Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
ORIGINAL PROCEEDINGS; petition for writ of review from a decision of the Workers’ Compensation Appeals Board WCAB No. BAK 0141408. Rick Dietrich, Frank M. Brass, and Ronnie G. Caplane, Commissioners. Donald H. Johnson, Workers’ Compensation Administrative Law Judge.
Matheny, Sears, Linkert & Jaime, LLP and Michael A. Bishop, for Petitioner.
No appearance by Respondent Workers’ Compensation Appeals Board.
Adams, Ferrone & Ferrone and Paul F. Ferrone for Respondent Lupe Garza.
OPINION
Before Vartabedian, Acting P.J., Levy, J., and Gomes, J.
The California Department of Corrections and Rehabilitation (CDCR) petitions for a writ of review (Lab. Code, §§ 5950, 5952; Cal. Rules of Court, rule 8.494) contending the Workers’ Compensation Appeals Board (WCAB) erred in relying in part on a recent decision in Department of Corrections and Rehabilitation v. Workers’ Comp. Appeals Bd. (2008) 166 Cal.App.4th 911 (Alexander) in concluding that under section 4663, subdivision (e), as enacted effective January 1, 2007, the injuries of various public safety workers presumed to be industrial in nature may not be apportioned after the original enactment of section 4663 on April 19, 2004. (Sen. Bill No. 899; Stats. 2004, ch. 34.) Although the CDCR points to a pertinent factual distinction existing in half of the relevant statutory presumptions, we nevertheless agree with the result here as evidenced by the Legislature’s intent. Accordingly, we deny the petition for writ of review.
Further statutory references are to the Labor Code unless otherwise stated.
BACKGROUND
On June 26, 2003, Lupe Garza felt pain in his chest while working as a correctional officer for the CDCR in Tehachapi. On August 19, 2008, a workers’ compensation administrative law judge (WCJ) found Garza sustained cumulative trauma injury to his heart, cardiovascular and internal systems, hernia, and psyche entitling him to temporary disability indemnity through October 15, 2007, when he became permanent and stationary. The WCJ also concluded that section 4663, subdivision (e) precluded apportioning out nonindustrial causes to Garza’s hypertension, heart, and cardiovascular injuries from his overall level of disability. After apportioning the remaining injuries and adjusting for Garza’s age and occupation, the WCJ determined Garza was 97 percent permanently disabled warranting 669.50 weekly payments of $230 and a weekly pension of $143.02 thereafter for life.
The CDCR, through its adjusting agent State Compensation Insurance Fund (SCIF), petitioned the WCAB for reconsideration contending section 4663, subdivision (e) does not apply retroactively to injuries occurring before January 1, 2007, and that the WCAB therefore should have apportioned nonindustrial causes from Garza’s heart-related disability. In a report and recommendation to the WCAB, the WCJ noted the Third Appellate District’s decision in Alexander, which had been filed only six days earlier, held section 4663, subdivision (e) “was declarative of existing law, and so was retroactive.” The WCJ continued that even absent Alexander, the Legislature sufficiently declared a retroactive intent in enacting subdivision (e) so as to impose the provision to injuries occurring before its enactment date. On October 14, 2008, the WCAB summarily denied the petition for reconsideration by adopting and incorporating the WCJ’s report and recommendation.
A November 29, 2007, report prepared by agreed medical examiner (AME) Timothy C. Reynolds, M.D., concluded that approximately 50 percent of 62-year-old Garza’s permanent internal medical disability and impairment was directly caused by his employment with the CDCR, and approximately 50 percent “was probably directly caused by other factors.”
DISCUSSION
The CDCR contends the WCAB misinterpreted section 4663, subdivision (e) in concluding the provision applied retroactively before January 1, 2007, and thereby refusing to apportion the heart-related portion of his June 26, 2003, industrial injury. In workers’ compensation terminology, “apportionment” refers to the process of segregating “‘“the residuals of an industrial injury from those attributable to other industrial injuries, or to nonindustrial factors, in order to fairly allocate the legal responsibility.”’” (Marsh v. Workers. Comp. Appeals Bd. (2005) 130 Cal.App.4th 906, 911 (Marsh).) “‘“Generally, an employer is held responsible in the workers’ compensation system only for the disability of an injured employee arising from the particular employment with that employer, but not for disability fairly attributable to periods of employment elsewhere or to nonindustrial conditions.”’” (Ibid.)
