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Court of Appeal, Fourth District, Division 2, California.

Albert PENA, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD; Prestige Stations, Inc.; Cigna Insurance Company, Respondents.

No. E017977.

Decided: September 11, 1996

Joseph C. Carabino, Newhall, for Petitioner. No appearance for respondent Workers' Compensation Appeals Board. Dofflemyre & Dietz and William K. Dietz, San Diego, for Respondents.


Petitioner Albert Pena, applicant in the proceedings below (hereinafter “Applicant”) seeks an order annulling a decision of the Workers' Compensation Appeals Board denying him retroactive vocational rehabilitation benefits. We agree that Applicant is entitled to such an award, and we will remand for further proceedings consistent with this opinion.


The facts are uncomplicated and not in dispute. Applicant was employed as a clerk for a “mini-mart” operated by employer Prestige Stations, Inc. (“Employer.”) He suffered injury during an altercation, and Employer stipulated that his injury arose during the course of, and within the scope of, his employment. (See Lab. Code, § 3600, subd. (a).) Applicant claimed injury to his back, neck, and right leg. In due course an award was returned by the Workers' Compensation Judge which fixed Applicant's level of permanent disability at 6.2% and directed Employer to make the appropriate payments. An award of temporary disability payments covering the period from December 29, 1992 to July 1, 1993, was also made. These findings and awards have not been challenged by either party.

However, Applicant had filed an application for rehabilitation benefits with the Rehabilitation Unit. This application was supported by a medical report from Dr. Joseph Bailey.1 In the report, Dr. Bailey noted tenderness in the low back area surrounding a “right low back fatty hernia.” He also observed and recorded that “[h]yperextending his neck causes low back pain as does recovery from forward flexion.” Dr. Bailey attributed the hernia to the work incident and concluded that Applicant could no longer perform his job as a clerk, which required a significant amount of stooping and lifting.

Apparently, at least according to the decision by the Workers' Compensation Judge, Employer did not file a written response. The Workers' Compensation Judge also found that Applicant did not file available additional medical reports, and that Employer similarly failed to file existing additional reports.

The Rehabilitation Unit, relying on Dr. Bailey's report, found that Applicant was a “Qualified Injured Worker” (“QIW”) and ordered that Employer provide services and pay benefits in accordance with the statutes.2

Employer duly filed an appeal from this decision. (Lab. Code, § 4635, subd. (d).) This had the effect of bringing the matter before the Workers' Compensation Judge for determination in conjunction with the other disputed issues. After reviewing the evidence, which by then included several other medical reports, the Workers' Compensation Judge concluded that Applicant was able to return to his usual occupation and therefore was not a QIW and not entitled to rehabilitation services. Applicant does not contest this finding.

What Applicant does contest is the decision of the Workers' Compensation Judge, adopted by the Workers' Compensation Appeals Board, denying him retroactive benefits spanning the period between his application and the eventual decision that he was not a QIW. This is the question before us.


At first blush it might appear anomalous to award a worker the cash portion of rehabilitation benefits if it has been finally determined that he is not a QIW. However, the law supports such an award. In Industrial Indemnity Co. v. Workers' Comp. Appeals Bd. (1985) 165 Cal.App.3d 633, 640, the court considered the statutory scheme and concluded that the prevailing policy was that of encouraging all workers who could possibly benefit to seek and participate in rehabilitation services. Accordingly, the court held that the entitlement to benefits both accrued and vested when the employee made a prima facie showing that he was a QIW, and that benefits should be paid with reference to the “evaluation” period.

The holding of Industrial Indemnity Co. was cited with approval by the Supreme Court in General Foundry Service v. Workers' Comp. Appeals Bd. (1986) 42 Cal.3d 331, 340, footnote 6, and the viability of the case is not seriously challenged here by Employer. However, Employer argues that the Workers' Compensation Judge properly found that Applicant had not made a prima facie case. We disagree.

First, it is argued that Dr. Bailey's report is inadequate as a matter of law because he did not take X-rays or conduct “objective” range of motion examinations. We accept the principle that, for the purposes of an appellate court's “substantial evidence” review, a medical opinion which is based on false assumptions or an inaccurate or incomplete history may not satisfy that standard. (See, e.g., Kyles v. Workers' Comp. Appeals Bd. (1987) 195 Cal.App.3d 614, 620; Guerra v. Workers' Comp. Appeals Bd. (1985) 168 Cal.App.3d 195, 199.) Assuming, arguendo, that the same rule applies to a report submitted in connection with a request for rehabilitation benefits, Dr. Bailey's report is not subject to such an attack.

We note to begin with that it is doubtful that the Workers' Compensation Judge was qualified to opine that Dr. Bailey's diagnoses could not have been valid in the absence of certain tests. Furthermore, the report reflects that Dr. Bailey did perform “range of motion” tests on Applicant's neck and back, and it includes specific degree results. Whether or not these were “normal” is not stated (and we doubt that the Workers' Compensation Judge could evaluate them) but even if they were, this is not dispositive. Dr. Bailey noted subjective signs of pain on hyperextension of Applicant's neck and recovery from flexion. He also found what he believed to be a fatty hernia in the lower back. Evidently Dr. Bailey found Applicant to be credible in his complaints and he observed a structural abnormality.

