Brown v. Workmen's Comp. Appeals Bd.
| Decision Date | 27 October 1971 |
| Citation | 20 Cal.App.3d 903,98 Cal.Rptr. 96 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Samuel C. BROWN, Petitioner, v. WORKMEN'S COMPENSATION APPEALS BOARD of the State of California, State of California, Subsequent Injuries Fund, Respondents. Civ. 37826. |
Spielman, Steele, & Urias, Sumner J. Spielman, Ventura, for petitioner.
Rupert A. Pedrin, San Francisco, and Gabriel L. Sipos, Los Angeles, for respondent Workmen's Compensation Appeals Board.
Evelle J. Younger, Atty. Gen., and Jerold A. Prod, Deputy Atty. Gen., for respondent Subsequent Injuries Fund.
Petitioner Samuel C. Brown, born August 26, 1907, filed for adjudication of his claim on December 28, 1967. He named Cal-Pat Growers, Inc. and San Joaquin Cotton Oil Co. as employers and State Compensation Insurance Fund and the Hartford Insurance Group as the respective insurers. He claimed that he had suffered chest (internal) injuries due to exposure to cotton dust while working as a cotton gin foreman from August 15, 1952, to October 10, 1966.
His claim was eventually expanded to include claims against the following employers and insurers for the periods of employment set forth below:
Employer Period Insurer
--------------------------- ------------------------- --------------------
Agricultural Products, Inc. August 15, 1952 to July State Compensation
1, 1959 Insurance Fund
--------------------------- ------------------------- --------------------
San Joaquin Cotton Oil Co. September to November Ranger Insurance Co
1962
--------------------------- ------------------------- --------------------
Holtville Cotton Products, One week--quarter ending Industrial Indemnity
Inc. December 31, 1962 Insurance Co
--------------------------- ------------------------- --------------------
Cal-Pat Growers, Inc. April 1, 1963, to October State Compensation
10, 1966 Insurance Fund
There were numerous other employers for whom no insurance carriers were named or against whom petitioner (hereafter 'Brown') did not allege exposure to cotton gin dust. The claims against the aforementioned four employers and their respective insurers were settled for a total sum of $9,500 by way of compromise and release, which was approved by the referee on January 20, 1969.
Brown applied for Subsequent Injuries Fund (hereafter 'Fund') benefits on October 9, 1968. 1 Over objection by the Fund that there was no evidence of any disability only pathology, prior to the date of the industrial exposure claimed, the referee asked and received a rating on the basis of 'Pulmonary emphysema classified as severe of which 50% Is due to industrial injury herein, and 50% Is due to cigaretee smoking over a period of many years.' The permanent disability rating specialist found the pulmonary impairment of 75 percent based solely on the instructions from the referee and without reference to any medical reports. After the Fund's motion to strike the rating, Brown filed an amended application for Fund benefits. 2 In his supplemental findings and award, the referee found: Brown sustained an injury resulting in permanent disability to his lungs while employed between August 15, 1952, and October 10, 1966. The injury caused a permanent disability of 40 1/2 percent after apportionment. Brown 'had previous permanent disability of his lungs.' The percentage of permanent combined disabilities is 81 percent. The award included lifetime payments by the Fund to Brown commencing the 163rd week after October 10, 1966.
The Fund petitioned for reconsideration alleging that the liability imposed upon it was contrary to Labor Code, sections 4750 and 4751 and that there was no basis to support the apportionment of disability. The referee recommended against reconsideration. The Workmen's Compensation Appeals Board (hereafter 'WCAB') granted the petition for reconsideration. The order reflects it did so to reexamine the evidence and law applicable to the proceeding and it vacated the referee's findings and award for that purpose. The WCAB then ordered an examination and report by Dr. Samuel J. Sills, M.D., as an independent medical examiner. His report was filed August 5, 1970. After Dr. Sills was examined at a supplemental hearing, the WCAB found, as the referee did, as to Brown's age, period of employment, and injury on October 10, 1966, while employed which resulted in permanent disability to his lungs. But the WCAB, inter alia, found 'Applicant did not have previous ratable permanent disability' and limited its award against the Fund to reimbursement of medical-legal costs of $124.08.
