American Can Co. v. Industrial Acc. Commission

• Citation: 196 Cal.App.2d 445,16 Cal.Rptr. 424
• Parties: AMERICAN CAN COMPANY, Petitioner, v. INDUSTRIAL ACCIDENT COMMISSION of the State of California and John L. Cacioppo, Respondents. Civ. 25517.
• Decision Date: 20 October 1961
• Court: California Court of Appeals

Page 424

16 Cal.Rptr. 424

196 Cal.App.2d 445

AMERICAN CAN COMPANY, Petitioner, v. INDUSTRIAL ACCIDENT COMMISSION of the State of California and John L. Cacioppo, Respondents.

Civ. 25517.

District Court of Appeal, Second District, Division 3, California.

Oct. 20, 1961.

O'Melveny & Myers, Philip F. Westbrook, Jr., Roy E. Potts and C. A. Poppleton, Jr., Los Angeles, for petitioner.

Everett A. Corten, San Francisco, and Edward A. Sarkisian, Los Angeles, for respondent Industrial Accident Commission.

William B. Jones, Los Angeles, for respondent John L. Cacioppo.

VALLEE, Justice.

Review of an award of the Industrial Accident Commission. Petitioner American Can Company, permissibly self-insured, seeks to annul the commission's award in favor of respondent John L. Cacioppo, referred to as applicant.

Applicant worked for petitioner as a millwright for some time prior to May 19, 1959. On that date he sustained an industrial injury to his left hip, shoulder, and back. He lost a couple of days from his work because of the injury. Although he reported for work, he was given no work for about six weeks and then was put on light duty. Pursuant to a claim based on that injury, the commission found the injury caused no temporary disability, but did cause a 5 per cent permanent disability, and made its award to that effect. Applicant continued to work full time.

On October 19, 1960 applicant sustained another industrial injury to his back and was totally disabled until February 7, 1961. At the time of his second injury applicant was working as a sealer and stacker of milk cartons. The classification of a millwright is in a much higher occupational group in the commission's rating schedule than is the classification of a sealer. Applicant testified he had worked as a sealer for three days at that time and a half day at a previous time 'when they had to take me off because I couldn't do it and then they placed me back on the job and told me I had to do it.' He further testified it was his understanding that his work as a sealer was temporary and he would have gone back to millwright work. Robert Neyhart, general foreman of the department in which applicant was working at the time of injury, testified applicant 'was a millwright and when there is no longer work in his classification, he is then assigned to work in another classification within a department providing he has enough seniority in that company to work.'

Medical evidence showed applicant had an osteoarthritic condition of the back which was aggravated by the first injury and further aggravated by the second injury. Petitioner voluntarily paid the full maximum indemnity until January 4, 1961, at which time it terminated applicant's temporary disability payments on the basis of a medical report indicating applicant was able to return to work. On that date applicant was laid off.

The commission found applicant sustained the second injury of October 19, 1960 while employed as a millwright and the injury caused temporary total disability from October 20, 1960 to and including February 7, 1961 and temporary partial disability from February 8, 1961. It awarded temporary total disability payments to February 7, 1961; temporary partial disability payments from February 8, 1961 until its further order; medical and legal expenses, and further medical treatment. It denied apportionment of the temporary disability between applicant's pre-existing disabilities and the injury of October 19, 1960.

Petitioner contends liability should have been apportioned between the injury of October 19, 1960 and applicant's pre-existing disabilities. Medical reports without contradiction showed applicant had an osteoarthritic condition of the back prior to the injury of October 19, 1960. There is likewise no conflict in the evidence that applicant sustained a prior injury to his back while in the course and scope of his employment with petitioner and that prior to the injury of October 19, 1960 he had objected to work outside the scope of millwright's duties, protesting that the work was too strenuous for him. On the other hand, there was no evidence that applicant would have been temporarily disabled without the intervention of the injury. The evidence was that he worked full time until the injury of October 1960.

Section 4663 of the Labor Code provides:

'In case of aggravation of any disease existing prior to a compensable injury, compensation shall be allowed only for the proportion of the disability due to the aggravation of such prior disease which is reasonably attributed to the injury.'

In respect to permanent disability, it is a question of fact for the determination of the commission whether an applicant's permanent disability resulted from the injury, including the aggravation effected by the injury on a pre-existing disease, or whether the disability or a part thereof resulted from the normal progress of such a disease. Industrial Indemnity Co. v. Industrial Accident Comm., 95 Cal.App.2d 443, 449-450, 213 P.2d 11. There is no apportionment of disability as between an industrial injury on the one hand and one due to industrially caused aggravation of an employee's pre-existing condition. Ferguson v. Industrial Accident Comm., 50 Cal.2d 469, 477-478, 326 P.2d 145.

The commission asserts section 4663 is not applicable to awards for temporary disability. It argues that temporary disability relates to a healing period and the award is to compensate for wage loss during that period.

Hanna, Law of Employee Injuries and Workmen's Compensation, Vol. 2, p. 272, says:

'The term 'apportionment' is not ordinarily used in reference to disability of a temporary nature. The generally applicable provisions of the workmen's compensation law giving rise to possible apportionment do not specifically mention temporary disability, and they are construed as not authorizing an apportionment of liability for temporary disability in cases of industrial disability superimposed upon a preexisting, but dormant and non-disabling condition. The reason for this rule is that the employer is deemed to take the employee as he finds him at the time of employment and should, therefore, assume full responsibility for wage loss resulting from the aggravation or lighting up of a preexisting condition by industrial injury.'

Petitioner contends the foregoing reasoning is inapplicable to the present case. It attempts to distinguish the facts here from those of the several cases which deny apportionment of liability for temporary disability on the ground that in each of those cases an industrial...