Callahan v. Workers' Comp. Appeals Bd.

• Decision Date: 18 October 1978
• Citation: 85 Cal.App.3d 621,149 Cal.Rptr. 647
• Court: California Court of Appeals Court of Appeals
• Parties: Henry CALLAHAN, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD of the State of California, McDonnell Douglas Corporation and Industrial Indemnity Co., Respondents. Civ. 53278.

Page 647

149 Cal.Rptr. 647

85 Cal.App.3d 621

Henry CALLAHAN, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD of the State of California, McDonnell Douglas Corporation and Industrial Indemnity Co., Respondents.

Civ. 53278.

Court of Appeal, Second District, Division 5, California.

Oct. 18, 1978.

Owen A. Silverman, Torrance, for petitioner.

Mouser, Channels & Roberts, Susan L. England, and F. Whitfield Giddens, Santa Ana, for respondents McDonnell Douglas Corp. and Industrial Indemnity Co.

KAUS, Presiding Justice.

Petitioner Henry Callahan contends that all of his psychiatric disability is related to his industrial injury of August 21, 1969, and that the Workers' Compensation Appeals Board ("Board") erred in apportioning 50 percent of his psychiatric disability to preexisting nonindustrial causes. Respondent McDonnell Douglas Corporation ("McDonnell"), which was Callahan's employer at the time of the industrial injury of August 21, 1969, and its workers' compensation insurance carrier, Industrial Indemnity Company ("Industrial Indemnity"), argue in rebuttal that the Board correctly apportioned Callahan's disability in that different rules of apportionment should apply to "psychiatric" as opposed to "physical" injuries. For the reasons stated below, we annul the board's finding of apportionment and remand the question for further evaluation.

I

Callahan, while employed on August 21, 1969, by McDonnell, sustained injury arising out of and occurring in the course of his employment to his head and neck. The injury also resulted in psychiatric disability.

The workers' compensation judge initially found that Callahan's industrial injury of August 21, 1969, did not result in any psychiatric disability. Callahan sought reconsideration by the Board, contending the judge's decision on the question of psychiatric disability was in error. The Board granted reconsideration to refer Callahan to an independent medical examiner in the field of psychiatry, Dr. Myron Feld, "to obtain an opinion of whether or not the applicant had a psychiatric disability which was the result of the industrial injuries . . . ."

Dr. Feld viewed this matter as involving two questions. First, whether Callahan had a psychiatric disorder. Second, whether the psychiatric disorder, if it existed, was secondary to an industrial injury.

Dr. Feld noted that the first question involved the "touchy matter" of whether Callahan's newly found religious fervor, in reality stemmed from a psychiatric disorder. Dr. Feld felt Callahan's "religious conversion" was actually a psychosis, stating in his report of May 12, 1977: "There is no doubt that religion carried to the extreme, and being obsessed with it, can be a form of a psychosis even if we use the old term of monomanical psychosis and I do believe that (Callahan's) extreme views, feelings, etc., constitute a psychosis."

As to the question of the industrial causation of the "psychosis," Dr. Feld opined that Callahan's psychiatric disorder was, in part, related to the 1969 industrial injury. While viewing Callahan's psychiatric disorder as one of moderate intensity, Dr. Feld attributed only 50 percent of the psychiatric disability as related to the 1969 industrial injury. In his report, Dr. Feld explained the issue of apportionment as follows:

"This individual has had some previous stigmata of course. He had enuresis, intermittently until the age of 16, which in the absence of any urological disease, of course, would indicate a psychopathology being present. Further, he had already given up on really advancing when he quit college after a year and a half, feeling that he, as a black man and could not go forth in the business world. And despite being at least of normal intelligence, he has never been able to do more than non-skilled type work. The patient tells me, that he himself believes, that even if he had had no accident, that his religious conversion was bound to come. This I do not believe, of course, can be used in one way or the other.

"He has felt, himself, as being unable to progress in this world as he would like to. By being touched by God and really being in a tremendously omnipotent position of being the only type of his kind in the world, and knowing the only truth, has made something of himself unique, which was otherwise unobtainable and overrides his feelings of basic inferiority and an inability to handle realities of the world and his position in it.

"So the questions still arises. If he had not had this accident and the subsequent surgeries, etc., would he have felt it necessary to, or would he have had, what I consider this illness at this time.

"I must say that the ground was certainly fertile for this and, therefore, I'm going to make an apportionment. At the time I see him, I believe him to be moderately ill. Until, and if ever, he acts on some of his thoughts that may come to him, I do not believe that he is committable under the present laws of the State of California and I'm not too sure any of the medications, including the Phenothiazines would be of any help. But my rating is of moderate degree in total with apportionment of 50% Due to the accident in the position of which he finds himself."

