Nicky Blair's Restaurant v. Workers' Compensation Appeals Board

Citations: 109 Cal. App. 3d 941; 167 Cal. Rptr. 516; 45 Cal. Comp. Cases 876; 1980 Cal. App. LEXIS 2215Docket: Civ. 57926

Court: California Court of Appeal; August 29, 1980; California; State Appellate Court

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Petitioners, Nicky Blair's Restaurant and its insurer, contest a Workers' Compensation Appeals Board decision allowing respondent Juan J. Macias to reopen his workers' compensation claim for an increased disability award and additional medical treatment. Petitioners argue that the Board incorrectly raised Macias' permanent disability award and dispute the necessity for further medical treatment, though the latter claim is deemed without merit. The pivotal issue is the legal standards governing the reopening of Board decisions under specific Labor Code sections. 

Macias sustained a back injury while working as a waiter in 1972, leading to a diagnosis of a herniated disc and subsequent lumbar laminectomy in 1973. In 1975, he was awarded a 21.5% disability rating based on reduced lifting capacity, which he did not contest. In 1977, he filed to reopen his case, citing “new and further” disability. Judge Stark granted this petition, increasing his disability rating to 52% and approving additional medical treatment, based on Macias' testimony about worsening pain and new symptoms affecting his neck, shoulders, and legs. Medical evaluations from three doctors supported his claims, particularly noting significant limitations and increased pain levels. Dr. Rose's 1975 report highlighted Macias' persistent low back pain and its impact on his physical activities.

Macias suffers from permanent disability limiting him to light work due to back issues, neck pain, and associated headaches. Dr. Rose recommends a back brace and analgesics, noting deterioration in Macias' condition since a 1977 report. He asserts that Macias’ ability to work is further impaired by neck problems and headaches, which he believes are related to his injury. Dr. Morrow, who performed surgery on Macias in 1973, initially opined that Macias could work as a waiter with restrictions against heavy lifting. He maintains that Macias’ condition remains unchanged and asserts that the neck and head issues are unrelated to the industrial injury. Dr. Patzakis, in December 1977, supports light work limitations based on normal x-ray and EMG results despite Macias' complaints. He concludes that Macias' condition is stable and recommends annual check-ups without further treatment. Dr. Patzakis indicates that his assessment aligns with Dr. Rose's earlier evaluations. Judge Stark, in granting the petition to reopen, relies on Dr. Patzakis's independent medical opinion, concluding that Macias has a permanent disability rated at 52, equivalent to $15,746.25. Dr. Patzakis clarifies that his light work restriction is based on his evaluation rather than an increase in Macias’ disability.

In March 1975, if Dr. Patzakis had evaluated the applicant, he likely would have restricted him to light work based on available evidence. Dr. Patzakis opined that there is sufficient reason to reopen the case to adjust the permanent disability rating, as the previous award appears inadequate. Judge Stark, in his report to the Board concerning the petition for reconsideration, argued that there is indeed justification to reopen the case. Although the petitioner contended there was no "new and further disability," Judge Stark countered that while Dr. Patzakis indicated no change in the applicant's condition, the reassessment of the disability level constitutes a form of new disability. Denying this would undermine the applicant's rights to appropriate benefits. The evidence supports the reopening of the case, particularly Dr. Patzakis's independent evaluation. The Board, which denied reconsideration, referenced Judge Stark's report and cited Labor Code Section 5803, affirming its authority to modify awards if good cause is shown. Good cause exists here due to either an initial error by the Board or the emergence of new and further disability. The relevant sections 5410 and 5803 allow for case reopening within five years of injury. Although Judge Stark's decision came after five years post-injury, it was valid since the petition to reopen was filed within that period. Section 5410 allows reopening based on "new and further disability" when a petition is filed within five years, while Sections 5803-5805 permit reopening for "good cause." The term "new and further disability" lacks a precise definition in Section 5410 and judicial interpretation, but it signifies an increase in disability beyond previous assessments, requiring a demonstrable change in the employee's condition.

