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CA - NOTEWORHY PANEL DECISIONS
Copyright 2007 by Matthew Bender & Company, Inc.
Celeste Wixom, Applicant v. City of Concord, Claims Management, Inc., City of Livermore, Innovative Claims Solutions, Inc., Defendants
W.C.A.B. Nos. SFO 0410896, WCK 0056416-- WCAB Panel: Chairman Miller, Commissioners Caplane, O'Brien
Workers' Compensation Appeals Board (Panel Decision)
2007 Cal. Wrk. Comp. P.D. LEXIS 43
Opinion Filed May 22, 2007
PUB-STATUS: Publication Status: CAUTION: This decision has not been designated a "significant panel decision"
by the Workers' Compensation Appeals Board. Practitioners should proceed with caution when citing to this panel decision and should also verify the subsequent history of the decision. WCAB panel decisions are citeable authority, particularly on issues of contemporaneous administrative construction of statutory language [see Griffin v. WCAB (1989)
209 Cal. App. 3d 1260, 1264, fn 2, 54 Cal. Comp. Cases 145]. However, WCAB panel decisions are not binding precedent, as are en banc decisions, on all other Appeals Board panels and workers' compensation judges [see Gee v. Workers' Comp. Appeals Bd. (2002) 96 Cal. App. 4th 1418, 1425 fn. 6, 67 Cal. Comp. Cases 236]. LexisNexis editorial consultants have deemed this panel decision noteworthy because it does one or more of the following: (1) Establishes a new
rule of law, applies an existing rule to a set of facts significantly different from those stated in other decisions, or modifies, or criticizes with reasons given, an existing rule; (2) Resolves or creates an apparent conflict in the law; (3) Involves a legal issue of continuing public interest; (4) Makes a significant contribution to legal literature by reviewing
either the development of workers' compensation law or the legislative, regulatory, or judicial history of a constitution,
statute, regulation, or other written law; and/or (5) Makes a contribution to the body of law available to attorneys,
claims personnel, judges, the Board, and others seeking to understand the workers' compensation law of California.
DISPOSITION: Disposition: Applicant's Petition for Reconsideration is granted, the Findings, Award, and Order of
June 23, 2006, is affirmed, except that Finding 18 is amended, paragraph (f) of the Award in SFO 0410896 is rescinded
and deleted, and a new Order, applicable in both case numbers, is added.
HEADNOTE: Costs--Witnesses--Vocational Rehabilitation Expert--WCAB, granting applicant's petition for
reconsideration, held that vocational rehabilitation expert's preparation, attendance, and testimony at trial was
reasonable and necessary and that Labor Code § 5811 provided statutory authority for reimbursement to applicant of reasonable and necessary medical-legal costs incurred in prosecuting contested claim, when WCAB
found that in both of present cases applicant raised contention of permanent total disability, that prior to trial
vocational [*2] rehabilitation expert had expressed opinion that applicant was permanently totally disabled,
that fee of expert vocational rehabilitation witness was reasonable cost in context of issues before WCJ, and that
cost must be shared equally between defendants in these two cases. [See generally Hanna, Cal. Law of Emp. Inj. and
Workers' Comp. 2d § 27.01[8][a], [b].]
OPINIONBY: Opinion By: Chairman Joseph M. Miller
OPINION: OPINION AND DECISION AFTER RECONSIDERATION
On September 11, 2006, the Workers' Compensation Appeals Board (Appeals Board) granted reconsideration to further study the factual and legal issues. This is our decision after reconsideration.
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2007 Cal. Wrk. Comp. P.D. LEXIS 43, *
In the Findings, Award and Order of June 23, 2006, the workers' compensation administrative law judge (WCJ) found
that applicant, while employed by defendant City of Concord during the employment period of January 1991 to August
21, 1997, sustained industrial injury to her bilateral upper extremities including the arms, elbows, hands, wrists and fingers, resulting in 16% permanent disability (SFO 410896); and that applicant, while employed by defendant City of
Livermore over the employment period of July 1998 to November 1999, sustained [*3] industrial injury to her bilateral
upper extremities, including the arms, elbows, hands, wrists and fingers, resulting in 7% permanent disability (WCK
056416). In SFO 0410896 only, the WCJ found that applicant and her attorney incurred fees and costs to have Jeff
Malmuth prepare, appear, and testify as an expert vocational rehabilitation witness, and that pursuant to Labor Code
section 5811, the City of Concord is liable for 50% of the costs and fees incurred by Mr. Malmuth to prepare for, attend,
and present his testimony at trial.
