Nickelsberg v. Workers' Compensation Appeals Board

BROUSSARD, J.

Dissenting. The Legislature’s 1978 amendment of Labor Code section 46561 was expressly intended to allow workers in Nickels-berg’s position to obtain temporary total disability indemnity while recovering from surgery. The majority does not honor that intent, but rather seizes upon an interpretation of that amendment, supported in neither the statutory language nor its history, that defeats the amendment’s purpose. I respectfully dissent.

I.

There are cases in which we are constrained by statute to accept outcomes that are manifestly unjust. In those cases our only recourse is to implore the *303Legislature to enact a remedy when a judicially sanctioned remedy lies beyond the courts’ powers. In the instant case, however, the Legislature took action to relieve injured workers of a burden the statutes had otherwise placed upon those workers.

It is beyond question that the Legislature, in amending section 4656, considered the plight of workers in exactly the position in which Nickelsberg today finds himself. (See maj. opn., ante, at p. 295.) A legislative staff analysis accompanying the amendment specifically stated: “Proponents [of the amendment] contend that often surgery or other treatment is required years after an injury to remove [surgically] implanted devices . . . .” (Assem. Ways and Means Com., Staff Analysis of Sen. Bill No. 1851 (1977-1978 Reg. Sess.) as amended Aug. 14, 1978, p. 1.) One agency, commenting on the pending bill, noted: “There are . . . cases which create a hardship situation where an industrial injury results in the need for surgery more than 5 years after the date of the injury. Due to the arbitrary time limit [of the prior statute], the employee is then only entitled to receive medical benefits and is precluded from receiving temporary disability indemnity resulting from the hospitalization and surgery. Although occurring rarely, these situations create an obvious hardship that is difficult to defend.” (Agr. & Services Agency, Sen. Industrial Relations Com. Enrolled Bill Rep. and Recommendations to Governor on Sen. Bill No. 1851 (1977-1978 Reg. Sess.) as amended Aug. 14, 1978, p. 1.)

It is rare that legislative history will give us such explicit guidance in the interpretation of statutes and, in this instance, I am bewildered by the majority’s suggestion that this history is “contradicted” or otherwise invalid. The “other portions of the legislative history” cited by the majority do not support the majority’s suggestion that temporary total disability indemnity was intended to be limited to cases involving workers who had suffered continuous temporary total disability. Rather, the reports relied upon by the majority each stated that indemnity for temporary total disability would continue for as long as the temporary total disability continues. These statements are indubitably true. Yet the majority italicizes certain phrases as if to suggest that the words in each instance were intended to emphasize that the Legislature wished to limit recovery to temporary total disability suffered continuously.2 The amended statute deletes all reference to temporary total disability occurring after 1978, and therefore cannot be read to support the proposition that, for temporary total disability to be paid more than five *304years after the date of injury, the disability must be suffered continuously. (See § 4656.) Moreover, such an interpretation is fundamentally inconsistent with the legislative history recognizing that, “where an industrial injury results in the need for surgery more than 5 years after the date of the injury,” an injured employee is placed in a “hardship situation” because that employee “is precluded from receiving temporary disability indemnity resulting from the hospitalization and surgery.”3

II.

In many cases, as in this case, future medical treatment is awarded in anticipation of major surgery at an indeterminate time in the future. Section 4656 was amended, not to allow any instance of temporary total disability to be awarded more than five years after an injury, but for the particular case when the disability arises as a result of the medical treatment provided through the initial award. Because the disability is, in my view, inseparable from the treatment, I believe that an award of future medical treatment implicitly carries with it a provision for temporary total disability indemnity should that medical treatment be disabling.4

Preliminarily, we must note that the workers’ compensation laws’ provisions for injured employees’ medical treatment are unequivocal: employees are entitled to whatever treatment is needed to cure and relieve from the effects of the industrial injury. Thus, article XIV, section 4 of the California Constitution requires “full provision for such medical, surgical, hospital and *305other remedial treatment as is requisite to cure and relieve from the effects of such injury . . . .” (Italics added.) Section 4600, which establishes the treatments to which injured workers are entitled, also requires employers to provide a broad range of treatments: “Medical, surgical, chiropractic, and hospital treatment, including nursing, medicines, medical and surgical supplies, crutches, and apparatus . . . reasonably required to cure or relieve from the effects of the injury shall be provided by the employer.” (Italics added.)

