SCHMITZ v. WORKERS COMPENSATION APPEALS BOARD OF STATE OF CALIFORNIA (1984)

We review a decision by the Workers' Compensation Appeals Board (Board) denying applicant's petition for reconsideration of an award of 113/434 percent permanent disability.

 The Board, in determining whether to grant reconsideration, was required to give great weight to the decision of the trial judge which was based upon a preponderance of the evidence.  (Garza v. Workmen's Comp. App. Bd. (1970) 3 Cal.3d 312, 90 Cal.Rptr. 355, 475 P.2d 451;  Greenberg v. Workmen's Comp. App. Bd. (1974) 37 Cal.App.3d 792, 112 Cal.Rptr. 626.)   Our review of the Board's decision is based on the entire record as well as the reasonableness and fairness of that decision in light of the purposes and objectives of the Workers' Compensation law.  (Universal City Studios, Inc. v. Worker's Comp App. Bd. (1979) 99 Cal.App.3d 647, 160 Cal.Rptr. 597.)   If substantial evidence supports the decision we are bound to affirm.   (LeVesque v. Workmen's Comp. App. Bd. (1970) 1 Cal.3d 627, 83 Cal.Rptr. 208, 463 P.2d 432.)

Here the trial judge rendered his decision after hearing the testimony of the applicant and an independent medical examiner.   The dispute, which we view as more semantic than real, arises from the instructions submitted to the rating specialist by the trial judge.

Applicant, a 22 year old sales clerk in a clothing store, was injured in the course and scope of her employment when a rack of clothes fell on her.   It is uncontroverted that the sole manifestation of her injury was subjective pain of a “slight” to “occasionally less than moderate” degree in the neck and upper back.   Said pain is experienced only under certain circumstances.

The trial judge's instructions to the rating specialist reads as follows:  “Injury to the neck and back resulting in slight to occasionally less than moderate pain in the right neck and upper back region related to activities of repeated bending, heavy lifting with the upper extremities, frequent or vigorous twisting movements involving the neck and upper back region, sitting or driving in one position more than an hour at a time.”

These instructions were based in part on the report of Dr. Richard Masserman, the independent medical examiner, which read:  “Based primarily on subjective factors, the patient should be restricted from activities of repeated bending and heavy lifting with the upper extremities, frequent or vigorous twisting movements involving the neck and upper back region and the need for long sitting or driving in one position more than an hour at a time without moving about at least five to ten minutes.”

The independent medical examiner testified that the applicant could perform any of the above mentioned activities and that the “restrictions” were recommended by him simply as a way of avoiding the complaints of pain.

 Applicant contends that the instructions to the rating specialist should have included the “work restrictions,” with the result that applicant would be rated as a person lacking the ability to perform those described activities.

According to the trial judge, his formulation of the instruction was based on the following reasoning:

“Rules of Practice and Procedure of the Workers' Compensation Appeals Board, Section 9727 state:  “ ‘1.   A severe pain would preclude the activity precipitating the pain.   2.  A moderate pain could be tolerated but would cause marked handicap in the performance of the activity producing the pain.   3.  A slight pain could be tolerated but would cause some handicap in the activity producing the pain.’ ”

“In accordance with these definitions of subjective complaints, (i.e., pain) applicant would not be precluded from performing the activities causing her pain because the level of pain she experiences is less than moderate.   In fact, the level of pain indicated by Dr. Masserman would not even cause a marked handicap in performance of those activities.   Thus, Dr. Masserman's reason for precluding the activities indicated simply is not valid and the precluded activities may not be the subject of a rating.”

In its order denying the applicant's petition for reconsideration, the Board stated “Based on our review of the record, including the reasons and evidence discussed by the WCJ in his report on reconsideration and the following, we are persuaded that the WCJ was justified in finding permanent disability of 113/434%.  It has not been established that the basis for the work restriction reported by Dr. Richard Masserman was the medical possibility that applicant would sustain actual physical disability if she engaged in certain activities (i.e., prophylactic restriction).   Thus that restriction was adequately addressed by the factors included in the rating instructions.  [Citation omitted.]”

