Aliano v. Workers' Comp. Appeals Bd.

Decision Date24 December 1979
CourtCalifornia Court of Appeals Court of Appeals
PartiesGregory Robert ALIANO, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD of the State of California; Canoga Chrysler-Plymouth and Eldorado Insurance Company, Respondents. CANOGA; Eldorado Insurance Company, Petitioners, v. WORKERS' COMPENSATION APPEALS BOARD of the State of California; and Gregory Robert Aliano, Respondents. Civ. 54092, 54095.

Robert Bovshow, Los Angeles, for Gregory Robert Aliano.

Clopton, Penny & Keeney, and Robert M. Penny, Los Angeles, for Canoga Chrysler-Plymouth and Eldorado Ins. Co.

STEPHENS, Associate Justice.

The matter herein involves proceedings before the Workers' Compensation Appeals Board, (hereinafter "WCAB") regarding the workers' compensation claim of Gregory Robert Aliano against his employer, Canoga Chrysler-Plymouth, Inc., (hereinafter "Canoga") which was insured by Eldorado Insurance Company (hereinafter "Eldorado"). Both Aliano and Canoga/Eldorado assert error in the decision of the WCAB.

Aliano contends that the determination by the WCAB of his level of permanent disability resulting from the industrial injury is in error. Canoga/Eldorado contend that (1) the WCAB erred in granting Aliano's petition to reopen his claim, (2) the factors of psychiatric permanent disability as determined by the WCAB are erroneous as they fail to accurately reflect to what extent the alleged industrial condition is "labor disabling," (3) there are other errors in the manner in which the permanent disability was rated; and (4) the WCAB erred in not apportioning more of the permanent disability as not chargeable to Canoga/Eldorado.

We find that the decision of the WCAB to reopen Aliano's claim withstands attack by Canoga/Eldorado. The balance of Canoga/Eldorado's contentions are also rejected. Regarding Aliano's contention, the record reveals clear error by the WCAB in computing Aliano's permanent disability and we thus remand this issue to the WCAB for such further proceedings as are indicated by our opinion herein.


Aliano while employed on July 13, 1972, by Canoga as an automobile mechanic sustained injury arising out of and occurring in the course of said employment. The injury occurred when Aliano was working on an automobile which was raised on a hoist. Aliano dropped a wrench and bent over to pick it up. When he stood up, he hit the side of his head on one of the automobile tires.

In his original decision issued August 8, 1974, the workers' compensation judge (hereinafter "WCJ") found that Aliano had sustained no permanent disability as a result of said injury and was not in need of further medical care for the industrial injury. In these original proceedings the WCJ concluded that Aliano's continued disability was not the result of the industrial injury but rather totally caused by non-industrial viral encephalitis.

Subsequent to the WCJ's original decision, Aliano petitioned to reopen his claim. (LAB.CODE, §§ 54101, 5803, 5804.) In a decision issued March 23, 1978, the WCJ granted Aliano's petition to reopen, and reversing his original decision found that Aliano's continued disability was indeed related to the industrial injury and not to viral encephalitis. In the decision granting reopening, the WCJ awarded Aliano full workers' compensation benefits including temporary disability, permanent disability, reimbursement for self-procured medical treatment for the industrial injury, and further medical treatment to cure or relieve from the effects of said injury. The WCAB affirmed the WCJ's decision granting reopening with the exception of a purported error in the percentage of permanent disability.

Because of the importance of the procedural history of the case, we set forth separately in detail the record, including the medical history and evidence, As it existed before the WCJ at the time of his original decision and at the time of the decision granting reopening. Thus, we discuss the record pertaining to the original proceedings as it Actually existed before the WCJ when he rendered his original decision and not as to documentary evidence produced subsequent thereto in conjunction with Aliano's petition to reopen.

A. Original Proceedings Before the WCJ

The industrial injury occurred on Thursday, July 13, 1972. Aliano did not report the accident to any of his supervisors the day it occurred. He finished out the day's work and returned to work the next day.

The first medical care Aliano sought after the industrial injury was on Saturday, July 15, 1972, from his family physician, Leslie H. Wolfe, M.D. Dr. Wolfe's medical records, however, state Aliano had "persisting low back pain palpable spasm of L-3/L-S . . ." but made no mention of any head trauma. Dr. Wolfe did, however, issue a report dated July 25, 1972, wherein he stated that he had first examined Aliano for the injury on July 18, 1972. In said report Dr. Wolfe described the injury as having occurred when Aliano "hit head on auto which was raised on the hoist. He walked right into it." Dr. Wolfe's diagnosis was "concussion with post concussion syndrome." Dr. Wolfe suggested a neurological examination.

