Cedillo v. Workmen's Comp. Appeals Bd.

• Decision Date: 16 August 1971
• Citation: 96 Cal.Rptr. 471,487 P.2d 1039,5 Cal.3d 450
• Court: California Supreme Court
• Parties: , 487 P.2d 1039 Carlos V. CEDILLO, Petitioner, v. WORKMEN'S COMPENSATION APPEALS BOARD, Aerojet-General Corporation et al., Respondents. L.A. 29849. In Bank

Page 471

96 Cal.Rptr. 471

5 Cal.3d 450, 487 P.2d 1039

Carlos V. CEDILLO, Petitioner, v. WORKMEN'S COMPENSATION APPEALS BOARD, Aerojet-General Corporation et al., Respondents.

L.A. 29849.

Supreme Court of California,

In Bank.

Aug. 16, 1971.

Donine, Donine & Cuthbert, and Marvin D. Donine, La Puente, for petitioner.

Rupert A. Pedrin, San Francisco, Sheldon M. Ziff, Gabriel L. Sipos, Los

Angeles, Thompson, Talbott & Lemaster, George D. Thompson and Graham W. Talbott, Pomona, for respondents.

PETERS, Justice.

Petitioner sustained a back injury in the course and scope of his employment on November 12, 1964. He was then 36 years of age. On January 21, 1966, the referee, pursuant to stipulations of the parties issued an award granting petitioner permanent disability of 8 3/4 percent after apportionment. Medical-legal costs were also awarded. There was no provision for medical treatment.

Petitioner then petitioned to reopen the case, and on February 3, 1967, the referee issued supplemental findings and award finding that petitioner needed further medical treatment and that his condition was not permanent and stationary. Specifically the award provided: '(c) Further medical treatment as set forth in Finding No. 7.' Finding No. 7 in its entirety reads: 'Further medical treatment to cure or relieve from the effects of this injury is required.'

On August 11, 1967, the referee issued an award for certain medical expenses and again awarded further medical treatment to relieve from the effects of injury. He used the same language as in the February award. The insurer petitioned for reconsideration, claiming that medical treatment should be apportioned. The petition for reconsideration was denied.

On November 16, 1967, Dr. Paul Harmon performed a laminectomy and spinal fusion on petitioner. The fusion was a posterior fusion between the spinous processes of L4 and L5, and L5 and S1. The operation was paid for by the insurer, and petitioner received temporary disability benefits for the time he was required to be off work. ¹

On June 9, 1969, the case came on for hearing before another referee. The issues raised were liability for self-procured treatment, medical-legal expense, permanent disability and apportionment, the attorneys' fees, and lien claims. No issue was raised by either party as to further medical treatment.

On August 18, 1969, the referee requested a permanent disability rating based upon a back injury resulting in permanent disability restricting applicant to no heavy lifting and no repetitive bending and twisting, to be apportioned two-thirds to the injury. The recommended rating after apportionment and deduction of the prior award was 3 percent. At petitioner's request, a supplemental hearing to cross-examine the rating specialist was held on November 5, 1969. After the hearing, the matter was submitted. ²

The referee, on February 11, 1970, issued an award of medical-legal expenses, self-procured medical expense, and 3 percent additional permanent disability. The award was silent as to future medical care.

Petitioner then sought reconsideration urging an award of lifetime medical care, and attacking the apportionment and the awards of medical-legal expense and self-procured medical expense. The insurer also sought reconsideration of the medical-legal expense.

In its decision now under review, the board granted additional self-procured medical expense and medical-legal expense, but denied the petitions in all other respects. As to the claim for future medical care the board stated: 'As to applicant's contention that further lifetime medical treatment should have been awarded in this matter, the issue of medical treatment was not among the issues raised at the hearing of June 9, 1969; the matter was not in issue, and the Referee could not rule thereon.'

In the petition for writ of review of the board's order, petitioner, assuming that the board's award has terminated his rights to medical care, urges that there is no evidence to support the termination and that the board could and should have awarded medical care. The board in its answer does not discuss whether or not the prior awards of medical care have been terminated but merely states that the issue of future medical care was not properly raised and the board could not decide it. The insurer in its answer to the petition for writ of review characterizes the findings as determining that petitioner is not entitled to further medical treatment.

At the oral argument before this court, the counsel for the board took the position that the instant award did not terminate the 1967 awards of further medical treatment.

Section 4600 of the Labor Code provides: 'Medical, surgical, 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. * * *' There is no provision for apportionment of medical expense reasonably necessary to relieve from the industrial injury, and medical expense is not apportionable. (Granado v. Workmen's Comp. App. Bd., 69 Cal.2d 399, 405--406, 71 Cal.Rptr. 678, 445 P.2d 294.)

The basis for the recovery of medical expense is that it be reasonably necessary to relieve from the effects of the industrial injury, and there is no provision requiring a finding of disability, temporary or permanent, as a condition to the recovery of such medical expense. It is thus apparent that the right of an injured employee to recover medical expense reasonably necessary to relieve from the effects of injury is independent of the right to recover for disability and the issue of apportionment, and there is no reason why the issues of medical expense and disability may not be separately dealt with by the board.

Under section 5803 of the Labor Code the 'appeals board has continuing jurisdiction over all its orders, decisions, and awards made and entered under the provisions of this division. At any time, upon notice and after an opportunity to be heard is given to the parties in interest, the appeals board may rescind, alter, or amend any such order, decision, or award, good cause appearing therefor. * * *'

It is clear that the appeals board retains jurisdiction to rescind its prior awards upon a showing of good cause after notice and an opportunity to be heard. But this does not mean that any subsequent award must be viewed as impliedly rescinding all prior awards.

Absent an express revocation of a prior award or an inconsistency between the awards, the subsequent award should not be viewed as rescinding the prior awards. Otherwise, there would be a trap for the unwary in those...