Argonaut Ins. Co. v. Industrial Acc. Commission

• Decision Date: 09 December 1964
• Citation: Argonaut Ins. Co. v. Industrial Acc. Commission, 41 Cal.Rptr. 628, 231 Cal.App.2d 111 (Cal. App. 1964)
• Court: California Court of Appeals
• Parties: ARGONAUT INSURANCE COMPANY and Arntz Brothers, Petitioners, v. INDUSTRIAL ACCIDENT COMMISSION of the State of California and Early C. Harries, Respondents. Civ. 22109. . California

Page 628

41 Cal.Rptr. 628

231 Cal.App.2d 111

ARGONAUT INSURANCE COMPANY and Arntz Brothers, Petitioners, v. INDUSTRIAL ACCIDENT COMMISSION of the State of California and Early C. Harries, Respondents.

Civ. 22109.

District Court of Appeal, First District, Division 1. California.

Dec. 9, 1964.

Hanna & Brophy, San Francisco, for petitioners.

Everett A. Corten, Robert A. Borgen, Watson A. Garoni, San Francisco, for respondents.

BRAY, Justice. ^*

Petitioners Argonaut Insurance Company and its assured Arntz Brothers, seek annulment of a permanent disability award to Early C. Harries, and Employee of Arntz Brothers.

QUESTIONS PRESENTED.

1. Does the evidence support the finding that the continuing traumatic insults during a prolonged period eventuated in applicant's disability?

2. Should liability have been apportioned over a ten-year period instead of from July 1, 1955 to August 7, 1963?

RECORD.

Respondent Harries was employed as a laborer by Arntz Brothers for approximately ten years. His employment was terminated on August 7, 1963 by reason of a back disability incurred during employment. Argonaut Insurance Company was the employer's workmen's compensation insurer for the period July 1, 1955 through April 1, 1962. Thereafter, Employers' Liability Assurance Corporation, Ltd., was the employer's workmen's compensation carrier.

On March 19, 1964 Findings and Award issued holding that respondent Harries had sustained a compensable injury while employed between July 1, 1955 and August 7, 1963, and that liability should be prorated 80% to Argonaut Insurance Company and 20% to the Employers' Liability Assurance Corporation, Ltd. Petitioner, Argonaut Insurance Company, filed a petition for reconsideration, and the decision after reconsideration affirmed the 80% liability of the petitioner. In the opinion and order after reconsideration, the panel stated that it was of the opinion that respondent had suffered a continuous injury, and in the findings of fact recited that the employment period was July 1, 1955 to August 7, 1963. ¹

Petitioner Argonaut now seeks a writ of review contending that: (1) the Commission exceeded its jurisdiction in awarding compensation for an alleged traumatic injury against a compensation carrier who covered an employer during a period when the employee had no symptoms whatsoever; and (2) if the employee's work activities did constitute a cumulative injury, the Commission erred in assessing liability during a portion of the period of employment rather than to the entire period of employment.

Petitioner contends that the evidence fails to show any connection between the long period of employment and the onset of disability.

Employers' has not petitioned for review of the apportionment against it.

During the period of his employment applicant worked as a 'laborer,' 'construction laborer' or 'construction worker.' Over that period he engaged from time to time in heavy labors including heavy lifting and other efforts consistent with his employment as a construction laborer. ² On or about July 23, 1963, Harries noticed pain in the calf of his left leg and hip (his left thigh). This pain forced him to quit on August 7, 1963. He then visited his doctor and had x-rays taken. The onset of pain was not sudden and there was no specific incident of pain associated with his employment. On August 8 he was hospitalized. He was in traction for twelve days and then returned home. On September 16 and 17 he attempted to work, but because of pain around his left ankle he returned to his doctor. In October he had a myelogram. He was then operated on and certain intervertebral discs were removed. He returned to work December 10, 1963 and has continued to work since.

Prior to the disablement of August 7, 1963 applicant had no history of back trouble. The referee found that applicant's disability resulted from his employment as a laborer for Arntz Brothers and that it resulted from an continuous insult to his back caused by the demands on a construction worker. Liability was then apportioned between the carriers as hereinbefore set forth for the respective periods for which they insured the employer.

Argonaut's petition for reconsideration from the Findings and Award specifically urged that it was charged with liability for a period of employment wherein it was not the compensation carrier, that is the time prior to July, 1955. Also that there were no specific incidents of injury which would make the injury identifiable as to the facts and the time involved.

