Sabedra v. Workmen's Compensation Appeals Board

Opinion

DRAPER, P. J. Applicant’s petition for writ of review was denied by this court May 22, 1974. The Supreme Court granted petition for hearing, and directed us to issue a writ to be heard before us. We accordingly issued the writ, and heard oral argument upon the merits. The Supreme Court’s order directed our attention to two decisions (Solomon v. Workmen’s Comp. Appeals Bd., 24 Cal.App.3d 282 [100 Cal.Rptr. 899]; Zozaya v. Workmen’s Comp. Appeals Bd., 27 Cal.App.3d 464 [103 Cal.Rptr. 793]). The cited cases deal with the adequacy of orders granting reconsideration under the statute (Lab. Code, § 5908.5) prescribing the form of an order granting reconsideration. Thus only the like issue is before us here.

[430]Section 5908.5 provides: “Any decision of the appeals board granting or denying a petition for reconsideration . . . shall be made by the appeals board and not by a referee and shall be in writing, signed by a majority of the appeals board members assigned thereto, and shall state the evidence relied upon and specify in detail the reasons for the decision.”

Here, findings and award issued upon a referee’s determination that applicant’s permanent partial disability was 78 percent. The employer and its insurance carrier petitioned for reconsideration. The referee recommended denial, but the board granted reconsideration and directed the appointment of an independent medical examiner for evaluation of the nature and extent of applicant’s disability. That medical examiner found applicant not to be limited to sedentary work, but to be precluded only from heavy lifting, repetitive bending and stooping. The board thereafter issued its order fixing applicant’s permanent disability at 36% percent.

Applicant first contends that conflict in the medical evidence is not a proper ground for grant of reconsideration. That contention is flatly rejected by the very cases cited to us by the Supreme Court (Solomon v. Workmen’s Comp. Appeals Bd., supra, 24 Cal.App.3d at p. 286).

The real question raised by applicant is whether the order granting reconsideration does “state the evidence relied upon and specify in detail the reasons for the decision.”

In Solomon, the order granting reconsideration stated only that “ ‘We are not completely satisfied with the medical evidence in the record at present as it pertains to the issues raised in the petition. In our opinion, an independent medical evaluation would .be of assistance to us in resolving these issues.’ ” (P. 287.) In Zozaya the order read: “ ‘The Board, after reviewing the record, is of the opinion that reconsideration should be granted for further evaluation of the nature and extent of the disability sustained by applicant as a result of the injury herein . . .’ ” Each of these orders falls far short of the requirement of section 5908.5 because “it does not apprise the parties and the referee of the basis for reconsideration in order to permit them to understand what new evidence or arguments they should present to the appeals board nor do they assist the reviewing court in ascertaining the principles relied upon by the appeals board.” (Zozaya, supra, 27 Cal.App.3d at p. 471.)