Buhlert Trucking v. Workers' Comp. Appeals Bd.

• Citation: 199 Cal.App.3d 1530,247 Cal.Rptr. 190
• Decision Date: 09 February 1988
• Docket Number: No. C000046,C000046
• Court: California Court of Appeals Court of Appeals
• Parties: BUHLERT TRUCKING and Insurance Company of North America, Petitioners, v. WORKERS' COMPENSATION APPEALS BOARD and Harold Gilpin, Respondents.

Page 190

247 Cal.Rptr. 190

199 Cal.App.3d 1530

BUHLERT TRUCKING and Insurance Company of North America, Petitioners, v. WORKERS' COMPENSATION APPEALS BOARD and Harold Gilpin, Respondents.

No. C000046.

Court of Appeal, Third District, California.

Feb. 9, 1988.

Hanna, Brophy, MacLean, McAleer & Jensen and Joseph R. Montgomery, Redding, for petitioners

Canelo, Hansen & Wilson and Rickey D. Wallace, Merced, for respondent Gilpin.

No appearance, for respondent W.C.A.B.

Froba, Frailing & Rockwell and David J. Froba, Modesto, as amici curiae on behalf of respondents.

BLEASE, Acting Presiding Justice.

In this case we hold (a) that under Labor Code section 4600 ¹ an employer is liable for the full award of costs of future medical treatment to an employee injured in the course of his employment where the need for such medical treatment is partially attributable to a previous industrial injury and (b) that section 4600 has not been impliedly repealed or amended by the later enactment of section 3208.2. To the extent that our earlier decision in Savage Plumbing Co. v. Workers' Comp. Appeals Bd. (1982) 131 Cal.App.3d 517, 182 Cal.Rptr. 485, is inconsistent with this holding, we disapprove it. We will therefore affirm the decision of the Workers' Compensation Appeals Board ("Board") holding Buhlert Trucking and its workers' compensation carrier, Insurance Company of North America, ("Buhlert") liable for the full award of future medical treatment to applicant Harold Gilpin.

FACTS AND PROCEDURAL BACKGROUND

In 1969, Gilpin injured his lower back during the course of his employment in Oregon. Back surgery (spinal fusion) was performed in 1970 and again in 1971. In 1973 Gilpin suffered another industrial injury in Oregon. Following an unsuccessful surgery, he remained off work for one and one-half years and continued under the care of his physician. In 1978, he underwent another surgery. ² Following this fourth surgery, Gilpin had no back symptoms for two years until the specific injury which serves as the basis of this litigation. During the interim he traveled to Alaska where he worked for a lumber company on a logging pond. He then worked as a truck driver, transporting frozen food in five western states. In 1979, he moved to Texas where he worked as a roofer.

In September 1980, Gilpin moved to California and was hired by Buhlert as a truck driver. On September 26, 1980, he injured his back when he stepped out of the truck and into a hole. As of August 31, 1983, Gilpin had not returned to work.

Gilpin filed a worker's compensation claim with the Board. He asserted that the September 1980 injury caused disability from the date of the injury and continuing. At the hearing on the application, the report of the agreed-upon medical examiner was introduced. The report stated that Gilpin "had an ongoing disability in his lower back as described in the medical records prior to 1980. Therefore, apportionment to the pre-existing condition is indicated.

"...

"The patient's injury of September 26, 1980 would therefore be an aggravation of an ongoing pre-existing condition. [p] ... I would apportion 40% to the pre-existing and 60% to the specific injury of September 26, 1980."

The parties stipulated to the following: (1) the injury caused temporary disability for the period from September 27, 1980, through August 31, 1983, for which indemnity is payable at $154 and $186.67 per week; and (2) the injury caused a permanent The only issue not resolved by stipulation concerned Buhlert's liability for future medical treatment. The parties agreed that Buhlert was liable for at least 60 percent of the costs of future medical treatment. The dispute concerns the remaining 40 percent. The parties framed the issue to be decided by the Board as follows: "[G]iven a valid apportionment to an out-of-state industrial injury for future medical care, does this apportionment reduce applicant's award of benefits in the instant case." The workers' compensation judge found that the costs of medical treatment were not apportionable and that Buhlert was responsible for the full award for future medical care. ³ The Board denied Buhlert's petition for reconsideration of the petition. This petition for writ of review followed.

disability of 33 3/4 percent for which indemnity is payable at $70 per week in the sum of $10,027.50.

DISCUSSION

The workers' compensation law (Lab.Code, §§ 3200 et seq.) implements the mandate of article 14, section 4, of the California Constitution that the Legislature create a "complete system" of compensation for injury or death to an employee incurred in course of employment. Since the source of this law is statutory, the rights and liabilities of the parties must be predicated upon the statutes and the cases which interpret them ⁴. As we shall explain, the medical benefits due Gilpin are mandated by the provisions of section 4600.

