Berry v. Workmen's Compensation Appeals Bd.

• Court: United States State Supreme Court (California)
• Writing for the Court: MOSK; TRAYNOR
• Citation: 69 Cal.Rptr. 68,68 Cal.2d 786,441 P.2d 908
• Parties: , 441 P.2d 908 William BERRY, Petitioner, v. WORKMEN'S COMPENSATION APPEALS BOARD, Florence Furniture Company, Inc., et al., Respondents. L.A. 29557.
• Decision Date: 26 June 1968

Page 68

69 Cal.Rptr. 68 68 Cal.2d 786, 441 P.2d 908 William BERRY, Petitioner,
v.
WORKMEN'S COMPENSATION APPEALS BOARD, Florence Furniture Company, Inc., et al., Respondents. L.A. 29557. Supreme Court of California,
In Bank. June 26, 1968.

Page 69

[441 P.2d 909] [68 Cal.2d 788] Rose, Klein & Marias and Howard N. Lehman, Los Angeles, for petitioner.

Everett A. Corten, San Francisco, Edward A. Sarkisian, Sheldon M. Ziff, Zonni, Ginocchio & Taylor and Marco J. Zonni, Los Angeles, for respondents.

MOSK, Justice.

We are called upon to decide whether there is substantial evidence in the record to support a finding of the Workmen's Compensation Appeals Board (hereinafter board) that half of petitioner William Berry's disability is due to a preexisting physical impairment and half to an industrial injury. The evidence compels our conclusion that his entire disability is the result of an industrial injury.

In May 1964, Berry hit his left knee on a dresser while moving it up a flight of stairs in the course of his employment. The knee became swollen, painful and filled with fluid. A number of doctors who examined him made various diagnoses of his condition, including rheumatoid arthritis and osteomyelitis. It was not until April 1965 that his illness was diagnosed as disseminated coccidioidomycosis, a fungus disease endemic to the San Joaquin Valley. It is contracted by the inhalation of tiny spores; these infected Berry's lungs and spread through his bloodstream to various portions of his anatomy. In its disseminated form the disease is deemed to be very serious.

The undisputed evidence established that Berry had contracted coccidioidomycosis prior to his knee injury and its dissemination was not caused by the injury. However, two experts, including one who specialized in the study of this uncommon ailment, testified that the trauma to Berry's knee caused the infection to lodge there. That is, prior to the injury the disease had disseminated through Berry's body but it had been dormant; the injury precipitated the localization of the fungus, resulting in 'advancement' of the disease. Berry had never injured either leg prior to May 1964 and had not received medical treatment for any injury to his legs. The underlying fungus disease was entirely asymptomatic, and he was unaware of its existence.

The referee found, after a series of hearings in 1965, that [68 Cal.2d 789] Berry had sustained an industrial injury. This finding was affirmed by the board. Subsequently, additional proceedings were held to determine the issue of apportionment. The referee found that the injury caused permanent disability of 71 percent, and that no apportionment was appropriate because 'the un

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[441 P.2d 910] disputed evidence vitiates any indication of a preexisting disability, and the oral testimony by defendant's treating physician refutes the inference that the disease process would have progressed to disability without the industrial trauma to the left knee.'

On reconsideration, the board reversed the referee's decision and found that one-half of Berry's disability was attributable to the underlying disease, relying upon two reports of Dr. Randall H. Parker, who had treated Berry, and a report of Dr. Francis M. McKeever, who had examined him. These reports will be discussed below.

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.' The proper application of this statute and a companion statute, section 4750, ¹ has been made abundantly clear in recent decisions of this court, and there is no disagreement between the parties as to the rules appropriate to the determination of the issue here. In Reynolds Electrical & Engineering Co. v. Wokmen's Compensation Appeals Board (1966) 65 Cal.2d 438, 442--443, 55 Cal.Rptr. 254, 257, 421 P.2d 102, 105, we said: 'It is well settled that the acceleration, aggravation, or 'lighting up' of a preexisting nondisabling condition is an injury in the employment causing it (citation) and 'If the resultant disability is entirely due to the industrial injury lighting up the previous dormant condition, then the employer is liable for that disability and there can be no apportionment.' Whether a disability results in whole or in part from the normal progress of a preexisting disease or represents a fully...