BARNES v. WORKERS COMPENSATION APPEALS BOARD (1999)

Court of Appeal, Second District, Division 3, California.

Ronnie BARNES, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD;  Employment Development Department et al., Respondents.

No. B124720.

Decided: August 04, 1999

Marilee Jones-Cofield, Long Beach, for Petitioner. Richard A. Krimen, Robert W. Daneri and Don E. Clark, San Francisco, for Respondents Employment Development Department and State Compensation Insurance Fund. No appearance on behalf of Respondent Workers' Compensation Appeals Board.

INTRODUCTION

Ronnie Barnes seeks a writ of review after the Workers' Compensation Appeals Board (Board) denied his petition for reconsideration, thereby affirming the Workers' Compensation Judge's (WCJ) decision granting a petition to terminate medical treatment filed more than five years from the date of injury.

The primary issue presented is whether, based on Labor Code section 5804, the Board lacked jurisdiction to terminate liability for medical treatment more than five years after the date of injury.¹  We hold the Board may terminate a precautionary or provisional award of medical treatment more than five years after the date of injury.

[[/]] ^**

We affirm the Board's order.

FACTUAL AND PROCEDURAL SUMMARY

Barnes sustained an industrial right knee and low back injury on March 12, 1981, resulting in permanent disability of 6-1/4 percent while employed by the California Employment Development Department (EDD) (WCAB No. LBO 155442).²  The parties stipulated that Barnes might need future medical care, which stipulation resulted in a precautionary or provisional award.   Treatment for Barnes's preexisting, nonindustrial Paget's disease was specifically excluded from the employer's liability.

Following the award, EDD provided treatment to Barnes.

Years later, in order to determine whether medical treatment was still needed for the 1981 knee injury, Barnes and EDD designated Dr. Feiwell as their agreed medical examiner (AME).   In a November 6, 1995, report, Dr. Feiwell found all of Barnes's current treatment needs were due to his Paget's disease, and had been since 1989.   Dr. Feiwell reiterated his opinion in a supplemental report dated June 17, 1996, and in his deposition.

Based on Dr. Feiwell's opinion, EDD filed a petition to terminate its medical liability.   The WCJ granted the petition.   Barnes petitioned for reconsideration of the decision, referencing the Board's file numbers for both the EDD claim and one involving the City of Long Beach. [[/]] ^***

The Board denied Barnes's petition with regard to EDD, adopting and incorporating the report and recommendation of the WCJ as its decision after reconsideration.   In the ruling, the WCJ explained he had jurisdiction to entertain the petition to terminate because the award of future medical treatment was provisional, that is, the original award provided only that Barnes might need future medical treatment. [[/]] ***

 Barnes petitioned this court for a writ of review which was granted.⁴

DISCUSSION

1. Standard of review.

 The court is not bound by the Board's conclusions on questions of law.  (Dimmig v. Workmen's Comp. Appeals Bd. (1972) 6 Cal.3d 860, 864-865, 101 Cal.Rptr. 105, 495 P.2d 433;  Save Mart Stores v. Workers' Comp. Appeals Bd. (Gwin) (1992) 3 Cal.App.4th 720, 723, 4 Cal.Rptr.2d 597;  Klee v. Workers' Comp. Appeals Bd. (1989) 211 Cal.App.3d 1519, 1523, 260 Cal.Rptr. 217.)   Because the issue here is the jurisdiction of the Board to entertain and act on EDD's petition, the standard of review is de novo.

2. Provisional or precautionary continuing awards may be subject to a petition to terminate or to deny enforcement beyond the section 5804 five-year limitation.

 Barnes contends the Board lacked jurisdiction to terminate medical liability more than five years after the date of injury, citing section 5804.   That section provides no award shall be “rescinded, altered or amended” after five years from the date of injury.

EDD counters that granting a petition to terminate is equivalent to denying a petition to enforce, and should be treated the same, and is not governed by section 5804.

We conclude that with respect to provisional or precautionary awards, the WCJ and the Board have jurisdiction to enforce or to terminate such awards.

 a. Treatise analysis, case law and logic support ruling.