I

A.

As part of the "complete [statutory] system" of workers' compensation, article 14, section 4 of the California Consitution specifies that there shall be "full provision for such medical, surgical, hospital and other remedial treatment as is requisite to cure and relieve from the effects of [ ] injury" incurred in the course of employment. Labor Code section 4600 implements this direction in providing that "[m]edical, surgical, chiropractic, and hospital treatment, including nursing, medicines, medical and surgical supplies, crutches, and apparatus, including artificial members, which is reasonably required to cure or relieve from the effects of the injury shall be provided by the employer." In addition, Section 4601 requires that the services of a consulting physician shall be at the expense of the employer.

These sections were construed in Granado, supra, as precluding the apportionment of liability for medical expenses rendered an injured worker, notwithstanding that they were partially made necessary by a preexisting injury. The court said: "There can be no doubt that medical expense is not apportionable. Section 4600 of the Labor Code states that the employer shall provide such treatment which is reasonably required to cure or relieve from the effects of the injury and section 4601 provides that 'All' of the doctor treatment shall be at the expense of the employer. Neither section 4600 nor any of the succeeding sections in the article of the code dealing with medical and hospital treatment state or even suggest that the employer may pay part of the expenses." (Id., at pp. 405-406, 71 Cal.Rptr. 678, 445 P.2d 294.) The reason for this, said the court, is that "if medical expense reasonably necessary to relieve the industrial injury were apportionable, a workingman, who is disabled, may not be able to pay his share of the expenses and thus forego treatment. Moreover, the uncertainties attendant to the determination of the proper apportionment might cause employers to refuse to pay their share until there has been a hearing and decision on the question of apportionment, and such delay in payment may compel the injured workingman to forego the prompt treatment to which he is entitled." ( Id., at p. 406, 71 Cal.Rptr. 678, 445 P.2d 294.) The duty imposed by section 4600 upon an employer is joint and several, subject only to the right of contribution as between employers. (See Royal Globe Ins. Co. v. Industrial Acc. Com. (1965) 63 Cal.2d 60, 62, fn. 1, 45 Cal.Rptr. 1, 403 P.2d 129; Fibreboard Paper Products Corp. v. Industrial Acc. Com. (1965) 63 Cal.2d 65, 67, 45 Cal.Rptr. 5, 403 P.2d 133.)

Though Granado concerned the liability of an employer for the contributing effect of a preexisting non industrial injury, there is nothing in section 4600 or, as we next show, elsewhere in the "complete" workers' compensation statutory system, to preclude its application to medical treatment, whether present or future, arising from the combined effects of present and preexisting industrial injuries.

B.

The workers' compensation laws provide for a variety of benefits to injured employees. They include compensation for temporary disability (§§ 4650, 4653), permanent disability (§§ 4650, 4658-4660) and medical care (§§ 4600-4605). Their separate statutory treatment serves different legislative goals. "Employer liability for medical and surgical services is provided in major part in order to facilitate the worker's speedy recovery and to maximize his productive employment. (Zeeb v. Workmen's Comp. App. Bd. (1967) 67 Cal.2d 496, 500 [62 Cal.Rptr. 753, 432 P.2d 361].) Temporary disability indemnity is intended primarily to substitute for the worker's lost wages, in order to maintain a steady stream of income. (See Granado v. Workmen's Comp. App. Bd., supra, 69 Cal.2d at pp. 403-404 [71 Cal.Rptr. 678, 445 P.2d 294].) Permanent disability indemnity has a dual function: to compensate both for actual incapacity to work and for physical impairment of the worker's body, which may or may not be incapacitating. ( Id., at p. 404 [71 Cal.Rptr. 678, 445 P.2d 294].)" (J.T. Thorp, Inc. v. Workers' Comp. Appeals Bd. (1984) 153 Cal.App.3d 327, 333, 200 Cal.Rptr. 219.)

Two statutes, sections 4663 ⁵ and 4750 ⁶ (commonly referred to as the "apportionment" statutes), limit the liability of an employer to an employee for benefits, but only for benefits for permanent disability which is caused by successive injuries. They provide that an employer need not provide an employee that portion of permanent benefits which is attributable to a preexisting industrial disease or injury, the latter section providing so explicitly and the former by judicial construction (See Granado v. Workmen's Compensation App. Bd., supra, 69 Cal.2d at p. 406, 71 Cal.Rptr. 678, 445 P.2d 294; see also, e.g., Callahan v. Workers' Comp. Appeals Bd. (1978) 85 Cal.App.3d 621, 149 Cal.Rptr. 647; iDorman v. Workers' Comp. App. Bd. (1978) 78 Cal.App.3d 1009, 1017, 144 Cal.Rptr. 573; Cal.Workers' Compensation Practice (Cont.Ed.Bar 1985) p. 573; but...