On its face, the report is perfectly adequate. Employer's reliance on Blunt v. Southern California Permanente Medical Group (1984) 49 Cal.Comp.Cases 678 is misplaced. In that case, the Board held that a doctor's report did not support a finding of QIW status not because it was based on an inaccurate history or false representations, but because the doctor simply did not state that the worker was disabled from performing his usual job. Nor is it fatal that other doctors believed that what Dr. Bailey diagnosed as a pathological fatty hernia was an essentially normal condition; that there is a medical difference of opinion does not automatically make either of the opinions worthless.

Perhaps recognizing this, the Workers' Compensation Judge then undertook a remarkable analysis of the term “prima facie” as used in Industrial Indemnity Co. In his original opinion on decision, he states “Prima facia [[[[sic]--defined as on the face it. [Sic.] On the face of it Dr. Baily's [sic] report-maybe-primia facia [sic].” However, having acknowledged this, he went on to conclude both there and in his report on reconsideration that the report was actually not prima facie evidence of Applicant's QIW status because it could have been rebutted by existing reports which were not submitted.

In our view this misconceives the notion of “prima facie.” As the Workers' Compensation Judge correctly stated, a prima facie case is shown when a party presents evidence which, if unrebutted and credited, would justify a finding in his favor. (Malcolm v. Superior Court (1981) 29 Cal.3d 518, 528 at fn. 6.) But if the evidence is later rebutted, or is not credited by the trier of fact, that does not deprive it of its original character. Although we have been unable to find any case dealing with the exact point, we think it obvious that a determination of whether or not a showing meets a required “prima facie” standard is made without reference to contrary evidence and without evaluating credibility.

Malcolm v. Superior Court, supra, is instructive. That case involved the proper burden to be placed on a plaintiff when faced with a defendant's motion to expunge a notice of lis pendens. The statute allowed the notice to stand if it was filed in good faith and for a proper purpose--that is, if it was filed in an action of a type which could legally support it. (E.g. an action for specific performance.) The Supreme Court held that a plaintiff could meet this burden by a prima facie showing, and that--except as it might bear on bad faith--the fact that defendant might provide contrary evidence could not be considered by the trial court. (29 Cal.3d at pp. 528-529.) Similarly, in construing Code of Civil Procedure section 425.13, which requires a plaintiff to show a “substantial probability” of success before being allowed to plead a claim for punitive damages against a health care professional, the Supreme Court concluded that if plaintiff showed that the claim was “substantiated”--which it defined analogously to “prima facie”--the trial court could not weigh conflicting evidence in deciding whether to allow the pleading. (College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 719-720.)

In our view, cases such as these simply recognize the obvious--that a showing which qualifies as sufficient “on its face” is not deprived of that qualification simply because later events, and the submission of additional evidence, persuade the trier of fact to reject it in making a final determination. In our case, such a construction is entirely inconsistent with Industrial Indemnity. That case holds that benefits accruing during the evaluation period cannot be denied simply because the trier of fact eventually decides that evidence submitted by the employer is more credible on the QIW issue. A showing which is sufficient “on its face” today is sufficient “on its face” tomorrow, and the day after that. That it may be discredited or overcome does not change its nature.

Accordingly, we hold that the Board erred insofar as it agreed with the Workers' Compensation Judge that the superior weight of Employer's evidence, and Applicant's own lack of credibility, justified the denial of benefits.

Similarly, we need not linger over the argument that Applicant's failure to submit all of the reports available to him is determinative. As we have explained, it is irrelevant under Industrial Indemnity that the employee's condition, and his status as a QIW, are in dispute. Had Applicant submitted all of the then-existing reports, favorable and unfavorable, he still would have been entitled to retroactive benefits because Dr. Bailey's report constituted prima facie evidence of QIW status.3 Although it is argued that Applicant failed to comply with various regulations, it was conceded by the Workers' Compensation Judge that nothing prevented Employer from filing a response to Applicant's request and any other medical reports which it felt to be germane, and a rehabilitation consultant who testified at the hearing stated that this was in fact the practice. Had Employer submitted additional reports in a timely manner, arguably the Rehabilitation Unit would have rendered a prompt decision in Employer's favor. Certainly Applicant cannot have known that Employer would be so lax in protecting its interests; he cannot have expected to have gained any advantage by “hiding” the unfavorable reports.4

The same analysis provides at least the starting point for the last argument by respondents. Industrial Indemnity does qualify its holding by referring to a request for rehabilitation benefits made “in good faith.” (165 Cal.App.3d at p. 640.) The case does not attempt to define the term for the purposes of eligibility for benefits. The reasoning of respondents appears to be as follows: Applicant was not a credible witness. Therefore, he probably lied to Dr. Bailey. Therefore, he could not have relied on the report “in good faith” because he must have known that its conclusions were based on his deliberate falsehoods.

