AANENSON v. WORKERS COMPENSATION APPEALS BOARD

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Court of Appeal, Second District, Division 6, California.

Peggy AANENSON, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD; Danish Care Center, Inc., et al., Respondents.

No. B091685.

Decided: January 18, 1996

William A. Herreras, Grover Beach for Petitioner. Law Offices of James M. Zerboni, Mary Ann Zuccarini, Tustin, for Respondents. No appearance for Respondent Workers Compensation Appeals Board.

Here, we hold that the Workers' Compensation Appeals Board (Board) erred in directing the workers' compensation judge (WCJ) to issue rating instructions which disregarded a medical restriction placed on the applicant. We also hold that the Board erred in directing the WCJ to eliminate an award for future psychiatric care and treatment from a previous award. We will not disturb the apportionment of applicant's psychiatric disability to nonindustrial factors after finding the medical report marginally satisfies the statutory requirements for apportionment.

FACTS

On December 16, 1992, applicant Peggy Aanenson was employed as a nurse's aide at defendant Danish Care Center, Inc., insured by defendant Pacific Rim Assurance Company. On that day, she injured her neck while lifting a patient. A few days later, she developed Bell's Palsy in her face which caused a tic and distortion of her facial muscles.

On August 25, 1993, Dr. Hugh Greer, a neurologist, reported that the Bell's Palsy was not an industrial injury.1 He found that applicant had a serious neck injury and concluded that she was precluded from “heavy lifting with the left arm․” In a September 10, 1993, letter responding to a question from applicant's counsel, Dr. Greer stated: “[Applicant] should not do prolonged work with her neck extended or arms above shoulder level․ This is standard advice for anyone with neck or arm pain. It is not intended to increase the level of disability recommended, which is that precluding heavy work with the left arm․”

Applicant subsequently developed psychiatric problems and claimed psychiatric injury. She was examined by psychiatrist James Wells. On February 7, 1994, he reported that, “[p]sychiatrically, Ms. Aanenson is in considerable distress.” Dr. Wells noted applicant's personal history which reflected an underlying personality disorder and a strong tendency to engage in self-defeating behavior. Both of her prior husbands had abused her; she had been convicted of driving under the influence of alcohol; and she had attempted to raise a developmentally disabled son who had been placed in foster care. He stated, “In my opinion, it is more than a reasonable medical certainty that Ms. Aanenson brought with her to the work place a pre-existing and long-standing Personality Disorder.”

He further noted that the Bell's palsy, which was not work-related, “was a triggering [event] in a major destabilization of psychological defenses in which ․ there was a bundling of a variety of problems into one package. We can only conclude that much of the psychiatric difficulty would have occurred absent the stretch injury of December 16, 1992, because of the subsequent impact of the Bell's palsy.” He concluded it was appropriate to apportion applicant's psychiatric disability between industrial and nonindustrial factors. He prepared two “Work Function Impairment Forms,” one describing “applicant's work impairments absent the work injury” and the other describing “work impairments in the presence of work injury.”2

In discussing applicant's need for future treatment for her psychiatric injury, Dr. Wells stated: “Enough time has elapsed to cure or alleviate the industrially-related components of this woman's problems. I believe she should have the opportunity for continued counseling and medication management until there is resolution of any process of Vocational Rehabilitation which might be related to her neurologic injury. Treatment beyond that time would be for problems and conditions lying outside the arena of her work-related difficulties.”

The WCJ issued rating instructions which included the restriction of no prolonged work with the neck and arm extended upwards. He did not request apportionment of the psychiatric injury. The evaluator issued a rating of 57 1/2 percent disability, which resulted in the WCJ awarding $48,285 for permanent disability. The WCJ also awarded “[s]uch further medical treatment as may be needed to cure or relieve the Applicant from the effects of the injury to her psyche ․”

Defendants petitioned for reconsideration, arguing that the restriction of not working with the neck and arm extended should not have been included in the rating instructions, that the psychiatric injury should have been apportioned, and that applicant should not have been awarded future psychiatric treatment. The WCJ recommended denial of reconsideration, pointing out that Dr. Greer's preclusion of working with the neck and arm extended had to be rated despite Dr. Greer's opinion that it should not increase the level of disability. The WCJ also stated that Dr. Wells was apportioning the psychiatric injury to pathology and not disability.

The Board granted reconsideration and directed the WCJ to issue rating instructions omitting the restriction of prolonged work with neck and arm extended upwards and apportioning the psychiatric injury. With regard to apportionment, the Board stated: “[W]e are persuaded that Dr. Wells properly apportioned disability, not causation or non-industrial factors.” The Board also stated, that since Dr. Wells said applicant was fully recovered from the work-related psychiatric injury, “an award of further medical treatment based on Dr. Well's opinion does not appear appropriate.”

The new rating instructions resulted in a finding applicant is 18 1/2 percent disabled and an award of $10,220. Applicant was also denied further psychiatric treatment. Applicant's petition for reconsideration was denied by the Board.