New and further disability can only arise after a temporary disability ceases or is interrupted by a period of nondisablement. This includes a new period of temporary disability, a change to permanent disability, or a gradual increase in disability. However, a permanent disability that exists from the beginning, such as the loss of an eye, does not qualify as new and further disability. Historically, a change in physical condition requiring further medical treatment was deemed new and further disability, regardless of whether it resulted in lost work time. If Macias' condition remains unchanged from the original 1975 decision, there is no basis for new and further disability under section 5410 to reopen the case. 

Nonetheless, 'good cause' to reopen under section 5803 may exist, requiring grounds unknown to the appeals board at the time of the original decision that render the initial award inequitable. This cannot be based solely on a change of opinion by the board, nor can cumulative evidence suffice for 'good cause.' The determination of 'good cause' is case-specific, and while it is given considerable weight, it is not definitive. Reopening for 'good cause' cannot relitigate the original award or address issues that should have been raised in a timely reconsideration petition. 'Good cause' does not include new medical evidence that merely contradicts the original opinion.

Common grounds for establishing 'good cause' include: (1) factual mistakes due to previously unavailable evidence, (2) legal mistakes revealed by subsequent rulings, (3) inadvertence by the Appeals Board, (4) newly discovered evidence that is not merely cumulative, and (5) fraud, such as perjury. A change in the Appeals Board’s opinion regarding the same facts does not constitute good cause. For new evidence to warrant reopening, it must be significant, not cumulative, and show that it could not have been discovered with reasonable diligence at the initial hearing. Reopening claims based on newly discovered evidence is not an automatic right. 'Good cause' can include developments that occur after the decision. The concepts of 'good cause' and 'new and further disability' may overlap, with new and further disability potentially supporting a claim for good cause.

Respondents claim 'new and further disability' or 'good cause' exists for reopening the case. Under section 5803, the criteria for 'good cause' also applies to employer petitions aimed at changing a prior award. They reference Macias' testimony about his deteriorating condition affecting his work ability. If the Board had relied on Dr. Rose, who reported significant deterioration and linked it to the original injury, 'new and further' disability would be evident. However, the Board chose to rely on Dr. Patzakis, who determined that Macias' head and shoulder issues were unrelated to the injury, found no objective evidence of neck disability, and attributed Macias' work restrictions to his assessed disability rather than subjective complaints. Dr. Patzakis only acknowledged an increase in subjective complaints related to the back, but found no objective support for increased complaints overall. The Board's reliance on Macias not returning to work fails to provide grounds for reopening, as he had not sought employment at the time of the original decision, and he testified to making no efforts to return to work since. Dr. Patzakis’ reevaluation of Macias' disability does not constitute 'good cause' for reopening, as it lacks newly developed facts. Macias contends that Dr. Patzakis' opinion about placing the same work restriction at the original decision time is speculative; however, the review of Dr. Patzakis’ report reveals it is based on reasonable medical probability. Consequently, the Board's decision to reopen and increase the permanent disability award is annulled, with a directive for reconsideration. Regarding future medical treatment, the original 1975 award did not include such provisions. Petitioners argue that no good cause for reopening this matter was shown, and substantial evidence does not support the award. However, they only challenged the future medical treatment award based on insufficient evidence in their petition for reconsideration and did not raise the issue of 'good cause' for reopening, thus forfeiting the argument in their later petition for writ of review.

The review of the award for future medical treatment is based on whether substantial evidence exists to support the award. Dr. Patzakis advises that Macias should undergo checkups once or twice a year despite indicating no immediate care is needed. Dr. Donald A. Springer’s report from January 31, 1977, suggests a likely need for further surgery, thereby providing substantial evidence for future medical treatment. 

The Board's prior decision to grant Macias' petition for an increased permanent disability award is annulled, and the case is remanded to the Board for further consideration. Justices Allport and Potter concurred with this decision. Macias' petition for a Supreme Court hearing was denied on October 22, 1980, although Chief Justice Bird expressed that the petition should have been granted.