In a two-to-one Board panel decision, the Board followed Dr. Feld's finding on the issues of the existence of an industrially related psychiatric disorder, ¹ level of psychiatric permanent disability and apportionment.

Callahan then again sought reconsideration challenging the 50 percent apportionment. ² The two member majority of the Board panel denied reconsideration on the issue of apportionment, stating that different rules of apportionment apply for psychiatric disability as opposed to physical disability. The dissenting panel member argued no apportionment was proper since present law does not provide for different standards in apportioning psychiatric as opposed to physical disabilities and that here "the apportionment provided by Dr. Feld does not constitute legal apportionment" since it had not been shown Callahan "was psychiatrically disabled prior to the injury of 1969."

II

McDonnell, Industrial Indemnity and the majority of the Board panel argue that the well established rules of apportionment as applied to physical injuries should be different than that applied to psychiatric injuries.

The Board's majority opinion rationalizes such a distinction is warranted by stating:

"It must be realized that there is a fundamental, substantive difference in the standards applied to determining physical disability Vis-a-vis mental disability. The court-made rule restricting apportionment to situations where there is actual, pre-existing physical disability is inapplicable when concerned with psychiatric injuries. Since a person afflicted with a 'pronounced neurosis' may be capable of performing even 'very heavy lifting,' to limit apportionment of such neurosis to cases of actual pre-existing physical disability is a Non sequitur. If the distinction between physical and mental disability remains unrecognized, the result may be that potential employers would require potential employees to undergo pre-employment psychiatric examinations in order to determine if there are any work restrictions caused by mental disorders."

Appellate authority does not indicate that any different rules of apportionment apply to psychiatric injuries. (See Dorman v. Workers' Comp. Appeals Bd. (1978) 78 Cal.App.3d 1009, 144 Cal.Rptr. 573; Bstandig v. Workers' Comp. Appeals Bd. (1977) 68 Cal.App.3d 988, 137 Cal.Rptr. 713; Skinner v. Workmen's Comp. App. Bd. (1969) 269 Cal.App.2d 905, 75 Cal.Rptr. 314; see also Ballard v. Workmen's Comp. App. Bd. (1971) 3 Cal.3d 832, 92 Cal.Rptr. 1, 478 P.2d 937; Baker v. Workmen's Comp. Appeals Bd. (1971) 18 Cal.App.3d 852, 861-862, 96 Cal.Rptr. 279.) As pointed out by the dissenting Board member, no basis for such a distinction is found in the pertinent statutory law. Accordingly, we expressly reject the contention that different rules of apportionment apply to psychiatric as opposed to physical injuries. Thus, as is the case with "physical injuries," an injured's predisposition or vulnerability to psychiatric injury alone is never a basis for apportionment. (Dorman, supra, 78 Cal.App.3d at p. 1018, 1144 Cal.Rptr. 573; Bstandig, supra, 68 Cal.App.3d at pp. 997-998, 137 Cal.Rptr. 713.) ³

We perceive the difficulty here as proper application of the rules of apportionment. Division Three of this district in Franklin v. Workers' Comp. Appeals Bd. (1978) 79 Cal.App.3d 224, 145 Cal.Rptr. 22, has recently made an exhaustive review of the rules of apportionment which are pertinent here. As pointed out in that case, the statutes governing apportionment generally are Labor Code sections 4663 ⁴ and 4750. ⁵ (Franklin, supra, 79 Cal.App.3d at p. 236, 145 Cal.Rptr. 22.) While these two sections share certain principles, they also have significant differences. Under both sections the employer is liable to the extent the industrial injury accelerates, aggravates or "lights" up the preexisting disability, condition or impairment. (Franklin, supra, 79 Cal.App.3d at pp. 237, 242-245, 145 Cal.Rptr. 22; Dorman v. Workers' Comp. Appeals Bd., Supra, 78 Cal.App.3d 1009, 1018, 1144 Cal.Rptr. 573; Bstandig v. Workers' Comp. Appeals Bd., supra, 68 Cal.App.3d 988, 997, 137 Cal.Rptr. 713.) Both sections seek to avoid the employer from being charged with permanent disability unrelated to the industrial injury. (Franklin, supra, 79 Cal.App.3d 224, 235-236, 145 Cal.Rptr. 22.) Further, neither section permits apportionment to mere pathology but only apportionment to disability. (Franklin, supra.)

Under section 4663, the employer is not liable to the extent the present permanent disability is actually related to the natural progression of the preexisting nonindustrial condition. (Franklin, supra, at pp. 243-246,145 Cal.Rptr. 22.) For apportionment under section 4663, unlike section 4750 as...