By not disputing any underlying facts, the CDCR presents a pure question of statutory interpretation reviewable by this court de novo. (Signature Fruit Co. v. Workers’ Comp. Appeals Bd. (2006) 142 Cal.App.4th 790, 795 (Signature Fruit).) We nevertheless accord “‘significant respect’” to the WCAB’s interpretation of workers’ compensation statutes “‘unless clearly erroneous.’” (Brooks v. Workers’ Comp. Appeals Bd. (2008) 161 Cal.App.4th 1522, 1528.)
“In reviewing a workers’ compensation provision, we give great weight to the WCAB’s interpretation unless it contravenes legislative intent as evidenced by clear and unambiguous statutory language. [Citation.] In addition, we look to the overall scheme of which a provision is a part and consider the consequences that will flow from a particular construction so as to achieve wise policy rather than mischief or absurdity. [Citation] We must also consider fairness, reasonableness, and proportionality of an enactment and the purposes sought to be achieved. [Citation.]” (Signature Fruit, supra, at p. 795.)
In enacting Senate Bill No. 899 in 2004, the Legislature reformed the workers’ compensation system and overhauled the statutes governing apportionment. (Brodie v. Workers’ Comp. Appeals Bd. (2007) 40 Cal.4th 1313, 1324 (Brodie).) The Legislature repealed former apportionment sections 4663, 4750, and 4750.5 and established new sections 4663 and 4664. (Stats. 2004, ch. 34, §§ 33-35; Marsh, supra, 130 Cal.App.4th at p. 912.) Instead of basing apportionment on “disability,” apportionment must now be based on “causation.” (§ 4663, subd. (a).) Accordingly, under the current statutory scheme, a physician’s report addressing permanent disability is complete only if it addresses causation and makes “an apportionment determination by finding what approximate percentage of the permanent disability was caused by the direct result of the injury arising out of and occurring in the course of employment and what approximate percentage of the permanent disability was caused by other factors both before and subsequent to the industrial injury, including prior industrial injuries.” (§ 4663, subds. (b), (c).) Apportionment now is required also where the employee received a prior workers’ compensation award. (§ 4664.) We concluded in Marsh that given the Legislature’s express declarations, Senate Bill No. 899’s apportionment provisions applied retroactively to all cases “not yet final at the time of the legislative enactment on April 19, 2004, regardless of the earlier dates of injury and any interim decision.” (Marsh, supra, 130 Cal.App.4th at p. 910; see also Rio Linda Union School Dist. v. Workers’ Comp. Appeals Bd. (2005) 131 Cal.App.4th 517; Kleeman v. Workers’ Comp. Appeals Bd. (2005) 127 Cal.App.4th 274.)
In uncodified language, Senate Bill No. 899 provided: “The amendment, addition, or repeal of, any provision of law made by this act shall apply prospectively from the date of enactment of this act, regardless of the date of injury, unless otherwise specified, but shall not constitute good cause to reopen or rescind, alter, or amend any existing order, decision, or award of the Workers’ Compensation Appeals Board.” (Stats. 2004, ch. 34, § 47.) As an urgency statute, Senate Bill No. 899 became effective immediately upon chaptering “[i]n order to provide relief to the state from the effects of the current workers’ compensation crisis at the earliest possible time....” (Stats. 2004, ch. 34, § 49.)
In enacting the reforms, Senate Bill No. 899 did not amend a series of statutory presumptions regarding the industrial nature of various injuries applicable to certain public safety officers under section 3212 et seq. “All of the persons benefitted are in the general fields of law enforcement or firefighting, but by no means are all public employees in that field included.” (Saal v. Workmen’s Comp. Appeals Bd. (1975) 50 Cal.App.3d 291, 297 (Saal).) “Beyond question, these statutes show a purpose of the Legislature to provide additional benefits for certain public employees whose services are both vital to the public interest and hazardous.” (Ibid.) Generally, the provisions rebuttably presume an industrial causation between various injuries and diseases -- such as hernia, heart trouble, pneumonia, cancer, tuberculosis, meningitis, or Lyme disease -- sustained by the enumerated classes of public safety officers while or within a specified period of time so employed. As the Saal court explained in the context of determining whether any of the presumptions applied to a California State University campus policeman, however, some of the presumptions in the public safety occupational series contain an additional secondary benefit of eliminating the possibility of apportioning any of the industrial injury to prior industrial diseases:
“For the purpose of analysis it is useful to notice that sections 3212 through 3213 confer two distinct kinds of benefits. The first kind is a disputable presumption that a particular disease developing or manifesting itself during the period of employment arises out of and in the course and scope of employment. This serves to improve the probability that a person suffering from such a disease will be able to prove his claim. But the presumption does not purport to give to a member of the favored class a substantive benefit which is not available to any other applicant for compensation who is able to produce persuasive evidence that his disease was industrially caused.
