Beaty v. Workers' Comp. Appeals Bd.

• Decision Date: 26 April 1978
• Citation: 80 Cal.App.3d 397,144 Cal.Rptr. 78
• Court: California Court of Appeals Court of Appeals
• Parties: IRA G. BEATY, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD of the State of California, City of Los Angeles, Legally Uninsured, Respondents. Civ. 52107.

Page 78

144 Cal.Rptr. 78

80 Cal.App.3d 397

IRA G. BEATY, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD of the State of California, City of Los Angeles, Legally Uninsured, Respondents.

Civ. 52107.

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

April 26, 1978.

Lewis & Marenstein, and Richard T. Unitan, Los Angeles, for petitioner.

Burt Pines, City Atty., H. John Wittorff, Asst. City Atty., and William G. Lorenzetti, Deputy City Atty., for respondent City of Los Angeles.

COBEY, Acting Presiding Justice.

Petitioner, Ira G. Beaty, contends that an off-the-job accident is industrially related since it was the proximate result of a prior industrial injury. The appeals board held against Beaty. We annul the appeals board's decision as the issues involved need further consideration by the appeals board in light of our opinion herein.

FACTS

Beaty while employed by the City of Los Angeles ("City") as a police officer on August 13, 1972, sustained injury arising out of and occurring in the course of his employment to his left minor upper extremity. ¹ In June 1974, Beaty was awarded 5 3/4 per cent permanent disability for the Industrial Injury. ² Beaty asserts that the injury he sustained in a fall from a ladder on April 19, 1975, while engaged in non-job related activities is compensable on an industrial basis because the residuals of the Industrial Injury were a contributing factor to the fall.

As a result of the Industrial Injury, Beaty underwent several left shoulder surgeries. The last of those was in September 1973. Thereafter Beaty did return to work for City but continued to have problems with his shoulder which included pain ranging from a constant dull ache to a sharp pain. Beaty found that if he rotated his shoulder in a particular manner it would produce a sharp pain. Nevertheless, Beaty in the spring of 1974 found his shoulder was well enough for him to go water skiing.

In November 1974, Beaty went to see Joseph T. Culverwell, M.D. because of shoulder discomfort and because of his concern about "catching and grinding" in the shoulder; Dr. Culverwell placed Beaty on medication for about two weeks.

Beaty then went to see Alonzo J. Neufeld, M.D. beginning in February 1975. Dr. Neufeld, in his report of March 4, 1975, described Beaty's shoulder problem as follows:

"This is a condition which can be compared to osteoarthritic changes and is usually the result of either aging or repeated trauma. It is, however, a condition which under proper exercise can be brought up to a reasonable level of proficiency and kept at that level if the exercise program is continued. Overstress, however, will produce a return of the pain and (an) increase in disability, I would advise that his activities be kept within his capacity. I have talked over . . . (an) exercise program with him and we have agreed on the idea of doing his exercise within those ranges of motion of the shoulder which are not painful at this time. ³ I think that this will enable him to toughen up the shoulder joint to the point where he should be able to perform satisfactorily."

According to Beaty, no physician placed any specific restrictions on him because of the shoulder. Rather Beaty claims all he was told was to do only what he thought he was capable of doing and to discontinue activities that caused discomfort.

As previously noted, Beaty's fall from the ladder occurred on April 19, 1975, when he was helping his father in the construction of a swimming pool. ⁴ Beaty was on a ladder, working with a piece of conduit. He was using a crowbar with his left arm to pry a piece of conduit out of a wall. Beaty's arm was at shoulder level. This activity lasted for about thirty seconds. According to Beaty, the rotating movement of his left shoulder caused a very severe pain in his left shoulder and in spontaneous unthinking reaction to the pain Beaty made a move to his left shoulder with his right hand. As a result thereof, according to Beaty, he lost his balance and fell into the the swimming pool excavation. He was thereby injured.

Beaty thereafter petitioned to reopen the award regarding the Industrial Injury claiming the Subsequent Accident was a proximate result thereof.