The document references various sections of the Labor Code that address the rights of injured employees to seek compensation for new or further disabilities, the continuing jurisdiction of the appeals board over its orders, and the limitations on altering awards after five years. Additionally, it notes that the Board aims to assign supplemental proceedings to the original judge, though Judge Lippert had retired before Macias filed his petition to reopen. 

Macias previously testified about his condition, detailing difficulties with dressing, stiffness and tingling in his right leg after prolonged sitting, frequent night cramps, and a burning sensation in his feet, indicating ongoing issues related to his injury.

Persistent symptoms include burning sensations in the soles of both feet, particularly after prolonged standing, sitting, or walking short distances. Cramps occur during extended periods of sitting or standing and also during sleep, with notable numbness extending from below the knees to the toes. The individual experiences constant low back pain, exacerbated by lifting heavy objects or sudden movements, and abdominal pain radiating to the lower back upon waking. Sleeping difficulties necessitate the use of Anacin nightly, and while prescribed exercises provide some relief, bending remains challenging. 

Since an injury, his condition has deteriorated, particularly affecting the left leg, which now experiences increased cramps and burning sensations. The left foot occasionally turns inward during cramps, causing balance issues. He has also developed intense burning sensations in the neck and shoulders, alongside persistent headaches that vary in duration and intensity, with no discernible pattern. His left leg symptoms, previously less severe, have worsened significantly since April 1975, and he has been unable to seek work or further education since the injury. At 46 years old, he contemplates potential employment in a filling station, drawing from past experience, but lacks concrete plans for the future.

The individual experiences left leg cramps triggered by missteps and has not sustained any injuries since April 1975. His ability to navigate stairs has declined since then, and he reports difficulty moving his foot quickly. He can stand for 15 to 20 minutes and sit similarly to his capacity in April 1975, but he experiences persistent numbness in both legs, more severe in the left leg, which extends into the foot. To alleviate leg pain, he must stand for five to ten minutes. His driving capabilities have diminished, particularly due to his car's clutch. He believes he could lift 25 pounds but has not attempted it, as bending causes low back pain, which has worsened since April 1975. He has not worked since October 14, 1972, and feels unable to return due to his condition, despite believing he could perform a job requiring light physical activity. He takes daily aspirin, as he did in April 1975. A February 15, 1977, report from Dr. Rose notes that his headaches and upper back pain intensified in spring 1976 but became constant by late summer 1976. There are inconsistencies in his testimony, particularly regarding his understanding of "stabilize," suggesting potential confusion or a language barrier. He acknowledged that his pain has intensified since April 1975, and he now has urinary issues after prolonged walking, which he did not have previously. His headaches have been reported to multiple doctors, indicating a worsening condition, and he has developed nervous problems. The assessment of his disability suggests he can perform light work that involves standing or walking with minimal physical effort.

The Rating Schedule under California's Labor Code outlines the criteria for assessing permanent disabilities. A "standard rating" for a limitation to light work is set at 50. Dr. Rose's February 15, 1977 report indicates that the patient has worsening symptoms related to low back, head, and neck issues. Key findings include:

1. **Head Pain**: Characterized by suboccipital pain radiating to the vertex and forehead, occurring frequently and associated with dizziness and anxiety. Pain is generally slight to moderate but can escalate with stress.
   
2. **Neck Pain**: Involves pain in the lower neck radiating to shoulders and arms, with evidence of weakness and spasm. Pain levels are similar to head pain and are exacerbated by physical activities.

3. **Back Pain**: Described as lower back pain radiating to the buttocks and legs, accompanied by numbness and weakness. Pain fluctuates from slight to moderate, increasing with activity.

The patient is rated for light work restrictions due to these conditions, with a recommendation for ongoing medical care including analgesics, tranquilizers, physiotherapy, and the use of a back brace and cervical pillow. The permanent disability is attributed to an injury from October 14, 1972, with all subsequent disabilities linked to this initial injury. The reliability of Dr. Patzakis' opinions regarding new disabilities is questioned due to lack of prior examination.