“The other benefit is the provision for non-attribution, which gives to the favored class a measure of compensation which is not granted to other applicants.
“Under this non-attribution rule, if an employee’s disability because of heart trouble is caused in part by his work, his award is not subject to apportionment for pre-existing disease. [Citation.] Such an employee thus is given a benefit in excess of that awarded to a person in another kind of employment, whose medical history and disability are in other respects identical.” [¶] … [¶]
“The additional compensation authorized by the non-attribution rule is part of the total economic reward for certain positions in public employment. It is a kind of extra compensation which the Legislature has seen fit to provide for specified employees.” (Saal, supra, 50 Cal.App.3d at pp. 297-298, fn. omitted.)
Each of statutory presumptions with non-attribution clauses contain language that the presumed industrial injury “shall in no case be attributed to any disease existing prior to that development or manifestation.” Of the 16 employment-based presumptions, eight include non-attribution clauses (§§ 3212, 3212.3, 3212.4, 3212.5, 3212.7, 3212.8, subd. (c), 3212.11, and 3213) and eight do not (§§ 3212.1, 3212.2, 3212.6, 3212.85, 3212.9, 3212.10, 3212.12, and 3213.2). There is no clear indication why only half of these presumptions include the additional benefit of precluding apportionment to prior diseases, although “[c]ommentators have suggested that the distinctions which appear in that series of enactments reflect only the Legislature’s response to recurring demands by particular groups.” (Saal, supra, 50 Cal.App.3d at p. 296.) Nevertheless, the distinctions remain among the statutory provisions.
The non-attribution clauses do not prohibit apportionment to concurrent or post-injury diseases.
There is no dispute here that the specific presumption under section 3212.2 applied to Garza as a correctional officer, who sustained heart trouble while employed by the CDCR. That section provides in its entirety:
“In the case of officers and employees in the Department of Corrections [now known as the CDCR] having custodial duties, each officer and employee in the Department of Youth Authority having group supervisory duties, and each security officer employed at the Atascadero State Hospital, the term ‘injury’ includes heart trouble which develops or manifests itself during a period while such officer or employee is in the service of such department or hospital.
“The compensation which is awarded for such heart trouble shall include full hospital, surgical, medical treatment, disability indemnity, and death benefits, as provided by the workmen’s compensation laws of this state.
“Such heart trouble so developing or manifesting itself in such cases shall be presumed to arise out of and in the course of the employment. This presumption is disputable and may be controverted by other evidence, but unless so controverted, the appeals board is bound to find in accordance with it. This presumption shall be extended to a member following termination of service for a period of three calendar months for each full year of the requisite service, but not to exceed 60 months in any circumstance, commencing with the last date actually worked in the specified capacity.”
Section 3212.2 does not contain the non-attribution language prohibiting apportionment to prior diseases. Heart trouble developing or manifesting itself in public safety officers “shall in no case be attributed to any disease existing prior to that development or manifestation” if employed by numerous other state and local governmental agencies (§§ 3212, 3212.3, 3214, 3212.5, 3212.7), but not if employed by the CDCR (§ 3212.2). Accordingly, while the basis for assessing apportionment changed under Senate Bill No. 899 (see Marsh, supra, at pp. 911-912), the legislation did not invoke an anti-attribution clause applicable to CDCR employees under section 3212.2 or otherwise prohibit apportioning a CDCR employee’s heart injury to prior disease. Immediately after Senate Bill No. 899 was enacted, the WCAB would still have been prevented from apportioning injuries falling under the statutory presumptions with non-attribution clauses, but not from injuries falling under the remaining statutory presumptions. As the Third Appellate District summarized after the 2004 reforms:
“The heart trouble presumption applicable to correctional officers contained in section 3212.2 does not contain an anti-attribution clause.… Because the correctional officers’ statute (section 3212.2) does not prohibit the attribution of heart trouble to ‘any disease existing prior to such development or manifestation,’ the employer of a correctional officer may rebut the presumption in a second way. It may present evidence that the heart trouble was attributable to pre-existing disease unrelated to the officer’s employment.” (Jackson v. Workers’ Comp. Appeals Bd. (2005) 133 Cal.App.4th 965, 971-972 (Jackson).)
