed in Vincent Ponce de Leon v. Glaser Bros., 42 Cal.Comp. Cases 962, at page 968, which held the period during which temporary rehabilitation payments are to be paid commences at a date to be determined on the basis of the facts of each case. We are mindful of the rule of legislative interpretation which states a “ contemporaneous interpretation of a statute by an administrative agency charged with its interpretation and administration, though not controlling, is entitled to great weight unless it is clearly erroneous (citations)” (State Compensation Ins. Fund v. WCAB (Slotten ), 88 Cal.App.3d 43, 53, 152 Cal.Rptr. 153, 160). However, we cannot accept the Board's holding.

The interpretation of any statute requires the court to ascertain the intent of the Legislature so as to effectuate the purpose of the law. In determining such intent, the court turns first to the words themselves for the answer. We are required to give effect to statutes according to the usual, ordinary import of the language employed in framing them. If possible, significance should be given to every word, phrase, sentence and part of an act in pursuance of the legislative purpose. A construction making some words surplusage is to be avoided. When used in a statute, words must be construed in context keeping in mind the nature and obvious purpose of the statute where they appear. Moreover, the various parts of a statutory enactment must be harmonized by considering the particular clause or section in the context of the statutory framework as a whole. Finally, for purposes of construing section 139.5, we observe the rule requiring liberal construction with the purpose of extending benefits to injured workers (Lab.Code, s 3202) does not apply to the construction of this section. (Moyer v. Workmen's Comp. Appeals Bd., 10 Cal.3d 222, 230-231, incl. fn. 6, 110 Cal.Rptr. 144, 514 P.2d 1224.)

As their starting point, in Ponce de Leon, supra, the Board focused on the language “shall continue to receive temporary disability indemnity payments” (s 139.5, subd. (c); italics added). It believed the Legislature “ intended a worker's disability should not be permanent and stationary until he was both vocationally and medically rehabilitated” (Vincent Ponce de Leon v. Glaser Bros., 42 Cal.Comp. Cases 962, 968) and that temporary benefits should continue until full rehabilitation is completed. “Continue” can, of course, include a meaning of complete continuity of action. Webster's defines it as follows: “. . . keep up or maintain esp. without interruption a particular condition, course, or series of actions.” It also means “to resume . . . esp. after intermission” (Webster's Third New Internat. Dict. (1968) p. 493). “ ‘(W) here a word of common usage has more than one meaning, the one which will best attain the purposes of the statute should be adopted, even though the ordinary meaning of the word is thereby enlarged or restricted . . .’ (citation).” (People ex rel. S. F. Bay etc. Com. v. Town of Emeryville, 69 Cal.2d 533, 543-544, 72 Cal.Rptr. 790, 796, 446 P.2d 790, 796.) If the word “continue” in this section means uninterrupted, a very obvious problem arises where the need for a program has not been established or the worker has not chosen the program to be offered at the time temporary medical disability terminates.

The need for early identification and initiation of vocational rehabilitation is unquestioned.2 In the ideal case, the need is identified while the injured worker is in the period covered by temporary medical disability and the vocational training is initiated before such payments end. Certainly this concept was the objective sought to be achieved when the Division of Industrial Accidents adopted Title 8, California Administrative Code, section 10006 of its Rules and Regulations dealing with vocational rehabilitation and reading:

“. . .

“Implementation of the (Rehabilitation) plan shall begin as soon as the employee is capable of participating in the program, and the medical opinion indicates that the employee's recovery will not be impeded by participation in the program. In no event shall implementation take place later than the termination of temporary total disability.”

It is apparent, however, complete continuity cannot always be achieved. Vocational rehabilitation is not always commenced before the worker was medically rehabilitated because he has not yet been found qualified or his desire to participate has not been expressed. Ponce de Leon, supra, holds a flexible approach is required in determining when a qualified injured worker would be entitled to begin receiving temporary rehabilitation disability benefits. It calls for a determination of why the “ideal situation”3 (i. e., rehabilitation benefits to begin on termination of temporary medical benefits) was not followed.

“. . . If it was because the applicant was not interested in vocational rehabilitation at the time he became medically permanent and stationary, he will have to reopen this issue and temporary disability may be reinstated if otherwise eligible from the time he manifested this interest and communicated it to the defendants. On the other hand if it was because of delays or mis-diagnosis of the need for vocational rehabilitation benefits by the defendants then no interruption of temporary disability benefits may be in order.” (Vincent Ponce de Leon v. Glaser Bros., 42 Cal.Comp. Cases 962, 968-969.)

