Allied Compensation Ins. Co. v. Industrial Acc. Commission

• Decision Date: 15 January 1963
• Citation: 27 Cal.Rptr. 918,211 Cal.App.2d 821
• Parties: ALLIED COMPENSATION INSURANCE CO., a corporation, Petitioner, v. INDUSTRIAL ACCIDENT COMMISSION of the State of California and Edward Etkins, Respondents. Civ. 26683.
• Court: California Court of Appeals Court of Appeals

Page 918

27 Cal.Rptr. 918

211 Cal.App.2d 821

ALLIED COMPENSATION INSURANCE CO., a corporation, Petitioner, v. INDUSTRIAL ACCIDENT COMMISSION of the State of California and Edward Etkins, Respondents.

Civ. 26683.

District Court of Appeal, Second District, Division 2, California.

Jan 15, 1963.

Rehearing Denied Feb. 14, 1963.

Clopton & Penny, Robert M. Penny, Robert C. Kunz, Los Angeles, for petitioner.

Everett A. Corten, San Francisco, Edward A. Sarkisian, Los Angeles, for respondents.

HERNDON, Justice.

In this proceeding we are called upon to review an award of the Industrial Accident Commission in favor of respondent employee. Petitioner, the insurance carrier for the employer, urges that the award of the commission must be annulled because it was (1) completely in excess of the commission's powers; (2) manifestly unreasonable; and (3) wholly unsupported by any substantial evidence.

Our review of the record discloses that there is no conflict in the evidence insofar as it relates to the facts which are determinative of the controlling issues here presented. The employee, Edward Etkins, was employed on December 1, 1960, as a dress cutter. All the medical experts who testified were in unanimous agreement that at that time a giant cell tumor was growing in his left ankle bone, although he was not then aware of its presence. Further, all the medical experts agreed that tumors of this type continue to grow without regard to external factors and gradually weaken the bone structure until their presence ultimately, and of necessity, does become known. From the very inception, the growth process is irreversible, and the only method of treatment is surgical removal.

On December 1, 1960, the employee twisted his left ankle while reaching for a pattern when he placed his foot partially off, and partially on, the edge of a one-inch floor board. He reported this incident to his employer and was directed to a physician. X-rays were taken during this initial visit and again on December 5, 1960. The injury was diagnosed as a sprain perhaps involving a chipped bone. The employee continued working while receiving whirlpool and ultra-sonic treatments until December 23, 1960. At this time, he voluntarily discontinued the treatments and failed to respond to a letter dated January 3, 1961, wherein the treating physician advised his to return if he had not recovered. Although the existence of the tumor was plainly apparent to tumor experts in the first X-rays taken, its presence was overlooked by the attending physician.

The employee continued working until April 4, 1961, when pain in his ankle again caused him to return to the company doctor. Thereupon an appointment was made for him to be examined in another facility on April 14, 1961. However, the employee, motivated by purposes of personal convenience, decided to seek the examination from a private medical facility, and did so on April 5, 1961. Further X-rays were taken which clearly revealed the existence of the tumor, which had enlarged substantially since the original X-rays were taken on December 1 and 5, 1960. Therefore, on April 13, 1961, the employee entered the hospital where the tumor was surgically removed and a bone graft was made. This period of hospitalization commencing on April 13, 1961, was the first time lost from work by the employee. He was thereafter disabled during the process of the bone fusion, and the commission found that this condition had not become fixed at the time of its award.

On May 24, 1961, the employee filed his application with the commission based upon the injury sustained December 1, 1960. Determination of liability for temporary disability from April 14, 1961, was sought as well as for permanent disability, medical treatment, medical costs and litigation expense. On May 9, 1962, an essentially identical application was filed, except that the injury was claimed to have been caused by the employee's being 'on his feet all through the working day resulting in aggravation of tumor.' The California Department of Employment filed a 'Notice and Request for Allowance of Lien' based upon its payments to the employee of disability benefits for a period commencing April 22, 1961.