In 2006, the Legislature enacted statutory language precluding apportionment based on medical findings for all of the injuries covered under each of the public safety based presumptions. Assembly Bill No. 1368, effective January 1, 2007, added a new subdivision (e) to section 4663, providing that the apportionment provisions of that section “shall not apply to injuries or illness covered under” sections 3212 through 3213.2. By making section 4663 inapplicable to injuries presumed industrial under section 3212 et seq., the Legislature effectively prohibited apportionment based on causation. Assembly Bill No. 1368 did not, however, eliminate apportionment based on a public safety workers’ prior compensation award under section 4664.
Section 4663 currently provides:
Notwithstanding the apparent change in eliminating causation-based apportionment to a larger class of public safety employees, the last sentence of Assembly Bill No. 1368, states: “It is the intent of the Legislature that this act be construed as declaratory of existing law.” (Stats 2006, ch. 836, § 2.) The Legislative Counsel’s Digest portion of the bill advised the Legislature:
“Existing workers’ compensation law generally requires employers to secure the payment of workers’ compensation, including medical treatment, for injuries incurred by their employees that arise out of, or in the course of, employment.
“Existing law provides that, in the case of certain state and local public safety members, the term ‘injury’ includes hernia, heart trouble, and pneumonia that developed or manifested itself during a period while the person is in that service. Existing law further establishes a disputable presumption in this regard and prohibits these medical conditions from being attributed to any disease existing prior to the development or manifestation of that medical condition.
“Existing law requires any physician who prepares a report addressing the issue of permanent disability due to a claimed industrial injury to address the issue of causation of the permanent disability.
“This bill would exempt the above medical conditions for certain public safety members and employees from the application of this requirement.”
Notwithstanding the Legislative Counsel’s digest reference only to injuries involving “hernia, heart trouble, and pneumonia,” the legislation also benefited certain public safety employees by prohibiting apportionment to prior instances of cancer and leukemia (§ 3212.1), tuberculosis (§ 3212.5), blood-borne infectious diseases (§ 3212.8), exposure to a biochemical substance (§ 3212.85), meningitis (§§ 3212.9, 3212.10), skin cancer (§ 3212.11), Lyme disease (§ 3212.12), and lower back impairments (§ 3213.2). A subsequent amendment to section 3212.8 now also prohibits apportionment to methicillin-resistent staphylococcus aureus skin infections developed by members of local a sheriff’s office or police or fire department.
Like the Legislative Counsel, the court in Alexander similarly viewed each of the statutory presumptions in sections 3212 through 3213.2 as containing non-attribution clauses that prevented apportionment to preexisting disease. (Alexander, supra, 166 Cal.App.4th at p. 914.) Directly relevant here, the Alexander court questioned whether to apportion a 2005 heart and cardiovascular system injury to a CDCR correctional officer under section 3212.2. Armed with the assumption that section 3212.2 contained a non-attribution clause, the court agreed with the Legislature that the amendment to section 4663, subdivision (e) simply declared existing law at the time of its enactment. Accordingly, Alexander held the WCAB properly declined to apportion the correctional officer’s heart and cardiovascular injury. (Alexander, supra, at p. 920.)
As the court in Saal explained, however, only some of the statutory presumptions contain non-attribution clauses, and like the Third Appellate District’s earlier decision in Jackson we have found none applicable to section 3212.2. Accordingly, we agree with the CDCR insofar as Alexander was inexact in concluding Assembly Bill No. 1368 limited apportionment under section 3212.2 because it declared existing law at the time of its enactment. Both before and after the passage of Senate Bill No. 899, the CDCR received the benefit of apportionment in heart presumption cases.
We nevertheless agree with the WCAB’s decision not to apportion Garza’s heart-related injuries based on the alternate reasoning set forth by the WCJ. By establishing that the restriction against applying the apportionment provisions of section 4663 to any of the section 3212 et seq. presumptions as declarative of existing law, even if inaccurate as applied to the presumptions without non-attribution clauses, the Legislature sufficiently evidenced its subsequent intent not to apply section 4663’s apportionment provisions to any pending cases. “In interpreting the new provisions enacted by Senate Bill No. 899 (2003-2004 Reg. Sess.), our goal is to divine and give effect to the Legislature’s intent.” (Brodie, supra, 40 Cal.4th at p. 1324.) Although the Legislature did not make its intent fully known at the time of enacting Senate Bill No. 899, it has since done so.