Beaty obtained a medical evaluation from Paul Leonard, M.D. In his report of October 13, 1975, Dr. Leonard connected the Subsequent Accident to the disability stemming from the Industrial Injury:

"This man suffered an exacerbation of shoulder problems. The shoulder was in a weakened status from prior industrial trauma, although it had substantially been functioning fairly well. Sudden severe pain in the left shoulder while doing non-industrially related activities occurred because of the weakened shoulder and would probably not have occurred with a 'normal' or not previously injured musculoskeletal structure. The pain caused him to fall, suffering injury to the flank and back. . . ."

Dr. Culverwell, one of the aforementioned treating physicians, opined Beaty now had a rotator cuff tear of the left shoulder but took a different position from that of Dr. Leonard as to the connection between the Subsequent Accident and Industrial Injury. Dr. Culverwell stated in his report of February 18, 1976:

"I . . . must conclude that his fall from the scaffold was the etiology of his new (rotator cuff) tear. In your request you asked me to comment on (Dr. Paul Leonard's) discussion as to his conclusions.

It is difficult to establish the relationship between a weakened shoulder and this new injury, and as Dr. Leonard points out the shoulder had substantially been functioning fairly well from the accident of 1972. I do not believe I could put a cause and (effect) relationship between (Mr. Beaty's) shoulder 'weakness' and his current accident as this is too difficult to establish on a cause and (effect) basis. I fully realize that Mr. Beaty is attempting to establish that kind of cause and (effect) relationship in order to reopen his case. I had no reason to believe that the strength of the arm was that diminished to allow (Mr. Beaty) to fall, but can only comment that the present injury was not noted in the previous arthrogram." (Italics added.)

The workers' compensation judge held that the Subsequent Accident was unrelated to the disability from the Industrial Injury. The judge felt that the fall was not an "exacerbation" as characterized by Dr. Leonard. The judge noted Dr. Culverwell believed that "the strength of (Beaty's) arm was not so diminished to establish a cause and effect relationship between his arm weakness and the specific injury."

The Board denied Beaty's petition for reconsideration in a two-to-one panel decision. The dissenting commissioner felt that Beaty should have been referred to an independent medical examiner to clarify the questions involved.

DISCUSSION

To establish the City's liability the Industrial Injury need not be the exclusive cause of the Subsequent Accident but only a contributing factor to it. So long as the Industrial Injury was a contributing factor to the Subsequent Accident, liability is established on an industrial basis. (State Comp. Ins. Fund v. Ind. Acc. Com. (Wallin), 176 Cal.App.2d 10, 17, 1 Cal.Rptr. 73; see also McGlinn v. Workers' Comp. Appeals Bd. (1977), 68 Cal.App.3d 527, 534, 137 Cal.Rptr. 326; 2 Hanna, Calif. Law of Employee Injuries and Workmen's Compensation (2d rev. ed. 1977) § 8.03(6)(h); 1 Herlick, Calif. Workers' Compensation Law Handbook (2d ed. 1978) § 10.31.)

In Wallin, the injured sustained an industrial injury to his left eye. While still suffering from the aftereffects of the industrial injury, the injured amputated one of his fingers while using an electric saw. The finger injury was proximately caused by the eye injury. The appellate court held proximate causation in compensation cases requires only that the industrial injury be a contributing factor to the subsequent accident and that therefore the finger injury was compensable on an industrial basis.

Mere carelessness or contributory negligence of the injured does not break the causative connection unless such intervening carelessness or negligence is the sole and exclusive cause of the injury. (Wallin, supra, 176 Cal.App.2d at p. 17, 1 Cal.Rptr. 73.) Certain conduct can break the causative chain. Where the injured rashly undertakes a line of action with knowledge of the risk created by the weakened member resulting from the industrial injury, the causative chain from the industrial injury is broken as to the subsequent accident caused by such conduct. (Larson, Workmen's Compensation Law (1978), § 13.12; see also Larson, Range of Compensable Consequences in Workmen's Compensation (1970), 21 Hastings L.J. 609.)

Wallin, it must be remembered, dealt with a subsequent accident allegedly caused in part by the injured's "negligence." There is no indication in Wallin, though, whether the commission considered if Wallin, the injured person, had rashly undertaken the activity which resulted in the loss of his finger. True, he had been ordered to exercise his eye by the treating physician. (Wallin, supra, 176 Cal.App.2d at p. 16, 1 Cal.Rptr. 73; see also 1 Herlick, supra, § 10.31.)

In Wallin the court relied upon a number of out-of-state cases concerning the chain of causation between an industrial...