(W.C.A.B. Nos. SJO226456, SJO228891 & SJO235420).
The opinion of the court was delivered by: Bamattre-Manoukian, Acting P.J.
CERTIFIED FOR PUBLICATION
Respondent Manuel Aguilar sustained specific and cumulative injuries to both of his knees, shoulders and wrists, and to his right ankle while working as an auto washer for petitioner Hertz Corporation (Hertz). Due to Aguilar's injuries and his inability to read and write English, the workers' compensation judge (WCJ) found him to be non-feasible for vocational rehabilitation and thus permanently totally disabled. Respondent Workers' Compensation Appeals Board (the Board) affirmed the WCJ's decision and award. Hertz petitions for review of the Board's decision, contending that an employer should not be liable for permanent total disability benefits when an injured worker's inability to participate in rehabilitation is due, in part, to non-industrial causes.
In analyzing Hertz's claim we first determine that Aguilar's permanent disability should be rated using the 1997 rating schedule rather than the 2005 rating schedule. We then determine that a finding of permanent total disability is not appropriate in this case.
Under our revised worker's compensation system, even when the 1997 rating schedule is used, an employer is liable for only the portion of an injured worker's permanent disability that is directly caused by the industrial injury. The finding of permanent total disability in Aguilar's case is based in part on the finding that vocational rehabilitation is not feasible, and the finding of non-feasibility is due in part to pre-existing non-industrial factors. Therefore, we conclude that Hertz is not liable for that portion of Aguilar's permanent disability that is caused by pre-existing non-industrial factors. We will reverse the decision of the Board and remand the matter for a redetermination of Aguilar's permanent disability rating.
Aguilar was born in Mexico in 1955, and lived there until approximately 1980, when he came to this country. In 1984 or 1985, he obtained employment with Hertz as an auto washer, regularly working 80 hours a week. He was working in that capacity when he sustained a specific injury to his left knee on March 21, 2000, a cumulative injury to both wrists and shoulders and his right ankle from January 29, 2001 through January 29, 2002, and a specific injury to his right knee on November 4, 2001. He received medical treatment, including surgery, for his injuries, and temporary disability indemnity during broken periods beginning May 8, 2001. He last worked on January 29, 2002. He filed three separate applications for adjudication of his workers' compensation claim for permanent disability indemnity, the first for the left knee injury (SJO226456), the second for the cumulative shoulder, wrist and ankle injuries (SJO228891), and the third for the right knee injury (SJO235420). He also requested vocational rehabilitation services.
On August 15, 2005, Dr. Gordon Levin submitted a report finding that Aguilar's injuries were permanent and stationary, so Aguilar was referred to The Simon Group for vocational rehabilitation services. On January 20, 2006, Aguilar's rehabilitation counselor at The Simon Group issued a report stating in pertinent part: "Mr. Aguilar presents as someone who describes himself as in chronic pain, both with respect to the bilateral upper extremities and both of his legs. Therefore, from a physical standpoint, even the positions I felt might be physically appropriate for Mr. Aguilar, such as Security Officer or School Crossing Guard, did not appear to be work he felt he could perform. The other complication, of course, is that Mr. Aguilar does not read and write in English. Even for positions such as Crossing Guard, the following was indicated: 'Ability to read, write, and speak English.' Thus, from a physical standpoint, given Mr. Aguilar's presentation of his chronic pain and subsequent limitations, and the fact that even very light duty jobs such as Security Officer do require the ability to read and write in English, at this point, I do not believe he is feasible for vocational rehabilitation services."
At a hearing on September 18, 2007, independent certified rehabilitation counselors James Westman and Lei Huff testified, and various medical and rehabilitation reports were admitted into evidence. The submitted reports of the parties' qualified medical evaluators (QMEs), Dr. Levin and Dr. Carson, agreed that Aguilar suffered both specific and cumulative injuries and had substantial work preclusions. According to the WCJ, both QMEs indicated a permanent disability rating of around 60 percent.
Dr. Carson found that Aguilar "is precluded from working at or above shoulder height and has lost 50 percent of his pre-injury capacity for lifting with the upper extremities." "[T]here is a prophylactic preclusion from heavy lifting and also preclusions from climbing, walking over uneven ground, squatting, kneeling, crouching, crawling, pivoting, or other activities of comparable physical effort with respect to both lower extremities." "[Aguilar] is not able to return to his full duties at Hertz and is a Qualified Injured Worker . . . ." Dr. Levin found that "the limitations regarding [Aguilar's] left knee should be no squatting, no kneeling, no prolonged walking, and no heavy lifting." "Aguilar should have no repetitive over-shoulder-level work with either shoulder." The limitation as to his left wrist "should include no heavy gripping and no repetitive use of the left hand." Dr. Levin further found that Aguilar will not be able "to return to his normal job as a car detail person."
