Buescher v. Workmen's Compensation Appeals Bd.

• Decision Date: 06 September 1968
• Citation: 71 Cal.Rptr. 405,265 Cal.App.2d 520
• Court: California Court of Appeals Court of Appeals
• Parties: Rose E. BUESCHER, Petitioner, v. WORKMEN'S COMPENSATION APPEALS BOARD et al., Respondents. Civ. 917.

Page 405

71 Cal.Rptr. 405

265 Cal.App.2d 520

Rose E. BUESCHER, Petitioner, v. WORKMEN'S COMPENSATION APPEALS BOARD et al., Respondents.

Civ. 917.

Court of Appeal, Fifth District, California.

Sept. 6, 1968.

[265 Cal.App.2d 522] Robert Stevenson, Exeter, for petitioner.

Everett A. Corten and Selma Mikels, T. Groezinger, Loton Wells and A. C. Jones, Jr., San Francisco, Thomas C. Lynch, Atty. Gen., and William J. Power, Deputy Atty. Gen., Sacramento, for respondents.

OPINION

GARGANO, Associate Justice.

Petitioner, Rose E. Buescher, seeks to review a decision of the Workmen's Compensation Appeals Board (hereafter referred to as the board), denying petitioner a death benefit under the Workmen's Compensation Law and a pension under the Public Employees' Retirement Law.

Petitioner is the surviving widow of Henry J. Buescher, who died June 15, 1965, as a result of a heart attack. At the time of his death decedent had been employed as a maintenance foreman for the Department of Conservation of the State of California for a period of 15 years. His duties were to maintain in operating condition some 200 units of the Division of Forestry firefighting equipment and to be present at all fires in his district for that purpose.

On August 5, 1965, petitioner filed an application with the board for the payment of a death benefit, a burial allowance and for 'other appropriate benefits, pursuant to Workmen's Compensation Law.' The application was designated as case No. 65 F 14762 and named the State of California, Department of Conservation, and the State Compensation Insurance Fund as defendants. Subsequently, however, the State Compensation Insurance Fund was dismissed from the action as a party defendant.

On March 15, 1966, the State Employees' Retirement System (now the Public Employees' Retirement System and hereafter referred to as the Retirement System), wrote to the board asking to be joined in the action as a defendant in order that its liability to pay a special death benefit under the State Public Employees' Retirement System be determined pursuant to Government Code, section 21363.5. ¹ Accordingly, on March 16, 1966, the board joined the Retirement System in case No. 65 F 14762 as a party defendant. The board also opened a separate file on the Retirement System's application and assigned it a new case number, case No. 67 F 17485. Subsequently, separate notices of the time and place of hearing before the referee were sent in each case. However, the initial file (case No. 65 F 14762) was designated as the master file.

On April 14, 1967, the Retirement System informed the board that it was not going to be represented at the hearing and that it would accept, as its own defense, the defense presented by the State Compensation Insurance Fund on Behalf of decedent's employer, the Department of Conservation. The Retirement System also stipulated that '* * * the record established in the case under the Labor Code, including all testimony given and documents filed, shall be considered as applying to the Retirement System's application.'

The hearing before the referee on both cases was held on May 11, 1967. ² Dr. Eliot Sorsky and petitioner testified for the petitioner, and Dr. William L. Adams, Jr. testified for defendants. In addition, the written medical reports of both doctors were received in evidence. Dr. Sorsky was of the opinion that decedent's death was service-connected. Dr. Adams opinion to the contrary.

On June 30, 1967, the referee awarded petitioner a death benefit on her workmen's compensation claim against decedent's employer, the Department of Conservation. The pertinent finding was that Henry J. Buescher '* * * sustained injury arising out of and occurring in the course of his employment proximately resulting in his death on June 15, 1965.' On the same day the referee made an essentially similar finding on petitioner's claim for a special death benefit under the Public Employees' Retirement Law.