Sheldon C. St. Clair, a recognized authority in the field of Workers' Compensation Law, discusses precautionary awards as follows:  “When the injured employee is not under active treatment at the time of the issuance of the Findings and Award, but where the medical record indicates a strong possibility that such medical treatment may be necessary in the future, the Board will frequently issue a so-called ‘precautionary’ medical award.   Such an award is based on the finding that the employee may be in need of further medical treatment.”  (1 St. Clair, Cal. Workers' Compensation Law (5th ed.   Cal. Comp. Seminar 1996) § 9.9, at p. 607.)

St. Clair discusses Kauffman v. Workmen's Comp.App. Bd. (1969) 273 Cal.App.2d 829, 78 Cal.Rptr. 620 and Llewellyn Iron Wks. v. Indus. Acc. Comm. (Crider) (1933) 129 Cal.App. 449, 18 P.2d 975.   These cases, along with Fidelity etc. Co. v. Dept. of Indus.   Relations (1929) 207 Cal. 144, 277 P. 492, stand for the proposition that a petition to enforce a medical treatment award is not a petition to “modify, alter, or rescind” the award (section 5804 therefore is not implicated).  (1 St. Clair, Cal. Workers' Compensation Law, supra, § 9.9, pp. 619-620.)   In each of these cases, the petition was filed more than five years after the date of injury.

In Fidelity etc. Co. v. Dept. of Indus. Relations, supra, 207 Cal. 144, 277 P. 492, the Supreme Court held the Board had authority to require the employer to reimburse the employee for medical treatment obtained pursuant to an award for future medical care more than five years from the date of injury and after the employee was found permanent and stationary, because section 9a, predecessor to section 4600, required treatment to relieve, as well as cure ⁵ and, therefore, is a continuing award.

Fidelity found that the Board had the power to make the order requiring the employer to reimburse the employee for treatment rendered, that is, to enforce the award based on section 63(a), the predecessor statute to section 133, which gives the Board the authority to do and perform any and all things, whether specifically designated, or in addition thereto, which are necessary or convenient in the exercise of any power, authority or jurisdiction conferred upon it.

Fidelity also held that an order to enforce more than five years from the date of injury was not a modification, rescission or alteration of the award prohibited by section 20(d), predecessor to section 5804, because the award for future medical treatment was still in effect.

Kauffman v. Workmen's Comp. App. Bd., supra, 273 Cal.App.2d 829, 78 Cal.Rptr. 620, held the Board had authority specifically to order the employer to provide a certain type of care, in this case, a rest home and attendant care, more than five years after the date of injury based on the original award for future medical treatment.   The Board had this authority because an award of future medical treatment is a continuing award.

In Llewellyn Iron Wks. v. Indus. Acc. Comm., supra, 129 Cal.App. 449, 18 P.2d 975, more than five years after the date of injury, the court held that denial of a petition to compel the employer to continue providing treatment was within the Board's jurisdiction.  Llewellyn reasoned that because the order was continuous, the Board could enforce it beyond the five-year limit and that jurisdiction necessarily included the authority to decide whether the order should be enforced.

Llewellyn's employee, Crider, was awarded $15 weekly for nursing services to continue indefinitely until termination of the need for nursing services.   The need ended and the employer stopped paying.   Crider filed a petition to enforce the award which the WCJ denied.   The Board reversed because the WCJ had no jurisdiction to rescind, alter, or amend the award more than five years from the date of injury.   The Court of Appeal reversed the Board, ruling that there was no modification of the award citing Fidelity etc. Co. v. Dept. of Indus. Relations, supra, 207 Cal. 144, 277 P. 492, supra, because, “[t]he applicant [employee] does not get any more or any less than such award gives.”  (Llewellyn Iron Wks. v. Indus. Acc. Comm., supra, 129 Cal.App. at p. 453, 18 P.2d 975.)  Llewellyn further held that because the award continued indefinitely, it left open the question of when the period of necessity ended.