Aguilar testified in English at the hearing with some assistance from a Spanish-language interpreter. After discussions on some of the issues in the case, the WCJ granted the parties' requests to submit letter briefs prior to submission of the matter. Both parties filed their briefs on September 21, 2007, and the WCJ issued his findings and award on September 28, 2007. The WCJ found Aguilar to be 100 percent permanently disabled and awarded him life-time indemnity payments of $490 per week and further medical treatment.
In his opinion in support of the award, the WCJ stated that he agrees with QMEs Dr. Levin and Dr. Carson that Aguilar is "significantly disabled with respect to his knees and upper extremities." The WCJ found that the two independent rehabilitation experts who testified at the hearing agreed that Aguilar's "educational background, his native intelligence, and his level of skill in the English language" "together with [his] physical impairment" render him "permanently unemployable." "It is proper to apportion disability brought about by non-industrial causes. The normal variations in native aptitude found among human beings are not the same as disability; that is part of the meaning of LeBoeuf [v. Workers' Comp. Appeals Bd. (1983) 34 Cal.3d 234 (LeBoeuf)]. An employer takes the employee as he finds him. With all his perceived shortcomings, Mr. Aguilar was able to compete in the open labor market before his injury. As a result of his injury, that ability is gone."
Hertz petitioned for reconsideration of the permanent disability award, arguing in part that Aguilar's limited English language skills, virtual illiteracy even in his native Spanish, and his lack of academic training and aptitude should be reflected by providing him with an appropriate partial, rather than total, permanent disability rating. Hertz contended that "where an otherwise eligible industrially-injured worker cannot benefit from provision of rehabilitative services due to the effects of the injuries, LeBoeuf does indeed 'remain good law' to the extent that a non-scheduled permanent disability rating even including a 100% total permanent disability award is appropriate. However, where, as here, the Applicant's inability to return to any employment even with provision of the full panoply of rehabilitation services results from factors unrelated to the effects of the injury, such an award is inappropriate." Hertz cited Espinoza v. Workers Compensation Appeals Bd. (1994) 59 Cal.Comp.Cases 753 [writ denied] (Espinoza), in support of its claim.
In his answer to the petition for reconsideration, Aguilar argued that the finding of 100 percent permanent disability was a correct and proper application of the principles set forth in LeBoeuf. He argued that "the primary reasons" that he cannot benefit from vocational rehabilitation "are the multiple and severe factors of permanent disability resulting from the work injuries," and that his "education, aptitudes and language skills were only 'secondary factors.' "
In his report and recommendation on the petition for reconsideration, the WCJ found that the testimony of both rehabilitation experts established that Aguilar is non-feasible for vocational rehabilitation and permanently unemployable. "[Hertz] is attempting to obtain apportionment to factors which are not disability. All of the disability awarded in this case is due to the industrial injury; but for the injury, there would be no disability at all. [Hertz's] protestations to the contrary are akin to the regret one might feel after a pat on the head of the proverbial fellow with the eggshell-thin skull. [Aguilar's] deficiencies may have rendered him especially vulnerable to physical disability, but they did not cause it." Accordingly, the WCJ recommended that the petition for reconsideration be denied.
On November 16, 2007, the Board denied reconsideration "for the reasons stated in [the WCJ's] report which we adopt and incorporate."
On May 7, 2008, we granted Hertz's petition for writ of review of the Board's decision.
Hertz contends here, as it did below, that an employer should not be liable for total permanent disability benefits where the determination that an injured worker is not feasible for vocational rehabilitation is due, in part, to non-industrial causes. Hertz argues that there is a distinction between a non-feasibility finding due to the physical effects of a worker's industrial injury and the inability to benefit from rehabilitation services for reasons unrelated to that injury. "[W]here an otherwise eligible industrially-injured worker cannot benefit from provision of rehabilitative services due to the effects of the injuries, LeBoeuf does indeed 'remain good law' to the extent that a non-scheduled permanent disability rating even including a 100% total permanent disability Award is appropriate. However, where, as here, the Applicant's ...