DISCUSSION

1. Factors of Orthopedic Disability.

Applicant contends the Board's decision that the original rating instructions were erroneous is not reasonable. This is because Dr. Greer's letter clearly sets forth an additional work restriction, even if he did not mean for it to do so. “[W]here the Board's decision is not within the realm of what a reasonable trier of fact could find, the decision is not supported by substantial evidence and must be annulled.” (Bracken v. Workers' Comp. Appeals Bd. (1989) 214 Cal.App.3d 246, 254-255.)

Here, there was no evidence refuting Dr. Greer's statement that applicant “should not do prolonged work with her neck extended or arms above shoulder level.” It was not for Dr. Greer to decide if this work restriction was a separate factor of disability or if it was to be subsumed within the restriction precluding heavy work with the left arm. That is the function of the WCJ assisted by the disability evaluator.

Dr. Greer's opinion that the work restriction did not increase the level of disability rested upon an incorrect legal theory. Therefore, it was not substantial evidence on which the Board could rely in ordering rating instructions for the neck injury. (Zemke v. Workmen's Comp. App. Bd. (1968) 68 Cal.2d 794, 798.) That portion of the Board's decision must be annulled.

2. Apportionment of Psychiatric Disability.

Appellant correctly points out that, even if she had a preexisting psychiatric injury or impairment, defendants are liable to the extent her industrial injury accelerated, aggravated or “lit up” the preexisting condition. (Sidders v. Workers' Comp. Appeals Bd. (1988) 205 Cal.App.3d 613, 628.) Dr. Wells did not explicitly state that applicant's apportioned psychiatric disability was caused by the natural progression of a preexisting, nonindustrial condition. (Schmidt v. Workers' Comp. Appeals Bd. (1994) 28 Cal.App.4th 1458, 1463-1464.)

However, he did prepare two evaluations. One stated applicant's projected level of impairment if she had not suffered the industrial injury. The other stated her level of impairment in the presence of the industrial injury. Defendants argue that this was enough to satisfy the requirements of Labor Code section 4663, which allows apportionment to the natural progression of a preexisting disease, and Labor Code section 4750.5, which governs apportionment to a subsequent injury.3

The Board, the trier of fact, agreed with defendants. It found that Dr. Wells had not apportioned the pathology of the pre-existing disease and had properly considered the industrial factors which had caused a “lighting up” of the preexisting condition. The Board also noted that Dr. Wells concluded that the subsequent development of Bell's Palsy, which was not industrially related, was the triggering event which caused applicant's psychiatric disability.

We will defer to the Board's finding. While Dr. Wells' report did not precisely state the reasons why applicant would have suffered a portion of her disability absent the industrial injury, his report contained many references to the factors he was considering in apportioning the disability. His discussion of these factors plus comparisons he drew in the two evaluation reports were sufficient evidence to support apportionment.

3. Psychiatric Treatment During Rehabilitation.

Dr. Wells stated that the work-related portion of the industrial injury was cured. However, he also apparently concluded that there was a reasonable probability that the stress of rehabilitation would “light up” that injury and that further counseling and medication should be provided to enable applicant to cope with that stress. Any “injury in rehabilitation [is] causally connected to the original injury so as to obligate the original employer and insurer to pay compensation for the injury sustained by the employee while engaged in a rehabilitation program.” (Trevino v. Workers' Comp. Appeals Bd. (1989) 207 Cal.App.3d 1012, 1016; Rodgers v. Workers' Comp. Appeals Bd. (1985) 168 Cal.App.3d 567, 575.)

If applicant suffered further psychiatric injury during rehabilitation, defendants would be liable for all expenses of treating that injury. The treatment could not be apportioned. (Granado v. Workmen's Comp. App. Bd. (1968) 69 Cal.2d 399, 405-406.) The care recommended by Dr. Wells may well prevent further aggravation of the psychiatric injury during rehabilitation. Under these circumstances, the WCJ's decision to award such care was appropriate and the Board should not have found otherwise.

The decision of the Board denying reconsideration is annulled and the matter is remanded to the Board for further proceedings consistent with this opinion.

FOOTNOTES

1.  The parties later stipulated that the Bell's Palsy was not related to applicant's employment.

2.  With regard to the ability to comprehend, the form stated applicant's impairment was very slight to slight without the work injury and slight with the work injury; with regard to ability to maintain work pace, very slight without work injury and slight with it; with regard to the abilities to perform complex tasks, relate to people, influence people, make decisions, and carry out planning responsibilities, the impairment was slight without the work injury and somewhat more than slight with it.

3.  Labor Code section 4663 provides: “In case of aggravation of any disease existing prior to a compensable injury, compensation shall be allowed only for the proportion of the disability due to the aggravation of such prior disease which is reasonably attributed to the injury.” [ [¶] Labor Code section 4750.5 provides: “An employee who has sustained a compensable injury and who subsequently sustains an unrelated noncompensable injury, shall not receive permanent disability indemnity for any permanent disability caused solely by the subsequent noncompensable injury.”

STEVEN J. STONE, Presiding Justice.

GILBERT and YEGAN, JJ., concur.