We cannot accept that approach for it works to impose penalties not contemplated by the law. The imposition of penalties on either the applicant or the employer because of a finding the party would not reasonably stipulate to a disputed matter requiring expert examination and highly sophisticated counseling (see Cal.Adm.Code, Title 8, s 10,001) is not provided for in the statute nor is it proper to infer (No Oil, Inc. v. Occidental Petroleum Corp., 50 Cal.App.3d 8, 29, 123 Cal.Rptr. 589). The code sets forth certain penalties to provide incentives for prompt payment of benefits due and those incentives are applicable to the rehabilitation program (Lab.Code, ss 5801, 5814; see Yellow Freight Systems, Inc. v. WCAB (Bright ), 43 Cal.Comp. Cases 21).

However, no provision is made in section 139.5 or otherwise for delays caused by the parties. Parenthetically we should note also no provision is made in Ponce de Leon, supra, for delays caused by the Bureau or the Board. Rather, section 139.5 recognizes the difficulty in making the determination of entitlement and seeks to find ways to expedite the matter. The Board is given the responsibility to establish rules and regulations to expedite the determination of a proper program and institute it. An approach calling for imposition of this kind of penalties is not within the letter or the spirit of the law.

The long-acknowledged primary purpose of industrial compensation “ ‘is to insure to the injured employee and those dependent upon him adequate means of subsistence while he is unable to work and also to bring about his recovery as soon as possible in order that he may be returned to the ranks of productive labor . . .’ (Citation.)” (Moyer v. Workmen's Comp. Appeals Bd., supra, 10 Cal.3d 222, 233, 110 Cal.Rptr. 144, 151, 514 P.2d 1224, 1231.)

The payment of “normal” temporary disability payments (Lab.Code, s 4650) occurs during the “healing period” of the employee's injury (see 2 Hanna, Cal.Law of Employee Injuries and Workmen's Compensation (2d ed.) s 13.02(2), p. 13-6). The impairment of earning capacity remaining after maximum recovery is reached is compensated by permanent disability payments (Id. at s 14.01(2)(a), p. 14-5). Necessary medical costs are also compensated (Lab.Code, s 4600).

In the rehabilitation scheme contemplated by section 139.5, subdivision (c), the objective of the workers' compensation law is to return the worker to productivity in as high a job classification as his skill and abilities will admit. This is to be provided at the expense of the employer or insurance carrier (s 139.5) so it is in a sense a benefit in addition to being compensated for loss of future earnings to restore him to a higher paying job classification. Before rehabilitation is begun, subsistence needs are presumably compensated by the normal temporary and permanent disability payments. No reason appears why the rehabilitation benefits should begin immediately after temporary disability has ceased and for a period when presumably permanent disability payments will compensate him.4 The purpose of these benefits is to provide subsistence to the injured employee during the period of actual rehabilitation training without reducing benefits he is otherwise entitled to receive (see Report of the Workmen's Comp. Study Commission (Apr. 1965) ch. IX, Rehabilitation, pp. 223-224). It is during this period the employee will be unable to financially support himself because of the demands of schooling. Before the training begins, the worker to be rehabilitated is in the same position as any worker who will not be rehabilitated; during training he has some special extra needs.

It is apparent to us the Legislature did not by this language suggest the disability payments should be paid for a period when the worker is compensated for his limited working capabilities and is otherwise without impediment to his doing some work, albeit reduced. Rather, we view the legislative direction to be that temporary rehabilitation disability benefits should begin promptly when the employee is found qualified to participate in the rehabilitation program. At the time he is found qualified by the Bureau for such a program and announces his willingness to participate in it, temporary rehabilitation disability payments would provide him support and he should with all diligence promptly begin his training.

Renfro seeks to emphasize the language of section 139.5 which says, “when a . . . injured workman chooses to enroll in a rehabilitation program.” That approach ignores the key word “qualified” modifying “injured workman.” San Diego Transit on the other hand, stresses the language “to enroll in a rehabilitation program” asserting the payments should not begin until the program has been instituted. This interpretation, among other things, ignores the fact the Legislature specifically deleted language which would have used the date of initiating a program as the time when temporary payments should begin.5 We cannot accept San Diego Transit's position because of the principle that the amendment demonstrates the intent to change the preexisting law (Clements v. T. R. Bechtel Co., 43 Cal.2d 227, 232, 273 P.2d 5). The former language supported their position.