In denying Brown's petition for reconsideration on December 18, 1970, the WCAB stated in part: Brown seeks a review of the WCAB's decision after reconsideration.
1. Did the WCAB err in granting the Fund's petition for reconsideration?
2. Was the finding by the WCAB that Brown did not have a previous ratable permanent injury on October 10, 1966, warranted?
We have concluded that the first question should be answered in the negative and the second one in the affirmative for the reasons set forth below.
Brown contends that the WCAB was without jurisdiction to grant the rehearing, citing Michon v. Workmen's Comp. App. Bd. (1971) 15 Cal.App.3d 917, 93 Cal.Rptr. 476. We think Michon should be confined to the facts of that case. In Michon the only medical testimony received was in favor of the claimant and neither the employer nor its carrier registered any disagreement with the doctor's report. They produced no evidence of their own, medical or otherwise. The petition for reconsideration was filed nine months after the report and five months after submission of the cause, supported by only a conclusionary statement of grounds. Here, the evidence consisting of the reports of Dr. Alan Frank, Dr. David C. Fainer, and Dr. William Oliver was in conflict. (Cf. Dranklin v. Workmen's Comp. App. Bd. (1971) 18 Cal.App.3d 682, 685, 96 Cal.Rptr. 201.) The question of whether injury forming an integral part of a cumulative occupational disease, as presented in this case, could as a matter of law be the basis of a separate preexisting permanent partial disability within the meaning of Labor Code, section 4751 was hotly mooted. Our situation is closer to that in Helmick v. Ind. Acc. Com. (1941) 46 Cal.App.2d 651, at pages 655--656, 116 P.2d 658, at page 660, wherein the court stated: '(I)t was (the commission's) duty to grant a rehearing if in its opinion errors of law occurred in the original hearing, or if in the opinion of the commission the findings of fact were unsupported by the evidence, or if in its opinion the award was unsupported by the findings.'
Brown's pertinent work history, as gathered from his statement in evidence and his statements given to the various examining doctors, appears generally in accord with that reflected by his claims against various employers and insurers set forth earlier. It does appear, however, that Brown's first exposure to the cotton ginning industry commenced in 1951 (not 1952) while working for the Steaven H. Sturges Co. in Yuma, Arizona. During the period 1960 to April 1, 1963, he worked in Arizona and California (except from September 1962 to November 1962 when he worked for the San Joaquin Oil Co.) as a packer of cantaloupes, a millwright, and a ranch foreman. He engaged in baling Bermuda grass straw in the fall of 1960.
The work of cotton ginning is very dusty and the mills in which Brown worked were poorly ventilated. During the period he worked for Cal-Pat Growers, Inc. (April 1, 1963, to October 10, 1966), the ginning season ran from around mid-November to March of the following year. He did maintenance work in the mill for the balance of the year, thus working the year around. The maintenance work included blowing out of machinery in which 'much 'ginfall" surrounded him. During the ginning season, he managed the cotton gins, oversaw the crews, and was responsible for the operational function and repair of the gins. It involved being in a 'lot of gin-fall' and air full of cotton dust and various insecticides in it. He worked from thirteen to sixteen hours per day seven days per week during the ginning season and forty hours per week during the off-season period.
In the spring of 1965, during the latter part of the ginning season or just after it, he experienced 'shortness of breath' and went to see Dr. N. K. Caldwell of Calipatria, who sent him to the Pioneers Memorial hospital in Brawley. The first X-rays taken were interpreted May 1, 1964, as being compatible with asthmatic bronchitis. On May 22, 1964, under reexamination, the pulmonary markings were considered within range of normal and except for secondary evidence of a mild pulmonary emphysema, the chest was otherwise unremarkable.
On going to Pioneers Hospital he was given, according to Brown, the Bird Respiratory Treatment (forced feeding of oxygen) for a period of 70 to 75 days as an outpatient. Except for his time off for treatment, he continued working the year around. However, he began having difficulty in breathing again in the spring of 1966 and Dr. Caldwell treated him with some shots.
The examining doctors unanimously agreed that Brown's disability was attributable, at least in part, to his lung...
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