The WCAB concluded that section 4663, subdivision (e) -- which prohibited apportionment under that section -- must be applied retroactively “based on the Notes in the Labor Code stating the provision was intended to be declarative of existing law.” As this and other courts have concluded, section 4663 applied retroactively to all cases pending and not yet final at the time of its enactment on April 19, 2004. In the words of the WCJ, “Retroactivity of the 2006 changes is consistent with the retroactivity of the 2004 changes to this section, is the expressed intent of the Legislature, and does not violate any other provision of the Labor Code.”
The CDCR relies primarily on the McClung v. Employment Development Department (2004) 34 Cal.4th 467 (McClung) for the proposition that constitutional safeguards prevent the retroactive application of Assembly Bill No. 1368 because the Legislature has not expressly manifested such an intent. In McClung, the Supreme Court examined whether a 2000 amendment to Government Code section 12940 within the Fair Employment and Housing Act adding language imposing personal liability upon persons the court had previously concluded did not possess such liability was “‘declaratory of existing law’” as the statute provided. (McClung, supra, at p. 470.) After first determining the provision did not declare existing law, the court went on to examine whether it nevertheless applied retroactively. In concluding it did not, the court considered relevant that the “‘declaratory of existing law’” language had actually been inserted in 1987 in regards to a different amendment to the statute. (Id. at p. 476.) As the court explained, “Any inference the Legislature intended the 2000 amendment to apply retroactively is thus far weaker than if the Legislature had asserted, in the 2000 amending act itself, that the amendment’s provisions declared existing law.” (Ibid.) Without such language, the court found “no indication the Legislature even thought about giving, much less expressly intended to give, the amendment retroactive effect to the extent the amendment did change the law.” (Ibid.) Coupled with the constitutional implications in imposing personal liability against action within the law when taken, the court found the amendment “does not apply retroactively to conduct predating its enactment.” (Id. at p. 477.)
Here, however, Assembly Bill No. 1368 contained only two sections. The first section added to section 4663 by providing that its apportionment provisions did not apply when an injury fell within one of the presumptions under section 3212 et seq. The second section of the legislation declared that it “is the intent of the Legislature that this act be construed as declaratory of existing law.” (Stats. 2006, ch. 836, § 2.) Unlike in McClune, here the “declaratory of existing law” language directly referred to the amendment under consideration. Under the Supreme Court’s reasoning, Assembly Bill No. 1368 evidenced the Legislature’s intent that section 4663 apply before its effective date.
Moreover, unlike the statute in McClune that attempted to impose personal liability in employment discrimination cases against particular individuals retroactively, the prohibition against apportioning various injuries to certain public safety workers under section 4663, subdivision (e) only imposes additional liability against the state and local governments. Given the Legislature’s role in providing for the terms of employment of public employees, we must give the Legislature wide latitude in granting benefits to public employees. The same constitutional implications and safeguards against retroactivity in which the CDCR warns against simply do not arise in allocating public resources. Given that Assembly Bill No. 1368 imposes liability only against the state and local governments, “[w]e will not second-guess the Legislature’s objective and design.” (Marsh, supra, 130 Cal.App.4th at p. 917.)
DISPOSITION
The petition for writ of review is denied. Garza’s request for attorney fees under section 5801 is denied.
“(a) Apportionment of permanent disability shall be based on causation.
“(b) Any physician who prepares a report addressing the issue of permanent disability due to a claimed industrial injury shall in that report address the issue of causation of the permanent disability.
“(c) In order for a physician’s report to be considered complete on the issue of permanent disability, the report must include an apportionment determination. A physician shall make an apportionment determination by finding what approximate percentage of the permanent disability was caused by the direct result of injury arising out of and occurring in the course of employment and what approximate percentage of the permanent disability was caused by other factors both before and subsequent to the industrial injury, including prior industrial injuries. If the physician is unable to include an apportionment determination in his or her report, the physician shall state the specific reasons why the physician could not make a determination of the effect of that prior condition on the permanent disability arising from the injury. The physician shall then consult with other physicians or refer the employee to another physician from whom the employee is authorized to seek treatment or evaluation in accordance with this division in order to make the final determination.
“(d) An employee who claims an industrial injury shall, upon request, disclose all previous permanent disabilities or physical impairments.
“(e) Subdivisions (a), (b), and (c) shall not apply to injuries or illnesses covered under Sections 3212, 3212.1, 3212.2, 3212.3, 3212.4, 3212.5, 3212.6, 3212.7, 3212.8, 3212.85, 3212.9, 3212.10, 3212.11, 3212.12, 3213, and 3213.2.” (Underlined portion added by Assem. Bill No. 1368.)