Berry v. Workmen's Compensation Appeals Bd.

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

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.

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 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 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 compensable lighting up or aggravation of a preexisting condition is a factual question for the commission to determine, and its award will not be annulled if there is any substantial evidence to support it.' (See also, Fred Gledhill Chevrolet v. Ind. Acc. Com. (1964) 62 Cal.2d 59, 61, 41 Cal.Rptr. 170, 396 P.2d 586; Argonaut Ins. Co. v. Ind. Acc. Com. (1962) 57 Cal.2d 589, 593, 21 Cal.Rptr. 545, 371 P.2d 281.)

It is undisputed that Berry's disability is due to the condition of his knee and that prior to the injury he had no overt symptoms referable to his underlying disease. The matter to be decided, then, is whether his entire disability is due to the fact that the injury 'lighted up' or aggravated the previously dormant fungus disease, in which case the board incorrectly apportioned half that disability to the disease, or whether the normal progression of the disease would have resulted in Berry's disability regardless of the injury. We conclude that the medical reports relied upon by the board could not justify its determination that 50 percent of Berry's disability was due to his prior disease.

The first of the medical reports cited by the board in support of its determination was rendered by Dr. Parker and dated February 17, 1967. It states in part, 'I have received your letter * * * relative to the possible apportionment of this patient's case between a pre-existing medical condition and the injury which he suffered on May 11, 1964. * * * Mr. Berry's injury * * * did not cause the dissemination of this fungus from his lungs into his blood stream. However, it is most certainly my opinion that the injury which he suffered on May 11, 1964, caused the localization of this dissemination into his knee. However, what is a fact is that the patient's present disability and most serious disease locus is referable to the left knee. That is to say, the thing that is preventing him from going back to work is not coccidiodiomycosis...