St. Clair reasons from these cases that a finding and award of future treatment should not be enforced is equivalent to granting a petition to terminate medical treatment, and section 5804 is not applicable.   St. Clair notes that Charles Swezey, author of California Workers' Compensation Practice (Cont.Ed.Bar 3d ed.1985) believes otherwise.   However, Swezey, and other authorities who agree with him, appear to simply assume, without supporting rationale, that section 5804 applies.⁶

It is clear that the Board is empowered to make an unlimited award of future medical treatment (Fidelity, etc., Co. v. Dept. of Indus. Relations, supra, 207 Cal. 144, 277 P. 492), making it a lifetime benefit.   A lifetime benefit makes sense when there is no doubt as to the need for lifetime treatment.   However, the Board also may make a provisional or precautionary award only that the injured worker may need further treatment as here.  (Fairview State Hospital v. Workers' Comp. Appeals Bd. (Kurash) (1982) 138 Cal.App.3d 595, 188 Cal.Rptr. 51;  Ingram Micro v. Workers' Comp. Appeals Bd. (Wright ) (1994) 60 Cal.Comp.Cases 50 (writ den.);   Lackey v. Workers' Comp. Appeals Bd. (1989) 54 Cal.Comp.Cases 280 (writ den.).)   The official form for stipulated agreements, and the former official form for findings, offer three choices from which the appropriate level of certainty may be selected:  There is, there is not, or there may be, a need for future medical treatment.)  (DIR WCAB form 3, ¶ 4, rev. (7-90);  DIA WCAB form 121 (rev. 10/75).)   Here, the former findings form was used and the category “may be” was selected.

An award which indicates only that there may be a need for future medical treatment contains the inference there may not be such a need.   Therefore, the employer has a right equal to the right of the injured worker to enforce the award.   In such an instance, a petition to terminate a precautionary or provisional award of future medical care is but a request to enforce the award.   Because case authority supports the view that an employee's petition to enforce an award may occur past the section 5804 five-year limitation (Kauffman v. Workmen's Comp.App. Bd., supra, 273 Cal.App.2d 829, 78 Cal.Rptr. 620;  Llewellyn Iron Wks. v. Indus. Acc. Comm. supra, 129 Cal.App. 449, 18 P.2d 975;  Fidelity etc. Co. v. Dept. of Indus. Relations, supra, 207 Cal. 144, 277 P. 492), St. Clair properly uses this concept as a basis for equating a petition to terminate an award to a petition to enforce an award.

 b. Barnes's authority inapposite.

In his supplemental brief, Barnes contends the decisions in Nickelsberg v. Workers' Comp. Appeals Bd., supra, 54 Cal.3d 288, 285 Cal.Rptr. 86, 814 P.2d 1328 and Hartsuiker v. Workers' Comp. Appeals Bd. (1993) 12 Cal.App.4th 209, 216, 15 Cal.Rptr.2d 719 require a petition to terminate be filed within five years from the date of injury pursuant to section 5804.   However, these decisions are not analogous.

In Nickelsberg, the California Supreme Court held the right to future medical treatment does not carry with it a commensurate right to further temporary disability indemnity.   Nickelsberg sought temporary disability indemnity in compensation for the time off work necessary to undergo and recover from surgery more than five years after the date of injury.   He argued his request was a petition to enforce his award of future medical care.   The court held the request was not a petition to enforce and therefore was barred by section 5804 and section 5410.  (Section 5410 requires a petition for new and further disability also must be filed within five years of the date of injury.)

Nickelsberg also discussed the repeal of the five-year limit on payment of temporary disability compensation in the 1978 amendment to Labor Code section 4656.  (Sen. Bill No. 1851 (1977-1978 Reg. Sess.) Stats.1978, ch. 937, § 1, p. 2913.)   Section 4656 previously prohibited temporary disability compensation for more than a total of 240 weeks within a period of five years.  Nickelsberg found the repeal of that limit was to prevent an arbitrary cut-off of temporary disability compensation for the rare person who was continuously temporarily disabled from the date of injury.   The law was not repealed to allow new awards of temporary disability more than five years from the date of injury.

Contrary to Barnes's argument, the repeal did not transform an award of temporary disability into a continuous benefit analogous to an award of future medical treatment.   Temporary disability compensation becomes due before the injured employee is declared permanent and stationary and, therefore, before the claim is ready for closure, whether by trial or settlement.   An award for future medical care, however, occurs at the time of closure and may continue beyond five years from the date of injury, perhaps for the remainder of the injured employee's life.

Hartsuiker, followed Nickelsberg and held the Board has no authority to reserve jurisdiction to award future temporary disability indemnity more than five years after the date of injury based on an award of future medical treatment and the prospect that Hartsuiker might need surgery in the future.

