LeBOEUF v. WORKERS COMPENSATION APPEALS BOARD

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

Richard Gene LeBOEUF, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD etc., et al., Respondents.

Civ. 54025.

Decided: June 24, 1982

Neyhart, Anderson, Nussbaum, Reilly & Freitas, Inc., Frank Reilly, San Francisco, for petitioner. Sedgwick, Detert, Moran & Arnold, C. Gordon Taylor, San Francisco, for respondent A. C. Transit. Dexter W. Young, Staff Counsel and Assistant Secretary, Workers' Comp. Appeals Bd., San Francisco, for WCAB.

Richard Gene LeBoeuf seeks review of a decision of the Workers' Compensation Appeals Board not to reopen his case to modify his permanent disability rating of 60 percent.

Petitioner, who had been a bus driver for respondent Alameda-Contra Costa Transit District (AC Transit), was rated for permanent disability of 60 percent by the rating specialist on the basis of:  “Anxiety neurosis, manifested by inability to work as a motor coach operator, to be under close and frequent supervision, to work in a confined setting, or to be under a sense of obligation to do a particular thing in a particular way on a particular schedule.”

Petitioner argued that disability was total basing this argument in part upon evidence received at the hearing from M. Michael Dansker, Ph.D., a rehabilitation counselor.   Dansker testified that no paid employment would be available to LeBoeuf.   The workers' compensation judge held that the petitioner's disability was equivalent to a moderate degree of mental deterioration and an award based upon a 60 percent disability issued on March 22, 1979.   Reconsideration was denied on May 9, 1979.

Prior to the issuance of the award, the Rehabilitation Bureau had been notified of petitioner's work status but noting the dispute as to the extent of disability, the bureau deferred decision as to petitioner's need for vocational rehabilitation “until clarification has been made by the WCAB as to the extent of disability.”

The bureau, relying on the opinion of Dr. Dansker, decided in January of 1980, some eight months after the board's denial of reconsideration, that petitioner was not qualified for rehabilitation services under subdivision (c)(2) of Rehabilitation Rule 10003, which defines a qualified injured worker as one “who can reasonably be expected to return to suitable gainful employment through the provision of vocational rehabilitation service.”   In a Decision and Order dated January 28, 1980, the bureau explained:  “However, given the information quoted above prepared by Dr. Dansker, it is the Bureau's impression that Richard LeBoeuf may be unable to be returned to suitable gainful employment via the assistance of vocational rehabilitation services.   In that regard then, he would not be a Qualified Injured Worker referrable to Article 12, Section 10003(c)(2).   It is the Bureau's intention to so order within twenty days, unless substantiated objection is received within that time.”

No appeal was filed from this decision.

On or about January 16, 1981, petitioner filed a “Petition to Reopen Under Labor Code [section] 5803 1 on the basis of a “changed physical condition causing new and further disability.”   In support of his claim the petition alleges:  “That since the date of last evidence, there now constitutes good cause to reopen this claim since the Rehabilitation Bureau has determined, by its decision of January 28, 1980, that the applicant cannot be expected to return to suitable gainful employment through the provision of vocational rehabilitation services;  that in fact if the applicant cannot return to his former job and if he cannot return to suitable gainful employment through the provision of vocational rehabilitation, then he should be found to be permanently and totally disabled under Labor Code [section] 4660.”

 A petition to reopen is not the same as a petition for reconsideration.   As stated in California Workmen's Compensation Practice (Cont.Ed.Bar 1973) Reconsideration, § 10.2, page 322:  “For ‘good cause’ the Board has power to reopen a case and to rescind, alter, or amend the original decision.  Lab C § 5803․  This power to act on a petition to reopen is not limited by a party's right to petition for reconsideration.  Lab C § 5903.   Nor is it a substitute for reconsideration.   Reopening requires a finding, after notice and hearing, of ‘good cause.’   Reconsideration may be granted without this requirement.  United States Pipe & Foundry Co. v. IAC (Hinojoza) (1962) 201 Cal.App.2d 545 [20 Cal.Rptr. 395] ․

“The petition to reopen is usually assigned to the referee who made the original decision.   The referee may deny reopening without a hearing but he is more likely to hold a hearing and then either deny reopening or reopen and alter or amend the original decision.   A petition for reconsideration may be filed from the decision on the petition to reopen.”

