Beveridge v. Industrial Acc. Commission

• Decision Date: 25 November 1959
• Court: California Court of Appeals Court of Appeals
• Parties: Robert H. BEVERIDGE, Petitioner, v. INDUSTRIAL ACCIDENT COMMISSION of the State of California, Richmond Flatland Electric Company and Columbia Casualty Company, Respondents. Civ. 18841.

Page 545

346 P.2d 545

175 Cal.App.2d 592

Robert H. BEVERIDGE, Petitioner, v. INDUSTRIAL ACCIDENT COMMISSION of the State of California, Richmond Flatland Electric Company and Columbia Casualty Company, Respondents.

Civ. 18841.

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

Nov. 25, 1959.

Hearing Denied Jan. 20, 1960.

Watson A. Garoni, San Francisco, for petitioner.

Everett A. Corten, Emily B. Johnson, San Francisco, R. Percy Wisecarver, San Francisco, for respondents.

TOBRINER, Justice.

The petitioner seeks review and annulment of the Findings and Order of the respondent Industrial Accident Commission that the evidence failed to establish that he suffered an industrial injury on or about October 20, 1958, and that he take nothing by reason of his claim.

The issue which emerges is whether the statute of limitations for a claim for workmen's compensation (1) runs from the date of final stoppage of work if the accumulated strain of work effort causes a preexisting condition to become disabling on such date or (2) runs, in the absence of a new traumatic incident, from the date of the original injury causing the preexisting condition. A subsidiary question involves respondent's defense that since petitioner at the hearing advanced the theory that he sustained a new traumatic injury on October 20, 1958, he cannot now contend that disability results from aggravation of the preexisting condition. We consider these problems hereafter.

The factual background of these issues involves the preexisting back condition and the episode of October 20, 1958.

While the petitioner, a 39 year old electrician, alleged in his application that on October 20, 1958, he sustained an injury to his back which aggravated a preexisting low back disability, he testified to a prior injury to his back which occurred in 1953. The 1953 injury necessitated three weeks of hospitalization and an additional three weeks of recuperation. Since then, he testified, he has had recurrent episodes of pain in his low back and left leg. Again in February 1956 he suffered further back injury which required two weeks of diathermic treatment. Thereafter he continued to take self-conducted heat treatments at home.

The episode of October 20, 1958, occurred when he lifted a 70 pound coil of electrical conduit and felt a 'twinge' of pain in his back. Although applicant testified that he believed he coincidentally told one of his supervisors of this injury, his employer testified that he did not remember receiving this information. Because of unavailability the other supervisor did not testify. Applicant continued to work until December 17, 1958. Thereafter he became totally disabled because of his back condition.

Although applicant requested medical care of respondent, the carrier denied compensation benefits upon the ground that his difficulty resulted solely from the 1953 injury. Resorting to self-procured medical care, applicant obtained the services of Doctor John J. Demas, an orthopedist. Although on January 6, 1959, a laminectomy was performed, applicant's back remained in a severe condition and, according to his doctor, future treatment and observation will be necessary.

Doctor Demas' medical report made up the sole medical statement placed in evidence. The report in part states: 'this patient has had, since 1953, a pre-existing disability. His subsequent work to that time has acted as an aggravation of this disability, and the patient's present condition is the effect of such aggravation. This patient has never been asymptomatic since 1953, by the history given to us.' (Emphasis added.) At the hearing, Dr. Demas testified in answer to a question whether the 'disease' had progressed to the point where he operated, 'I am not certain I know what you mean by the term 'disease' here, because certainly this man's condition has deteriorated in the five years.' Asked whether this isn't 'called a discogenic disease' the physician answered, 'Well, yes, if you want to put it that way. It has deteriorated.'

The Referee issued his Findings and Order holding that the applicant did not sustain an injury arising out of and occurring in the course of employment and was not entitled to compensation benefits. The Commission denied a Petition for Reconsideration, and applicant then brought this Petition for Writ of Review.

The contentions of the parties turn on the question as to the date from which the statute of limitations runs. Respondents contend that, since the original injury occurred in 1953, applicant's claim is 'barred by the statute of limitations.' Petitioner argues that if the injury results from the cumulative effects of the employment the statute runs from the date upon which the employee's condition compels him to stop working. In such case, the claim would not be barred, since applicant stopped working on December 17, 1958. The relevant Labor Code, section 5411 provides: 'The date of injury, except in cases of occupational disease, is that date during the employment on which occurred the alleged incident or exposure, for the consequences of which compensation is claimed.'

While it is true that the power of an appellate court is confined to a determination as to whether substantial evidence supports the Commission's determinations of fact (Douglas Aircraft Co., Inc. v. Industrial Accident Commission, 1957, 47 Cal.2d 903, 905, 306 P.2d 425), we find here, as we shall point out, that the Commission applied an unsupportable theory to the ascertained facts and that the facts contradict its conclusions.

We think the proposition irrefutable that while a succession of slight injuries in the course of employment may not in themselves be disabling, their cumulative effect in work effort may become a destructive force. The fact that a single but slight work strain may not be disabling does not destroy its causative effect, if in combination with other such strains, it produces a subsequent disability. The single strand, entwined with others, makes up the rope of causation.

The fragmentation of injury, the splintering of symptoms into small pieces, the atomization of pain into minor twinges, the piecemeal contribution of work-effort to final collapse, does not negate injury. The injury is still there, even if manifested in disintegrated rather than in total, single impact. In reality the only moment when such injury can be visualized as taking compensative form is the date of last exposure, when the cumulative effect causes disability.

This principle finds expression in 2 Hanna, The Law of Employee Injuries and Workmen's Compensation: 'Injury may result from the accumulated effects of overwork or from long-continued exposure to tension and strain. Where there is such an extended exposure, the result is regarded as one continuous, cumulative injury rather than as a series of individual injuries. Separately, each day's strain may be slight, but when added to the strains which have preceded, it becomes a destructive force. With such an injury, the statute of limitations runs from the date of the last exposure.' (Pp. 133-134.)

The Supreme Court has applied the principle to a case in which an employee, exposed to 65 days of tension in labor negotiations, sustained an aggravation of 'an existing hypertension which in turn * * * precipitate[d] a cerebral vascular accident.' Fireman's Fund Indemnity Co. v. Industrial Accident Commission, 39 Cal.2d 831, 832, 250 P.2d 148, 149. The court points out that in the development of this condition, a point exists, 'where without further strain and tension resulting from the employment, the stroke will result.' The court states, 'This point 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...