On July 7, 1967, the Retirement System informed petitioner that she would receive a monthly allowance of $346.51 (the special death benefit) for the balance of her lifetime or until remarriage, but reduced by any social security benefits petitioner might be entitled to in the future. However, almost two weeks later, on July 18, 1967, Thomas J. Marren, the attorney for State Compensation Insurance Fund, petitioned the board for reconsideration. The first page of the petition contained both case numbers and the names of both defendants. It was also signed 'Thomas J. Marren, Attorney for Defendants.' But the body of the petition did not state with specificity that the petition was brought on behalf of the Retirement System. It merely said:

'Comes now the STATE COMPENSATION INSURANCE FUND, adjusting agent for the State of California, Department of Conservation * * *'

On August 18, 1967, the board issued its 'Opinion and Order Granting Reconsideration and Decision After Reconsideration.' In this decision the board, after mentioning both cases by number and title, annulled the referee's award of a death benefit under the Workmen's Compensation Law and substituted its own finding of fact as to the cause of decedent's death; the board found that decedent's death was not industrial and hence that petitioner was not entitled to a death benefit under the Workmen's Compensation Law or to a special death benefit under the Public Employees' Retirement Law. The board expressed its opinion as follows:

'We have carefully reviewed the entire record including the testimony and medical reports of Dr. E. Sorsky, dated November 4, 1966 and March 28, 1967 and the testimony and medical report of Dr. William L. Adams, Jr., dated June 1, 1966.

'The record reveals that decedent worked as maintenance foreman for approximately 15 years and although the work entailed considerable overtime it was not particularly stressful or frustrating. Applicant, decedent's widow testified that her husband's doctor was Erwin P. Brauner, M.D., an internist. Dr. Brauner had never taken an electrocardiogram of the decedent and there was apparently no prior impression of heart trouble before his death.

'The medical evidence in this case is conflicting. Dr. Adams testified that decedent died of coronary artery disease, coronary sclerosis, and arteriosclerotic heart disease. In Dr. Adams' opinion, the decedent's work did not cause or hasten his death. We are of the opinion that the testimony and report of Dr. Adams is more persuasive than the testimony and reports of Dr. Sorsky. The Board's power to choose between conflicting medical reports is too well settled to require further comment. (See Foster v. I.A.C., 20 CCC 276.)

'We find therefore that the decedent did not sustain an injury arising out of or in the course of his employment.'

On September 7, 1967, petitioner petitioned the board for reconsideration. She alleged, Inter alia, that the Retirement System had no asked for reconsideration and therefore was bound by the referee's finding that decedent's death was industrial. Petitioner also raised the applicability of the presumption established by section 3212 of the Labor Code. This section provides:

'In the case of * * * active fire fighting members of the Division of Forestry of the State Department of Natural Resources whose duties require firefighting * * * the term 'injury' includes * * * heart trouble which develops or manifests itself during a period while such member is in the service of such * * * unit. * * *

'Such * * * heart trouble * * * so developing or manifesting itself in such cases shall be presumed to arise out of and in the course of the employment. This presumption is disputable and may be controverted by other evidence, but unless so controverted, the appeals board is bound to find in accordance with it.

'Such * * * heart trouble * * * so developing or manifesting itself in such cases shall in no case be attributed to any disease existing prior to such development or manifestation.'

On November 6, 1967, the board denied petitioner's Petition for Reconsideration. The board made no express finding as to whether the petitioner was entitled to the benefit of the presumption established by Labor Code, section 3212. It stated, however, '(e)ven if Labor Code Section 3212 were considered to be applicable the presumption established by 3212 is controverted by the evidence of the record.' With regard to petitioner's contention that the Retirement System was bound by the referee's decision, the board stated:

'The parties entered into a stipulation at the time of the hearing before the referee that the record established in the case under the Labor Code, including all testimony given and documents filed, should be considered as applying to the Retirement System's application. The Petition for Reconsideration of the State Compensation Insurance Fund listed both case numbers and stated that reconsideration was sought in both cases. The referee's report on reconsideration also stated that the petition in both cases should be denied. The stipulation was binding on both parties and the decision of the Board binding on the State Retirement Board as well as the Department of Conservation.'

Petitioner raises four main contentions for annulment of the board's decision: that the board exceeded its jurisdiction when it found that decedent's death was not industrial as to petitioner's claim for a death benefit under the Public Employees' Petirement Law; that the Retirement System acquiesced in the referee's decision and is estopped from claiming otherwise; that the evidence is not sufficient to sustain the board's decision; that the board's findings of fact are fatally defective.

1) Petitioner's first attack does not reach the merits of the board's decision. She argues that the Retirement System did not request reconsideration, either directly or indirectly, because the Petition for Reconsideration which was presented by the State...