The clear language of this section tells us there must be at least two requisites before temporary disability payments may continue (resume) under this plan. There must be (1) a qualified injured workman and (2) the worker must choose to enroll in a vocational rehabilitation plan. We are satisfied when these conditions are met, the temporary disability payments should continue, without interruption if temporary medical disability has not terminated, or should be resumed and continued if those payments have been terminated.

The rights under this section do not go to every injured worker but only to a Qualified injured worker. The definition of this term was provided in California Administrative Code, Title 8, s 10,003(c),6 which reads:

“(c) ‘Qualified Injured Worker’ means an employee:

“(1) The effects of whose injury, whether or not combined with the effects of a prior injury or disability, if any, permanently preclude, or are likely to preclude, the employee from engaging in either his usual and customary occupation or the position in which he was engaged at the time of injury; and

“(2) Who can be reasonably expected to benefit from a rehabilitation program.”

To fully comprehend that definition, the further definitions found in that section should also be borne in mind.

“(e) ‘Rehabilitation Program’ means the providing of services, not limited to medical services, reasonably necessary to restore a qualified injured worker to suitable gainful employment. Such services may include, but are not limited to vocational evaluation, counseling, retraining, including on-the-job training, and job placement assistance.

“(f) ‘Suitable Gainful Employment’ means that employment or self-employment which is reasonably attainable and which offers an opportunity to restore the employee as soon as practicable and near as possible to maximum self-support, due consideration begin given to the employee's qualifications, interests and incentives, pre-injury earnings and future earning capacity, and the present and future labor market.”

Under these definitions and the scheme of the entire rehabilitation program, it cannot be said the injured worker can be reasonably expected to benefit from a rehabilitation program until some responsible person or agency has determined (1) whether this worker can reasonably be expected to benefit from the program and (2) what the program will be. We would not expect the worker to make that determination on his own since it requires a high degree of expertise in vocational rehabilitation to determine an appropriate program of retraining disabled persons (see Cal.Adm.Code, Title 8, s 10,011, for the educational qualification of a Rehabilitation Representative). Similarly, we would not think it appropriate to allow the employer independently to set up the program. Both the employer and employee should be encouraged to cooperate in coming to an acceptable program, of course, but the scheme of this program contemplates final approval and resolution of conflicts will be made by the Bureau (Cal.Adm.Code, Title 8, ss 10,006, 10,007).7

In the usual case, the scheme to develop a proper rehabilitation program does not contemplate a long period of time. In the case at bar, however, the time period was extended for what appears to us to be an inordinate period of time. This may well be because the program was new and there were special features to the case which raised obvious questions of the worker's ability to benefit from the program. We have not been shown any evidence this delay was unreasonably occasioned by either the applicant or the employer; moreover, the representative of the Board specifically negated any “foot-dragging” by either party. There is no reason to penalize the employer while issues pertaining to establishing the rehabilitation program are being resolved. Under the law, these issues must be resolved, at least in the last instance, by the Bureau.

The order by the Bureau approving a rehabilitation program designed to return this worker to gainful employment constitutes a finding the injured worker is “qualified” as defined. We would then look to the worker to see if the worker accepts the program. Under section 139.5, the worker has no obligation to proceed with the program selected. Here the Bureau made its order finding Renfro qualified for vocational rehabilitation and approving the program on December 3, 1976. Though appeals were taken from that Decision and Order, the determination it made was never subject to reconsideration by the Bureau nor stayed pending appeal to the Board. Thus, as of December 3, 1976, the Bureau's action and Renfro's approval of the program constituted the date Renfro was in fact “qualified” and entitled to receive temporary rehabilitation disability payments.

This result gives effect to the entire language of the statute and the changes enacted by the Legislature.

The Decision of the Board is annulled and the case is remanded for further proceedings consistent with the views stated.

FOOTNOTES

1.  To avoid confusion, “temporary rehabilitation disability” will be used to identify the “temporary disability” payments authorized under Labor Code section 139.5, subdivision (c). The use of the term “temporary disability” will be limited to payments of temporary medical disability authorized by other sections.

2.  The Report of the Workmen's Compensation Study Commission dated April 1965, which gave impetus to the original voluntary program provided for by the Legislature in that year and made operational January 15, 1966, outlines the need for vocational rehabilitation at an early stage in the worker's recovery and a prompt carry-through. (Report of the Workmen's Comp. Study Commission (Apr. 1965) ch. IX, Rehabilitation, pp. 217-218, 221.)

