Amico v. Workmen's Comp. Appeals Bd.

CourtCalifornia Court of Appeals
Citation43 Cal.App.3d 592,117 Cal.Rptr. 831
PartiesSam AMICO, Petitioner, v. WORKMEN'S COMPENSATION APPEALS BOARD of the State of California et al., Respondents. Civ. 34197.
Decision Date02 December 1974

Page 831

117 Cal.Rptr. 831
43 Cal.App.3d 592
Sam AMICO, Petitioner,
WORKMEN'S COMPENSATION APPEALS BOARD of the State of California et al., Respondents.
Civ. 34197.
Court of Appeal, First District, Division 1, California.
Dec. 2, 1974.

Page 833

[43 Cal.App.3d 595] Ted Akulian, Offices of Peter E. Livanos, Jr., Castro Valley, for petitioner.

[43 Cal.App.3d 596] Barry J. Williams, Oakland, for Cal. Applicants' Attorneys Assn.

T. Groezinger, James J. Vonk, George S. Bjornsen, Glenn W. Groenewold, San Francisco, for respondent State Compensation Ins. Fund.

SIMS, Acting Presiding Justice.

In these proceedings petitioner seeks review of the decision after reconsideration of the Workmen's Compensation Appeals Board holding, contrary to the findings and award of the referee, that the award for petitioner's acknowledged permanent disability, rated at 45 1/2 percent, should be reduced to 32 percent by apportioning 30 percent to the combined effects of surgery, necessitated by an injury in 1950 for which petitioner was compensated, and an alleged natural progression of a degenerative condition. Petitioner and amicus curiae on his behalf assert that since the applicant's uncontradicted testimony establishes that he had achieved complete rehabilition from a prior injury, the board cannot, in the absence of qualified evidence to the contrary, order apportionment to the prior injury. The fundamental question is whether the decision of the appeals board is supported by substantial evidence. A review of the record indicates that it is not. The decision and award after reconsideration must be annulled.


On May 12, 1950, as the result of an industrial accident the petitioner, who was born February 4, 1921, and spent all of his adult life as a carpenter, suffered an injury to the lower back for which he received an award based on a permanent disability rating of 37 3/4 percent, together with an award for further medical treatment. From 1950 to 1955 he had problems with his back and though he worked from time to time he suffered pain and was in the hospital practically every year. As a result of an incident which occurred October 28, 1955, he was awarded temporary disability for an injury which aggravated his existing back condition. In 1956 he overcame his prior fear and accepted the recommendation of a laminectomy which was performed at the expense of the 1950 employer's insurer. After the operation he was off work for six months on order of the operating physician. He returned to work and engaged in general carpenter work for 15 [43 Cal.App.3d 597] years. He felt good after the operation and regretted he had not had surgery immediately after the first injury. He testified that between returning to work after the 1956 surgery and the subsequent injury of March 21, 1972, which is the subject of these proceedings, he suffered no disability, had no difficulty in getting work because of his previous back injury, and had no pain which made his work more difficult for him, and that although he lost time during that period because of rain and layoffs between jobs, he lost no time during that period as a result of the prior back injury.

At the hearing before the referee it was stipulated that the petitioner sustained a compensable injury to his back, right knee and a right hernia on March 21, 1972, during the course of his employment as a construction carpenter. The referee found that the injury resulted in permanent disability rated 45 1/2 percent. After reviewing the reports of the three doctors who reviewed the petitioner's back condition, he disregarded the conclusions of two that apportionment should be made and made an award predicated on the full rating

Page 834

of existing disability. 1 The board in its decision after reconsideration concluded that the petitioner's rehabilitation was not complete, that 30 percent of his subsequent disability was attributable to the effects of the prior surgery and natural progression, and that the award should be reduced to that for a 32 percent disability rating. 2

The rules to be applied by this court in determining the propriety of the action of the appeals board recently have been collated in Lamb v. [43 Cal.App.3d 598] Workmen's Comp. Appeals Bd. (1974) 11 Cal.3d 274, 113 Cal.Rptr. 162, 520 P.2d 978, as follows: 'First. 'Although the employee bears the burden of proving that his injury was sustained in the course of his employment, the established legislative policy is that the Workmen's Compensation Act must be liberally construed in the employee's favor (Lab.Code, § 3202), and all reasonable doubts as to whether an injury arose out of employment are to be resolved in favor of the employee. (Lundberg v. Workmen's Comp. App. Bd., 69 Cal.2d 436, 439, 71 Cal.Rptr. 684, 445 P.2d 300) This rule is binding upon the board and this court. (Id. at p. 439, 71 Cal.Rptr. 684, 445 P.2d 300)' (Garza v. Workmen's Comp. App. Bd. (1970) 3 Cal.3d 312, 317, 90 Cal.Rptr. 355, 358, 475 P.2d 451, 454.) (Italics added.)