In order to cure and relieve himself or herself from the effect of the injury, the injured employee has no option but to follow doctor’s orders after surgery. The treatment may be essentially affirmative—e.g., to undergo rigorous physical therapy—or it may be essentially negative—e.g., to avoid strenuous physical activity. In this instance, Nickelsberg was required to absent himself from work while recuperating from the treatments. As a policy matter, it should be clear that full provision for remedial treatment of an industrial injury should not be artificially limited to medical expenses alone, but rather should provide the necessary resources for an employee disabled by medical procedures to fully recuperate from those procedures.

The majority indulges in an academic exercise that evades the issue and, accordingly, sheds no light on whether temporary total disability can be paid to an employee pursuant to an award of future medical treatment. Typically, medical treatment and disability indemnity are considered separate and distinct elements of compensation. (See maj. opn., ante, at p. 294.) Thus, for the purposes of assessing penalties (Burton v. Workers’ Comp. Appeals Bd. (1980) 112 Cal.App.3d 85 [169 Cal.Rptr. 72]) or assuring that an employee with asbestosis may get medical treatment before disability manifests itself (J. T. Thorp, Inc. v. Workers’ Comp. Appeals Bd. (1984) 153 Cal.App.3d 327 [200 Cal.Rptr. 219]), courts properly draw a distinction between these classes of benefits. However, the fact that they are different classes of benefits does not determine the issue that has been placed squarely before the court today: May temporary total disability indemnity that results directly from covered medical treatment be awarded incident to an award of future medical treatment?

An injured worker sorely needing major surgery more than five years after the date of his or her injury will be assured that the actual cost of the treatment will be covered, yet under the majority’s holding he or she cannot be compensated under an existing award (at least, without an express reservation of jurisdiction) for his or her time out of work.5 For treatments *306like Nickelsberg’s, the prospect of being off work for several months without compensation may prove prohibitively expensive. Some workers will have no alternative but to forgo surgery—at least, for as long as is possible.

When the worker’s interest is thus served by assuring that he or she can receive temporary total disability indemnity for disability sustained as the result of, and incident to, an award of future medical treatment, the award should be interpreted to include indemnity. In other instances, both the courts and the Legislature have seen fit to award temporary total disability incident to medical treatment, in spite of the general premise that they are different classes of benefits. (See § 4600 [allowing for compensation of medical expenses and one day of temporary total disability incident to a medical examination]; Caldwell v. Workmen’s Comp. App. Bd. (1969) 268 Cal.App.2d 912, 917 [74 Cal.Rptr. 517] [allowing for an award of one day of temporary total disability for time lost incident to a medical diagnosis of alleged industrial injury].) Thus, the courts and the Legislature have acknowledged that medical treatment is a practical impossibility if an employee cannot afford to forgo the time off from work. That same rationale persuades me that our workers’ compensation statutes should provide Nickelsberg compensation for the time he needs to recuperate from surgery, as well as for the costs of the treatment itself.

In another context, a rigid distinction between “classes of benefits” might be supported in policy; here, however, we are obligated to interpret the relevant statutes in the injured worker’s favor. Section 3202 commands that the provisions of this code “shall be liberally construed by the courts with the purpose of extending their benefits for the protection of persons injured in the course of their employment.” This provision is not a rule which courts in their discretion may limit or disregard, but is a statutory mandate. (See, e.g., Industrial Indem. Exch. v. Ind. Acc. Com. (1948) 87 Cal.App.2d 465, 467 [197 P.2d 75].) When “a provision of the Act is susceptible of an interpretation either beneficial or detrimental to an injured employee we are called upon ... to adopt the construction beneficial to such employee.” (Liptak v. Industrial Acc. Com. (1926) 200 Cal. 39, 42 [251 P. 635].) Hundreds of reported cases support and apply this principle.* **6 My analysis *307of the issues yields the inevitable conclusion that we must adopt the interpretation of the statutes at issue that would afford Nickelsberg an opportunity to collect temporary total disability indemnity.