1. Cause of Applicant's Disability.

All the medical evidence agrees that applicant suffered a disc pathology, and that the disc pathology was the result of progressive degeneration of the discs due to an ageing process. The question is whether or not the applicant's labors as a construction laborer aggravated this disc pathology. The medical evidence consists of reports of five physicians and the records of St. Joseph's Hospital. While there is a conflict in the evidence as to whether applicant's work contributed to the disc pathology, there is substantial evidence to the effect that it did. Therefore, under the well-known rule applicable to review of Industrial Accident Commission determinations, we are bound by the Commission's findings. (Douglas Aircraft, Inc. v. Ind. Acc. Com. (1957) 47 Cal.2d 903, 905, 306 P.2d 425.) Dr. Specker, a witness called by Employers' Liability admitted 'that the occupational activity of a construction laborer possesses a somewhat greater potential for aggravating a degenerating back than does non-occupational activities.' He further conceded that 'the cumulative effects of the man's daily occupation and work could aggravate a condition such as this man's back,' although he said, 'I can't dispute the feasability of it having occurred but I do not see the clinical evidence that it did.' He finally admitted that he did not '[A]damantly specifically rule out occupation as some degree of causation' of applicant's back disability. He was asked, 'Would it be a fair statement, then, Doctor, of your opinion that each day that he worked as a construction laborer contributed more or less equally to the pathology? ' He replied, 'I think that would be approximately true.' Dr. Taylor reported, 'I do not believe I can definitely stated that the cumulative effects of his work was the cause of his back disability. However, there is reasonable medical probability that his work was at least part of the cause creating his back disability.'

While Dr. Palmer, petitioner's witness, opined that applicant's disc condition was not related to his employment, the above opinion of Drs. Taylor and Specker constituted substantial support of the Commission's finding that applicant's employment as a construction laborer from July 1, 1955 to August 7, 1963, aggravated the underlying disc pathology which required operative procedure for correction. Applicant's work history permits a reasonable inference of continuous strain aggravating applicant's back eventuating in the disability found herein.

There need not be one single identifiable traumatic experience before a finding of industrial injury can be made. Cumulative injury is recognized in Fireman's Fund Indem. Co. v. Ind. Acc Com. (1952) 39 Cal.2d 831, 250 P.2d 148, where the employee suffered a cerebral vascular accident which the court found to have been precipitated by the aggravation of an existing hypertension by exposure to 65 days of tension in labor negotiations. The court said, 'This point [the stroke] is reached through the cumulative effect of each day's strain and tension. Separately one day's strain may be slight, but when added to the strains which have preceded, it becomes a destructive force. * * * Therefore, it must be concluded that the stroke here was the result of one continuous, cumulative injury rather than a series of individual injuries.' (P. 834, 250 P.2d p. 150.) The analogy to the work-incurred back injuries in the case at bench is apparent, despite the difference in physical disabilities, and in the length of time before the particular disability occurred. Fireman's Fund held that where the disability was the result of one continuous injury the carrier which ceased being the insurer of the employer prior to the disability was jointly and severally liable with the carrier at the time of the disability.

In Beveridge v. Industrial Acc. Com. (1959) 175 Cal.App.2d 592, 346 P.2d 545, this court found that the employee's back injury was due to the cumulative effect of work effort aggravating a prior condition. There was a back injury some five years prior to the disabling injury and between the two injuries the workman had recurrent episodes of pain in his low back and left leg.

Although Dr. Specker opined that applicant's lumbar intervertebral disc syndrome was not contributed to or aggravated by his daily work, he agreed that the 'microtraumata' (small trauma) of occupational activity of Harries as a construction worker could make daily contribution to the acceleration of the pathological process. Dr. Taylor stated 'there is reasonable medical probability that his work was at least part of the cause creating his back disability.' Applicant's work history permits a reasonable inference of continuous strain aggravating applicant's back, which eventuated in disability.

From a combination of Dr. Specker's testimony that applicant's daily word could provide a continuous cumulative injury to applicant's disc pathology and Dr. Taylor's testimony in effect, that it did, and from the rulings in Fireman's Fund Indem. Co. v. Ind. Acc. Com., supra, 39 Cal.2d 831, 835, 250 P.2d 148 and Beveridge v. Industrial Acc. Com., supra, 175 Cal.App.2d 592, 346 P.2d 545, to the effect that where the disability is the result of one continuous cumulative injury the award for such disability must be apportioned among the insurance carriers covering the workman's employer or employers...