From the record we are disinclined to disturb the worker's compensation judge's evaluation of the applicant's permanent disability since it is within the range of the evidence and we are satisfied that it was justified by the record.”

In Luchini v. Workmen's Comp. App. Bd. (1970) 7 Cal.App.3d 141, 86 Cal.Rptr. 453, it was held that an award of permanent disability must take into account work restrictions imposed by the treating physicians.   There, however, the injury was a compound fracture of the leg requiring a bone graft.   The result was a shortening of the leg and atrophy of the muscles requiring lumbosacral support and a heel lift.   The work restrictions imposed by the doctors were prophylactic in order to prevent reinjury.

Here we deal with subjective symptoms only with no impairment of the normal use of any part of the body.   There is no threat of reinjury.   It is uncontroverted that the applicant can perform any of the activities referred to in the instructions to the rating specialist, albeit with some slight pain if the activity is constant and repetitive.

The underlying purpose of the Workers' Compensation law is to compensate individuals for a loss of earning capacity or a reduction in the ability to compete in the open labor market.  (Luchini v. Workmen's Comp. App. Bd., supra.)

In essence the independent medical examiner's report here and the trial judge's instructions to the rating specialist say the same thing, to wit, the applicant experiences slight to occasionally less than moderate pain when she engages in certain activities.

We have also been cited to LeVesque v. Workmen's Comp. App. Bd., supra, and Franklin v. Workmen's Comp. Appeals Bd. (1971) 18 Cal.App.3d 682, 96 Cal.Rptr. 201, as authority for disapproving of the rating instructions.   We find these authorities to be inapposite.

In LeVesque, the prophylactic work restrictions were also aimed at preventing reinjury.   The court opined that the trial judge and the Board must accept as true the “intended meaning” of uncontroverted evidence.   In the case at bench the trial judge's instructions did just that as that meaning was explained by Dr. Masserman.

Franklin, supra, is a rather enigmatic opinion, which does not set forth the exact flaw which the court found in the rating instructions.   Nevertheless from the facts described, the conclusion is inescapable that it was a case of severe subjective pain, a limitation to sedentary work and the use of back brace.   Neither LeVesque or Franklin make any reference to section 972 of the Rules of Practice and Procedure.

The testimony of the independent medical examiner here did not even approximate the factual situation in either LeVesque or Franklin.

Further, as we have noted, except for the obvious comment by the independent medical examiner that applicant's slight subjective pain could be avoided by abstaining from certain activities, the report was adopted verbatim by the trial judge in his instructions to the rating bureau.

Obviously the task of evaluating subjective pain is a difficult one indeed.   In our opinion, the Board's adoption of section 972 of its Rules of Practice and Procedure is a fair and reasonable approach to the problem.

Applicant's position, if accepted, would have the effect of converting the limitation of activity necessary to avoid the experiencing of slight subjective pain into a complete lack of ability to perform that activity.   That conversion would in turn obliterate the distinction between slight and severe pain or, in fact, under some circumstances, the distinction between slight subjective pain and the loss of a body member, or serious objective physical impairment, a result totally inconsistent with the objectives and purposes of the Workers' Compensation law.

The trial judge's instruction properly ignored the so-called “work restrictions” and called for a rating of the slight subjective pain—the only impairment applicant experienced.

Under the circumstances of this case, it appears to us that 113/434 percent permanent disability more than adequately compensates applicant for any impairment she may have suffered in her earning capacity or her ability to compete in the open labor market.   The decision of the Board was reasonable and well supported by the evidence and the law.

The Petition for Writ of Review is denied.

COMPTON, Associate Justice.

ROTH, P.J., and BEACH, J., concur.