In the present case, the workers' compensation judge, following a hearing, denied the petition to reopen and petitioner filed for reconsideration.   In his report and recommendation on reconsideration, the judge explained that the Rehabilitation Bureau had relied upon medical testimony that had been considered by the Appeals Board in its decision.   As stated by the judge the petition raised two questions of law.   First, as to the effect to be given the decision and order of the Rehabilitation Bureau, when such decision and order can be said to be inconsistent with a determination made by the board and, second, whether a decision and order of the bureau contains prima facie good cause to reopen.

First, as to the effect of a decision and order, the workers' compensation judge stated:  “I note that Labor Code Section 139.5 specifies under subsections (1), (2) and (3) certain duties which are to be exercised by the rehabilitation unit which said section directs that the administrative director shall establish.   There is no other grant of jurisdiction or authority to said unit.   I do not read said section, therefore, as conferring upon the present rehabilitation bureau judicial authority, and even if it were intended that judicial authority of a limited degree were to be exercised by the rehabilitation bureau, that a determination by said bureau should take precedence over a judicial determination by the Worker's Compensation Appeals Board or a Referee thereof.”

 The judge's statement is correct.   The Rehabilitation Bureau is a unit of the Division of Industrial Accidents established by the Administrative Director, pursuant to Labor Code section 139.5.   It does not exercise judicial authority.   Its decisions and orders are those of an expert in its field and as such are entitled to serious consideration, but the judge is not bound by that evidence and must base his decision on all of the evidence presented at the hearing.   In considering the weight to be given such evidence the judge should consider the reasons upon which it is based.

 The second question of law raised is whether a decision and order of the bureau contains prima facie “good cause” to reopen.   The term good cause is not defined in the Labor Code.   What constitutes good cause depends largely on the circumstances of each case.   The term is relative.   The board, however, can amend its finding and award where there exists some circumstances unknown to the board at the time it made the original award which rendered such original award unequitable.  (See Pullman Co. v. Industrial Acc. Com. (1946) 28 Cal.2d 379, 388, 170 P.2d 10.)   There is nothing in the Labor Code which gives the bureau's decision and order any special evidentiary significance other than what we have stated above that the decisions and orders are those of an expert in the field and as such are entitled to serious consideration.   Thus a decision and order of the bureau does not in itself constitute prima facie good cause to reopen.   Whether good cause exists depends on the circumstances of the individual case.

The board after a hearing determined that there was not good cause to reopen.   As stated by the board:  “The difficulty with petitioner's contention is that the last paragraph of the Rehabilitation Bureau's decision establishes that the basis for the denial of rehabilitation benefits is the testimony and letter of Dr. Dansker.   This testimony and letter however were considered by the workers' compensation judge and were rejected.   In other words then, the Rehabilitation Bureau's decision was not based on any evidence that was not available to the workers' compensation judge.   There was merely a different interpretation of the same evidence.”

  The board's determination of what constitutes good cause is not conclusive but is entitled to great weight.  (Aliano v. Workers' Comp. Appeals Bd. (1979) 100 Cal.App.3d 341, 161 Cal.Rptr. 190.)   In the present case, the board's decision not to reopen is amply supported by the evidence.

The order denying reconsideration is affirmed.

FOOTNOTES

1.   “Section 5803.   Continuing jurisdiction“The appeals board has continuing jurisdiction over all its orders, decisions, and awards made and entered under the provisions of this division.   At any time, upon notice and after an opportunity to be heard is given to the parties in interest, the appeals board may rescind, alter, or amend any such order, decision, or award, good cause appearing therefor.“Such power includes the right to review, grant or regrant, diminish, increase or terminate, within the limits prescribed by this division, any compensation awarded, upon the grounds that the disability of the person in whose favor such award was made has either recurred, increased, diminished, or terminated.”

 CALDECOTT, Presiding Justice.

RATTIGAN and CHRISTIAN, JJ., concur.