Following extended hearings, an order was made on June 19, 1962, wherein the employee was awarded temporary disability indemnity on his initial claim, payable 'beginning April 14, 1961, to and including June 11, 1962, and continuing thereafter.' The Department of Employment was allowed its lien against said payments in the sum of $1,690. No reimbursement was allowed for the surgical or other treatments procured by the employee prior to May 18, 1961, but reimbursement for self-procured medical treatment procured thereafter was awarded and further medical treatment 'consisting of periodic observations' was ordered. It was further ordered that the employee take nothing on his second application, since all determinations required had been disposed of in the order made on the initial claim. However, a finding of fact was made that the employee had suffered 'an injury consisting of aggravation of tumor to the left foot and leg, arising out of and occuring in the course of His employment * * *.'

Respondent commission, in its answer to the petition herein, has been content to assert in support of the award that there was competent medical evidence to support a finding that the accident of December 1, 1960, 'aggravated' the pre-existing condition. There was conflict in the testimony given by the medical experts as to whether or not the employee had suffered a fracture of his ankle bone as the result of the accident of December 1, 1960, and whether, assuming such a fracture, this condition would have affected in any degree the normal growth of the tumor. There also was some conflict as to what effect, if any, walking on the ankle might have had on the development of the tumor. We recognize, of course, that it is the province of the commission as the trier of the facts to resolve any material conflicts in the evidence and that it may accept the evidence of and or more experts in preference to that of others. (Liberty Mutual Insurance Co. v. Industrial Accident Com., 33 Cal.2d 89, 94, 199 P.2d 302.)

This latter principle, however, is not controlling in the present factual context. As we have previously indicated, all the medical experts agreed that on November 30, 1960, the day before the accident, the employee was as much in need of the very operation ultimately performed as he was at any time thereafter. Further, it was agreed that the disability of the employee was entirely attributable to the performance of the required operation and there was no evidence that this disability was increased by any fashion by the industrial accident. In other words, the injury sustained on December 1, 1960, considered apart from any 'aggravating' effect it may have had upon the tumor, was not disabling and had completely healed prior to April 13, 1961. The 'aggravation' of the tumor neither caused the need for an operation, (it already existed), nor does it appear that it in any degree increased the disability resulting therefrom.

Thus, the following testimony was given by the medical expert whose opinion that tumors of this type are affected by traumas is relied upon by the respondent commission in support of its award: 'Q. All right. Let's go into this angle. You feel that this fracture, if it did occur, if there was a fracture, and if it did follow injury, had no effect on the overall disease process in this case? A. Well, I think it accounts for the tumor getting larger, and for--it's been my experience when there is enough trauma to produce bleeding that these tumors tend to enlarge. They enlarge. The tumor is filled with big blood vessels and they are benign tumors. Benign tumors are not too significant a tumor if they remain benign. I think they enlarge as a result of hemorrhage into them. A. And what effect would that have? A. Enlargement on the x-ray. Q. What effect would that have on the overall condition? A. It would have no effect on it at all except that the tumor is a benign tumor in the one that we are dealing with, but your fracture brought this hemorrhage on, probably. The trauma did bring it on. Q. As Further: 'Q. Well, Doctor, from your experience, then, these tumors are going to expand in any event, trauma or no trauma, is that right? A. That is right. Q. They are irreversible unless medically treated? A. That's right.' (Emphasis added.)

I understand it them, if we assume that there is injury significant enough to cause a fracture, and the fracture is significant enough to cause hemorrhage into the tumor, the only overall effect is it makes the tumor larger for x-ray purposes? A. The symptoms which came on with enlargement would have to be considered, but you are going to have a weaker bone as it occurs also. You are going to have more discomfort in walking on it if it is a weight-bearing thing, but otherwise the net result of the treatment of the case is what I was meaning when this changes the appearance of the bone on the x-ray. Q. In other words, this sequence of events as you described it is going to have absolutely no effect on the net result of the cost? A. , don't think so.' (Emphasis added.)

Finally: 'Q. In other words, if you had seen such an X-ray [showing the tumor as it appeared on December 1, 1960, but not indicating a fracture] the day before this injury, your recommendation still would have been to remove this giant cell tumor, would it not? A. I think so, yes. Q. And that giant cell tumor definitely had to be removed November 30th, did it not? In other words, if you had seen the man on November 30th, the day before this accident, and diagnosed his condition, your recommendation still would have been on that date to remove the tumor? A. I am afraid I have to say yes. * * * Q. Doctor, do you treat giant cell tumors by Ace bandages? A. I...