Applicant sought reconsideration of the WCJ's decision, contending, in substance, that the WCJ erred or abused his
discretion in ordering the City of Concord to pay only 50% of the costs and fees of applicant's vocational rehabilitation
expert, and that the WCJ's decision does not comport with established case law relevant to Labor Code section 5811.
The City of Concord filed an answer.
The factual background of this case is not in dispute. Applicant brought consolidated cumulative trauma claims
against the City of Concord and the City of Livermore. In the Concord [*4] case, the City of Concord retained Jeff
Malmuth as a qualified rehabilitation representative (QRR) to evaluate applicant for vocational rehabilitation. At Malmuth's request, applicant was given a functional capacity evaluation by Marc Rabideau, a work-hardening expert. The
test results confirmed that applicant was unable to participate in any sustained retraining program and unable to work,
even on a part-time basis. Malmuth agreed with Rabideau's conclusion. This conclusion raised the prospect of applicant
being found totally permanently disabled pursuant to LeBoeuf v. Worker's Comp. Appeals Bd. (1983) 34 Cal.3d 234 [48
Cal. Comp. Cases 587].
The cases went to trial over a period of a year. Malmuth was on call (by applicant) for each of the trial settings, and he
ultimately testified on the last day of trial that applicant was totally disabled. The WCJ disagreed, however, relying on
the reports of Dr. Siu, the Agreed Medical Evaluator (AME). Dr. Siu found substantial apportionment based on the effects of non-industrial auto accidents. The WCJ awarded 7% permanent disability against Livermore and 16% permanent disability against Concord.
[*5]
Regarding the WCJ's award only against defendant City of Concord for 50% of the ''expert witness'' fees of Jeff Malmuth, the WCJ concluded that the Malmuth testimony did not constitute a medical-legal evaluation under Labor Code
section 4064(a). The WCJ then considered Labor Code section 5811, subdivision (a) of which provides that ''[i]n all
proceedings under this division before the appeals board, costs as between the parties may be allowed by the appeals
board.'' Utilizing the discretion signified by the word ''may'' in the statute, the WCJ concluded that 50% of Malmuth's
fees against Concord was reasonable. Applicant, however, contends that it was an abuse of discretion for the WCJ to
award only 50% of the fees. While the WCJ states in his Report that Malmuth's fees were not specifically raised as an
issue in applicant's claim against the City of Livermore, the issue of total permanent disability was raised in both case
numbers.
California's appellate courts have held that section 5811 provides statutory authority for the reimbursement to an applicant of medical-legal costs incurred in prosecuting [*6] a contested claim (see, e.g., Adams v. Workers' Comp. Appeals Bd. (1976) 18 Cal.3d 226, 231; State Compensation Insurance Fund v. Workers' Compensation Appeals Board
(McDowell) (1977) 76 Cal. App. 3d 136, 138; Ferguson v. Workers' Compensation Appeals Board (1990) 33 Cal. App.
4th 1613, 1619), and that an applicant may be reimbursed for medical-legal costs even though the applicant is unsuccessful in his or her claim. (Subsequent Injuries Fund v. Industrial Acc. Com. (Roberson) (1963) 59 Cal.2d 842, 844;
Beverly Hills Multispecialty Group, Inc., v. Workers' Compensation Appeals Board (Pinkney) (1994) 26 Cal. App. 4th
789, 802. See also, Johnson v. Workers' Compensation Appeals Bd. (1984) 37 Cal.3d 235, 241: Section 5811 authorizes
the awarding of costs incurred by an employee in answering a petition for writ of review filed by a defendant when the
petition is summarily denied by the Court of Appeal. n1
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n1 These are, [*7] however, limitations on the costs that may be reimbursed under section 5811. In addition to the
fact that such costs are discretionary ( Sims v. Workers' Compensation Appeals Bd. (1995) 60 Cal. Comp. Cases 1126
(writ den.), attorney's fees, for example, which are awarded under conditions specified in the Labor Code (see Lab.
Code, §§ 4903, 5710, 5801, 5813, 5814, 5814.5), are not available as ''costs'' under section 5811. ( Holzer-Reyes v.
Workers' Compensation Appeals Bd. (1998) 63 Cal.Comp.Cases 84 (writ den.); Santa Maria High School District v.
Workers' Compensation Appeals Bd. (1995) 60 Cal.Comp.Cases 649 (writ den.).)