3.  In Ponce de Leon v. Glaser Bros., supra, 42 Cal.Comp. Cases 962, the Board said at page 968:“It seems to us that these alternatives may be putting the cart before the horse. The legislature spoke in terms of the applicant ‘continuing to receive’ temporary disability benefits. They were obviously contemplating the ideal situation where the worker is identified as being in need of vocational rehabilitation while still medically temporarily disabled and that immediate steps would be taken to initiate the process of vocational rehabilitation. They did not create a new type of temporary disability benefit. They spoke of those benefits continuing. It seems clear that they intended a workers' disability should not be permanent and stationary until he was both vocationally and medically rehabilitated.”

4.  The Board has held an injured employee participating in a rehabilitation program is not entitled to receive both permanent disability payments and temporary rehabilitation disability payments at the same time (Tangye v. Henry C. Beck & Co., 43 Cal.Comp. Cases 3). When the rehabilitation program is complete, presumably the payment for permanent disability would resume.

5.  When section 139.5 was originally enacted in 1965, this part of the section read:“Upon undertaking a rehabilitation program the injured workman shall continue to receive temporary disability indemnity . . . .”When Assembly Bill 760 (1973-74 Regular Session) was introduced, that language appeared in the original version but was deleted in the Assembly Ways and Means Committee where the following language was inserted:“When a qualified injured workman chooses to enroll in a rehabilitation program he shall continue to receive temporary disability indemnity payments . . ..”This is the way the present section new reads. It is an obvious altering of the original language clearly manifesting legislative intent to change the date payments would begin and negates San Diego Transit's argument.

6.  These definitions are provided under the authority of section 139.5, subdivision (a)(2), and are reasonably directed to facilitating the program as the Legislature intended.

7.  Sections 10,006 and 10,007 read as follows:“10006. Submission, Acceptance or Rejection of Plan. The employer, upon acceptance of the rehabilitation plan by the employee, shall prepare a written description of the plan for submission to the Bureau and shall send a copy thereof to the employee. The description shall include:“(a) The date, nature, extent of injury, age, occupation and average weekly earnings of the employee at the time of injury.“(b) The suitable gainful employment objective of the rehabilitation plan and estimate of earnings expected upon successful completion.“(c) The nature, extent, and duration of services to be provided during the period of rehabilitation.“(d) The dates of commencement and expected completion of rehabilitation.“(e) The amount of temporary disability indemnity payments and additional living expenses, if any, and the time and manner of such payments to be paid to the employee during rehabilitation.“(f) The employee's written acceptance of the plan, and any comments he wishes to add.“(g) The name of the rehabilitation representative who prepared the plan and a brief description of his qualifications.“In submitting the plan to the Bureau the employer shall include copies of all medical, psychological, and vocational evaluation reports related to the case under consideration.“Where the proposed plan indicates areas of disagreement between the employer and employee the Bureau will attempt to resolve the differences, and upon obtaining agreement, order the plan approved.“Upon receipt of a proposed plan acceptable to the employee the Bureau, after review, may order the plan“(1) Approved, P (2) Disapproved, P (3) Modified.“Implementation of the plan shall begin as soon as the employee is capable of participating in the program, and medical opinion indicates that the employee's recovery will not be impeded by participation in the program. In no event shall implementation take place later than the termination of temporary total disability. The program shall be commenced upon Bureau approval or the date specified in the plan whichever occurs last.“10007. Responsibilities of the Bureau. All matters regarding rehabilitation plans and programs shall be initially submitted to the Bureau except those arising in cases before a referee of the Workers' Compensation Appeals Board where injury is in issue, or where the question of need for rehabilitation first arises during the course of a proceeding on other issues.“Where the question of need for rehabilitation first arises in a proceeding before a referee of the Appeals Board, this question shall be referred by the referee to the Bureau for its recommendation.“Where a rehabilitation plan is not offered by the employer, or where an employer-offered plan is not accepted by the employee, the Bureau, either on its own motion or upon the request of either the employer or employee, shall make a determination of the practicability, need for, and kind of services necessary to restore the employee to suitable gainful employment.“In resolving disputes the Bureau shall utilize conciliation and mediation insofar as possible.“Necessary and reasonable medical examinations and vocational evaluation at the expense of the employer may be ordered by the Bureau.“After allowing the parties opportunity to present supporting information, a written determination shall be prepared by the Bureau and served on the parties.“The employee may be represented by a person of his choice in matters before the Bureau.“If the employee does not choose to enroll in a rehabilitation program, nothing in these Rules shall require him to do so.”

COLOGNE, Associate Justice.

GERALD BROWN, P. J., and STANIFORTH, J., concur.