The logic has a certain appeal, but it proves too much. A finding of bad faith in the filing of a request for rehabilitation benefits cannot be based simply upon the trier of fact's conclusion that the applicant's physical complaints were exaggerated. In a large percentage of cases, the medical reports on disability are based substantially upon the applicant's report of subjective factors such as pain, anxiety, and restricted movement. In some cases tests or examinations can substantiate (or disprove) the claims, but the issue frequently comes down to the trier of fact's determination on credibility with respect to such elements as pain (back pain and headaches are examples) or such psychological disabilities as depression or anxiety. We think it would be a dangerous precedent to allow the Board to make a finding of “bad faith,” and thus deny benefits, in any case where the trier of fact eventually determined 1) that the worker was not a QIW, and 2) that he or she was not “credible” or “reliable.”5

However, we need not consider in detail the factual situations which might support such a finding, although we think that objective proof of an employee's deception would go far to establish bad faith.6 Although the Board, in its response, asserts that the Workers' Compensation Judge impliedly made a finding of bad faith, in fact he did not. The original decision and the report on reconsideration set out the view that Applicant was not “credible/reliable” and that his various statements “contain numerous contractions [sic].” However, Applicant was also described as a “poor historian” and the Workers' Compensation Judge felt that “due to his education and background, [he] has difficulty in expressing himself clearly and/or concisely.” In his Report on Reconsideration, the Judge criticizes Applicant's attorney for “fail[ing] to present a full medical history and evidence” to the Rehabilitation Unit, and he blames “Applicant's counsel's failure to make full disclosure.”

It is apparent to us that these findings and comments fall far short of an affirmative finding that Applicant acted in bad faith in presenting the report of Dr. Bailey, and that report alone. There is no finding that Applicant deliberately lied; only that he was not believable or reliable, and had difficulties communicating. One may be inaccurate without evil intent, and we will not infer such intent to make findings which the trier of fact below did not.

The order is annulled and the matter is remanded for further proceedings consistent with this opinion.


1.  The administrative record is not entirely clear as to when Applicant submitted his request, which is not in the file. However, there is no dispute over the fact that a request was made, accompanied by Dr. Bailey's report, and that this report was reviewed and relied upon by the Rehabilitation Unit.

2.  An employee disabled by a work-related injury is normally entitled to receive temporary disability payments while he or she is recuperating and unable to return to his or her job. (Lab. Code, §§ 4650 et seq.) However, if it appears that the worker's expected permanent disability will prevent a return to the usual occupation, the worker is deemed “medically eligible” for rehabilitation services. If the worker can reasonably be expected to return to gainful employment through retraining or other rehabilitation, he or she is a “QIW” and the employer must provide such services. (Lab. Code, §§ 4635, et seq.) Such a worker who chooses to participate in rehabilitation receives the usual temporary disability payments until he or she becomes “permanent and stationary;” these benefits are generally referred to as “vocational rehabilitation temporary disability,” or “VRTD,” to distinguish them from the usual TD benefits.When the worker's condition stabilizes, instead of beginning to receive any permanent disability award, the worker receives a “maintenance allowance” as long as rehabilitation continues, generally limited to one year. (Lab. Code, § 139.5, subd. (c).) This allowance is referred to as a “vocational rehabilitation maintenance allowance” (“VRMA”) to distinguish it from the benefits paid during the rehabilitation period but before the employee's condition stabilizes. (See generally Jimenez v. Workers' Comp. Appeals Bd. (1991) 1 Cal.App.4th 61, 63-64, discussing the statutory scheme; also Ritchie v. Workers' Comp. Appeals Bd. (1994) 24 Cal.App.4th 1174, 1179-1184.)In this case, it appears that Applicant was permanent and stationary by the time benefits were awarded, and they would be characterized as VRMA.

3.  In Industrial Indemnity, at the time the request for rehabilitation was considered, there were also conflicting reports in existence with respect to the applicant's status as a QIW.

4.  Employer complains that the request for rehabilitation benefits failed to indicate that medical eligibility was in dispute. But this cannot have prejudiced Employer, which certainly knew that it was in dispute--on Employer's side!

5.  The logic necessarily becomes circular because if the trier of fact rejects a medical report which finds a worker to be a QIW, the basis must almost always be that the worker gave inaccurate or exaggerated descriptions of his or her disability. Thus, a finding of non-QIW status will become a giant step on the path to a finding of “bad faith.”

6.  For example, if a worker told the favorably-reporting doctor that he or she was unable to lift more than five pounds, and a contemporaneous sub rosa film showed the worker easily lifting very heavy objects, the inference that the worker deliberately lied to the doctor in hopes of obtaining benefits would be reasonable.

HOLLENHORST, Acting Presiding Justice.

McKINSTER and RICHLI, JJ., concur.

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