----------------------------------EndFootnotes----------------------------------
Under LeBoeuf v. Workers' Compensation Appeals Bd. (1983) 34 Cal. 3d 234, 242-243 and Gill v. Workers' Compensation Appeals Bd. (1985) 167 Cal. App. 3d 306, 307, [*8] the Appeals Board must consider evidence regarding the
preclusion of an employee from participating in vocational rehabilitation, including testimony and reports of rehabilitation counselors. (See also, Zenith National Insurance Co. v. Workers' Compensation Appeals Bd. (Smith) (1978) 43
Cal.Comp.Cases 254 (writ den.) [costs assessed against defendant for the reasonable fee of vocational rehabilitation
expert's testimony]; Los Angeles Unified School District v. Workers' Compensation Appeals Bd. (Kilgore) (1984) 49
Cal.Comp.Cases 631 (writ den.) [applicant's attorney awarded costs for fee paid to former disability evaluator called as
expert witness to rebut testimony of permanent disability rating specialist]; Whitley v. Diamond Int. Corp. (1985) 13
Cal.Workers'Comp.Rptr. 97 [defendant liable for costs of testimony and report of vocational rehabilitation counselor].)
While rehabilitation expert witnesses may be warranted and the costs allowable in a situation involving LeBoeuf, a
vocational rehabilitation expert's input is not necessarily a reasonable cost under all circumstances, particularly if it has
no relevance [*9] to the issue before the WCJ. That is, since allowing costs between the parties under Labor Code section 5811 is discretionary, it must be determined whether or not a particular cost being requested is reasonable under the
circumstances of a particular case, and if so, what the reasonable value of that cost is, as well as in what case or cases
such costs should be allowed or divided.
In this case, the first issue is whether or not Malmuth's fees as a vocational rehabilitation expert witness are reasonable
in the context of the issues before the WCJ, and if so, which defendant or defendants are liable. The Minutes of Hearing
of November 18, 2004 (p. 3) indicate that in both SFO 0410896 (defendant Concord) and WCK 056416 (defendant Livermore), applicant raised the contention ''that there is a presumption of 100 percent for loss of use of both hands.'' Furthermore, since two vocational experts (Rabideau and Malmuth) initially concluded that applicant was not employable
in the open labor market, there was a reasonable possibility of a 100% permanent disability finding. In other words,
these cases presented a LeBoeuf issue. Therefore, we conclude [*10] that Malmuth's fees as an expert vocational witness are properly allowable in both cases, under the discretion afforded by section 5811. In fact, it was virtually a professional duty for applicant's attorney to call Malmuth as a witness, in view of the opinion of non-employability both
Malmuth and Rabideau had given earlier on in this matter. Since total permanent disability was raised in both cases and
they were tried together and permanent disability was awarded as a result of both employments, we conclude that Malmuth's expenses must be shared equally between the City of Concord and the City of Livermore.
Regarding the reasonableness and necessity of Malmuth's fees, we note that according to the WCJ's Opinion on Decision, he allowed Malmuth's ''costs and fees he incurred in preparing for, attending and testifying at the trials of these
cases.'' We agree that Malmuth's preparation, attendance and testimony at trial was reasonable and necessary. However,
there is no indication in the record of Malmuth's actual costs and fees. If there is a dispute over the reasonableness and
necessity of the actual amounts, they may be adjusted by the parties or determined by the WCJ absent [*11] adjustment.
For the foregoing reasons,
IT IS ORDERED, as the Appeals Board's decision after reconsideration, that the Findings, Award and Order of June
23, 2006 is AFFIRMED, except that Finding 18 is AMENDED as follows, paragraph (f) of the Award in SFO
0410896 is RESCINDED and DELETED, and the ORDER set forth below, applicable in both case numbers, is
ADDED to said decision:
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FINDINGS
''18. In WCK 0056416 and SFO 04108966 [sic], the applicant and her attorney have incurred fees and costs to have
Jeff Malmuth prepare, appear, and testify as an expert vocational rehabilitation witness.''
ORDER
Pursuant to Labor Code section 5811, defendants, the City of Livermore and the City of Concord, are ordered to pay
50% each of the total costs and fees incurred by Mr. Malmuth to prepare for attend, and present his testimony at the trial
of these cases. The parties will adjust the amount that defendants will pay to Mr. Malmuth informally, with jurisdiction
reserved to the WCJ to determine the amount absent adjustment.
WORKERS' COMPENSATION APPEALS BOARD
Chairman Joseph [*12] M. Miller
I concur,
Commissioner Ronnie G. Caplane
Commissioner William K. O'Brien
Legal Topics:
For related research and practice materials, see the following legal topics:
Administrative LawAgency AdjudicationDecisionsGeneral OverviewEvidenceTestimonyGeneral OverviewWorkers'
Compensation & SSDIAdministrative ProceedingsJudicial ReviewGeneral Overview
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