Second. ' (A)lthough the board is empowered to resolve conflicts in the evidence (citations), to make its own credibility determinations (citations), and upon reconsideration to reject the findings of the referee and enter its own findings on the basis of its review of the record (citations), nevertheless, any award, order or decision of the board must be supported by substantial evidence In the light of the entire record (Lab.Code, § 5952; LeVesque v. Workmen's Comp. App. Bd., 1 Cal.3d 627, 635, 83 Cal.Rptr. 208, 463 P.2d 432)' (Garza v. Workmen's Comp. App. Bd., supra, 3 Cal.3d 312, 317, 90 Cal.Rptr. 355, 358, 475 P.2d 451, 454.) (Italics added.) The foregoing standard is not met 'by simply isolating evidence which supports the board and ignoring other relevant facts of record which rebut or explain that evidence.' Id. at p. 317, 90 Cal.Rptr. (355) at p. 359, 475 P.2d (451) at p. 455.

Third. 'As a general rule, the board 'must accept as true the intended meaning of (evidence) both uncontradicted and unimpeached.' (LeVesque v. Workmen's Comp. App. Bd., supra, 1 Cal.3d 627, 639, 83 Cal.Rptr. 208, 216 463 P.2d 432, 440; McAllister v. Workmen's Comp. App.

Page 835

Bd., supra, 69 Cal.2d 408, 413, 71 Cal.Rptr. 697, 445 P.2d 313; see Wilhelm v. Workmen's Comp. App. Bd., supra 255 Cal.App.2d 30, 33, 62 Cal.Rptr. 829.)' (Garza v. Workmen's Comp. App. Bd., supra, 3 Cal.3d 312, 317--318, 90 Cal.Rptr. 355, 359, 475 P.2d 451, 455.) (Italics added.)

Fourth. When a referee's finding of compensable injury is supported by solid, credible evidence, it is to be accorded great weight by the Board and should be rejected only on the basis of contrary evidence of considerable substantiality. (Garza v. Workmen's Comp. App. Bd., supra, 3 Cal.3d 312, 318--319, 90 Cal.Rptr. 355, 475 P.2d 451: Greenberg v. Workmen's Comp. App. Bd., (1974) 37 Cal.App.3d 792, 798--799, 112 Cal.Rptr. 626.)' (11 Cal.3d at pp. 280--281, 113 Cal.Rptr. at pp. 166, 520 P.2d at pp. 982.)

Before examining the doctor's reports and other evidence in the light of the foregoing principles it is necessary to highlight the legal issues governing the question of apportionment.


Section 4663 of the Labor Code provides: 'In case of aggravation [43 Cal.App.3d 599] 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.'

'It is settled that the section must be read in the light of the rule that an employer takes the employee as he finds him at the time of the employment. Accordingly, when a subsequent injury lights up or aggravates a previously existing condition resulting in disability, liability for the full disability without proration is imposed upon the employer, and the appeals board may apportion the disability under the section 'only in those cases in which part of the disability would have resulted, in the absence of the industrial injury, from the 'normal progress" of the preexisting disease. (Citations.)' (Ballard v. Workmen's Comp. App. Bd. (1971) 3 Cal.3d 832, 837, 92 Cal.Rptr. 1, 4, 478 P.2d 937, 940. See also Granado v. Workmen's Comp. App. Bd. (1968) 69 Cal.2d 399, 401, 71 Cal.Rptr. 678, 445 P.2d 294; Zemke v. Workmen's Comp. App. Bd. (1968) 68 Cal.2d 794, 796, 69 Cal.Rptr. 88, 441 P.2d 928; Berry v. Workmen's Comp. App. Bd. (1968) 68 Cal.2d 786, 789, 69 Cal.Rptr. 68, 441 P.2d 908; Redmond v. Workmen's Comp. Appeals Bd. (1973) 36 Cal.App.3d 302, 307, 111 Cal.Rptr. 530; Fowler v. Workmen's Comp. Appeals Bd. (1972) 22 Cal.App.3d 756, 760, 99 Cal.Rptr. 609; Skinner v. Workmen's Comp. App. Bd. (1969) 269 Cal.App.2d 905, 908--909, 75 Cal.Rptr. 314; Spillane v. Workmen's Comp. App. Bd. (1969) 269 Cal.App.2d 346, 350, 74 Cal.Rptr. 671; and Pacific Employers Ins. Group v. Workmen's Comp. App. Bd. (1966) 247 Cal.App.2d 102, 108--109, 55 Cal.Rptr. 176.)

As has been noted the petitioner testified that he was completely asymptomatic between the time the returned to work following the 1956 operation and his injury in 1972. The referee accepted this testimony and found there was no preexisting disability to apportion. The only evidence tending to contradict the testimony of the petitioner are statements in Dr. Cappeller's reports in which he indicates that the defendant gave a history of occasional loss of time from work. 3 In this connection

Page 836

the petitioner testified that Dr. [43 Cal.App.3d 600] Cappeller had asked him if he had lost any time from work between surgery in 1956 and the 1972 injury, but that he had not asked him the reasons for his loss of time, which, in fact, was not the result of his prior back injury. There was no attempt to clear up this discrepancy by further examination of Dr. Cappeller. Dr. Miller, who, as an independent medical examiner appointed by the referee, examined the petitioner after he had testified, reports a...

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