III.

For the reasons discussed above, I would reverse the judgment of the Court of Appeal.

Mosk, J., and Kennard, J., concurred.

All further statutory references are to the Labor Code unless otherwise indicated.

The legislative history in support of Nickelsberg’s position also expressly noted that the additional cost to the state, if Senate Bill No. 1851 were passed, would be negligible. This material refutes the majority’s speculation that the cost of Senate Bill No. 1851, 1977-1978 Regular Session, if implemented as discussed in the legislative history, necessarily would be significant. (See maj. opn., ante, at p. 296.)

It is important to note that the majority never affirmatively rejects the interpretation of the amendment to section 4656 proffered by Nickelsberg, but merely assert that “the legislative history of Senate Bill No. 1851 does not conclusively support [Nickelsberg’s interpretation]” (maj. opn., ante, at p. 297, italics added) in light of the “contradictory” history discussed in the majority opinion. Accordingly, a court interpreting section 4656 in the future (e.g., to determine whether a workers’ compensation judge may reserve jurisdiction to award temporary total disability) must consider how the legislative history presented by Nickelsberg, as well as that presented by the majority, affects the question presented to that court.

The majority, in making a policy argument in favor of its position, grossly misstates the position that Nickelsberg advocates: “the implications of [Nickelsberg’s] proposed interpretation are broad. Settlements of workers’ compensation claims often include an award of future medical care. Under Nickelsberg’s interpretation, each of these cases would implicity also include an award of future temporary total disability. As a result, employers would be liable for this further temporary total disability indemnity, although it was not contemplated in the original award.” (Maj. opn., ante, at pp. 296-297.)

In fact, Nickelsberg only argues that every award of future medical treatment implicitly carries with it temporary total disability indemnity resulting from that future medical treatment. Such an interpretation comports with the legislative intent in amending section 4656, and would have far less impact than the straw man attacked by the majority, i.e., an award of future medical treatment that includes an award for any occurrence of temporary total disability, including disability totally unrelated to medical treatment provided pursuant to an injured worker’s award.

The majority opinion does not rule out the possibility that a worker’s disability arising from medical treatment may in itself constitute a new, compensable injury for the purposes of *306the workers’ compensation laws. (Cf. Rodgers v. Workers’ Comp. Appeals Bd. (1985) 168 Cal.App.3d 567, 571-574 [214 Cal.Rptr. 303] [injury incurred in the course of employer-provided rehabilitation constitutes a new, compensable injury].)

There are, of course, circumstances in which a court is not justified in construing a statute in favor of the injured worker. A limiting construction may be required by the “unmistakable language of a statute” (Earl Ranch, Ltd. v. Industrial Acc. Com. (1935) 4 Cal.2d 767, 769 [53 P.2d 154]), and the “Legislature’s intent as expressed in the statute” cannot be ignored (Ruiz v. Industrial Acc. Com. (1955) 45 Cal.2d 409, 413 [289 P.2d 229]; see Fuentes v. Workers’ *307Comp. Appeals Bd, (1976) 16 Cal.3d 1, 8 [128 Cal.Rptr. 673, 547 P.2d 449]). Yet this is not such a case. There is no unmistakable language and no statutory expression of legislative intent to justify denying an injured employee in Nickelsberg’s position temporary total disability indemnity. At best, the most the majority’s argument does is put forward an alternative construction of section 4656, and, given two reasonable constructions of that statute, this court is required by law to adopt the construction which will permit recovery of benefits by the injured worker.