When Aliano returned to work on Monday, July 17, 1972, he reported the injury to a supervisor at Canoga and stated that he felt severe pressure and pain in the back of his head. Canoga sent Aliano to the West Park Hospital. At West Park Hospital Aliano was examined by G. Bartosh, M.D., whose first report describes the accident as "Possible injury to neck. (headaches) hit it into car tire at work." Dr. Bartosh's initial diagnosis was "Concussion syndrome, severe headache."

At the referral of Dr. Wolfe and with the permission of Eldorado, Aliano was examined on July 18, 1972, by Marvin A. Korbin, M.D., a specialist in neurological surgery. Dr. Korbin recorded a history of complaints by Aliano "of severe headache and nausea since an injury at work on Thursday, July 13, 1972." Dr. Korbin's diagnostic impression was "1. Post-concussion state. 2. No evidence of increasing intracranial pressure." Dr. Korbin recommended that Aliano "be hospitalized for observation and other objective tests so that we might rule out the possibility of an internal hemorrhage." In accordance with this recommendation, Aliano was hospitalized at Northridge Hospital.

Dr. Korbin reported on July 28, 1972, that while at Northridge Hospital numerous tests were performed and "a lumbar puncture revealed a small number of white blood cells suggesting perhaps that he had had a mild encephalitis." Dr. Korbin observed that Aliano's "cause is very typical of that problem, particularly in that he had fever, headache, somnilence and vomiting." Dr. Korbin concluded: "[I]t seemed quite obvious that he had suffered injuries to his head more severe than the one that seemed to initiate his problem. P I believe that after reviewing all of the history, hospitalization, laboratory reports and his course that this patient has suffered a case of mild viral encephalitis and is improving."

In a follow-up report of August 4, 1972, Dr. Korbin reported that Aliano "seems to be improving from his recent bout of what we assume to be a mild viral encephalitis."

Gilbert Saliba, M.D., performed a consultative evaluation of Aliano at Northridge Hospital on August 8, 1972. In his report, dictated on August 10, 1972, Dr. Saliba stated in pertinent part:


"1. Viral encephalitis, probably equinencephalitis or enteroviral infection. Rule out post infectious encephalitis, rule out herpes simplex, encephalitis.

"Doubt collagen disease, amoebic meningoencephalitis or leptospirosis.

"2. Inappropriate ADA secretion due to encephalitis.

"3. History [four years prior] of fibroma, left 10th rib, post resection."

"RECOMMENDATIONS DIAGNOSTIC: Acute and convalescent serum to State Lab for viral encephalitis studies. Also would send CSF and stool for viral study, if the lab can properly handle and transport these speciments.

"L.E. Prep, times two and ANA.

"Leptospiral agglutinins."

Dr. Korbin after a re-examination on October 20, 1972, reported that Aliano "noted that his headache was somewhat more severe and he complains of dizziness, loss of coordination and some neck discomfort." Dr. Korbin, somewhat perplexed by Aliano's continued problems, stated in his report: "I could find no evidence of increasing intracranial pressure nor of neurological deficit to suggest a mass lesion. P I have assumed that his problem has been secondary to a viral encephalopathy but I cannot understand the long duration. Consequently, it may be necessary to consider re-hospitalization for other objective tests if he is not markedly improved in the near future."

On November 22, 1972, Aliano was examined by Ernest E. Parks, M.D. and Deward W. Jones, M.D. at the Santa Fe Memorial Hospital.

Dr. Parks in his report of November 27, 1972, stated that Aliano's condition was compatible with "right occipital neuralgia" but observed that a review of Aliano's past medical records was imperative as there was the question of encephalitis which would be unrelated to the industrial injury. Thus, Dr. Parks was, in his words, "rather inconclusive" but stated that Eldorado had advised him the prior records would be provided to him. Dr. Parks, however, issued no supplemental reports and thus there is no indication Dr. Parks ever reviewed the prior medical records.

Dr. Jones' report of November 25, 1972, is equally equivocal as that of Dr. Parks. While Dr. Jones agreed with Dr. Parks that viral encephalitis would be unrelated to the industrial injury, he actually rendered no opinion on whether Aliano had viral encephalitis. In this regard, all Dr. Jones stated was as follows:

"If this man's diagnosis of encephalitis was confirmed by his Northridge Hospital studies his condition the...

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