Neither of these decisions addressed the issue at hand, nor indicated that termination of a future medical treatment award was limited by section 5804.  Nickelsberg and Hartsuiker found that awarding an additional period of temporary disability after five years was an illegal modification of the original award.

3. Conclusion.

The underlying policy reason for the five-year limit embodied in section 5804 is certainty and finality.⁷  However, a continuing award for future medical treatment is, by its nature, not final.   A provisional or precautionary award of medical care has the potential for finality, and an employer should be permitted to terminate its liability if the need for treatment has definitively ended.   Therefore, we hold the petition to terminate a provisional or precautionary award of future medical treatment is simply the employer's petition to enforce the award by another name, and is not subject to the restrictions of section 5804, but may be filed at any time.

Moreover, as in Llewellyn, the award here left for future determination the question whether the need for treatment was due to a non-industrial disease.   However, the original award need not reference a specific non-industrial condition in order for a WCJ to later terminate the provisional award because all future medical awards are limited to treatment reasonably required to cure or relieve the effects of the injury. (§ 4600.)

[[/]] ^†

DISPOSITION

The Board's order denying reconsideration is affirmed.

FOOTNOTES

1.   Labor Code section 5804 states, in pertinent part, “No award of compensation shall be rescinded, altered, or amended after five years from the date of the injury except upon a petition by a party in interest filed within such five years․”All further statutory references are to the Labor Code unless otherwise indicated.

FOOTNOTE.   See footnote *, ante.

2.   The findings and award was not made a part of the record but has been included with petitioner's brief as exhibit 19.   We take judicial notice of it.  (Evid.Code, §§ 452, subd. (d), 459.)

FOOTNOTE.   See footnote *, ante.

4.   Barnes raised new issues in his response to EDD's answer.   Issues not raised on reconsideration are waived.  (Lab.Code § 5904;  California Ins. Guarantee Assn. v. Workers' Comp. Appeals Bd. (1992) 10 Cal.App.4th 988, 12 Cal.Rptr.2d 848;  U.S. Auto Stores v. Workmen's Comp.App. Bd. (1971) 4 Cal.3d 469, 93 Cal.Rptr. 575, 482 P.2d 199;  Loomis Corp. v. Workers' Comp. Appeals Bd. (McDermott) (1982) 47 Cal.Comp.Cases 16.)

5.   Section 4600 requires the employer provide all medical treatment reasonably required to “cure or relieve from the effects of the [industrial] injury.”

6.   Swezey states, without further discussion, a petition to terminate medical treatment liability is subject to the law governing re-opening and such a petition must be filed within five years of the date of injury.  (Swezey, Cal. Workers' Compensation Practice, supra, § 12.24, at p. 468.)   Stanford Herlick, agrees and adds only that Department of Workers' Compensation, Form 46 entitled “Petition to Terminate Liability for Temporary Disability Indemnity” may be used to terminate any benefit.   (Herlick, Cal. Workers' Compensation Law (Parker 4th ed.1994) § 15.24, pp. 15-40-15-42.)   Warren Hanna does not address the issue.  (See 2 Hanna, Cal. Law of Employee Injuries & Workers' Compensation (rev.2d ed.)   (Matthew Bender 1998) § 5.03[4], pp. 5-20-5-21.)

7.   Nickelsberg v. Workers' Comp. Appeals Bd., supra, 54 Cal.3d 288, 285 Cal.Rptr. 86, 814 P.2d 1328 and Hartsuiker v. Workers' Comp. Appeals Bd., supra, 12 Cal.App.4th at p. 216, 15 Cal.Rptr.2d 719;  see also, 8 Larson's Workers' Compensation Law (Matthew Bender 1978;  1998 supp.), § 81.00-81.21, pp. 15-1045-15-1062;  § 81.26, p. 15-1087;  § 81.53, pp. 15-1194.152-15-1194.168. (Some states require a petition to terminate be filed within a specified time to establish finality, while other states hold that all awards are continuing awards subject to the jurisdiction of the Board at any time, resulting in a perceived administrative nightmare.   A few jurisdictions afford the commissioners broad power to re-open a case at anytime for good cause.)

FOOTNOTE.   See footnote *, ante.

KLEIN, P.J.

CROSKEY, J., and KITCHING, J., concur.