Dow Chemical Co. v. Workmen's Compensation Appeals Bd.

• Decision Date: 17 October 1967
• Docket Number: S.F. 22532
• Citation: 432 P.2d 365,62 Cal.Rptr. 757,67 Cal.2d 483
• Court: California Supreme Court
• Parties: , 432 P.2d 365 DOW CHEMICAL CO. et al., Petitioners, v. WORKMEN'S COMPENSATION APPEALS BOARD, George Quick et al., Respondents.

Page 757

62 Cal.Rptr. 757

67 Cal.2d 483, 432 P.2d 365

DOW CHEMICAL CO. et al., Petitioners, v. WORKMEN'S COMPENSATION APPEALS BOARD, George Quick et al., Respondents.

S.F. 22532.

Supreme Court of California, in Bank.

Oct. 17, 1967.

Mullen & Filippi, Adolph J. Capurro, Hanna & Brophy, Ivan A. Schwab, Harold J. Scott, Arthur E. Varden, Sedgwick, Detert, Moran & Arnold, San Francisco, and C. Gordon Taylor, Oakland, for petitioners.

Thomas C. Lynch, Atty. Gen., B. Franklin Walker and Donald B. Day, Deputy Attys. Gen., Everett A. Corten and Marcel L. Gunther, San Francisco, for respondents.

PETERS, Justice.

Claimant George Quick was employed as a carpenter for Dow Chemical Co. from 1946 until January 1964. Beginning in 1949 he suffered back pains and distress caused primarily by lifting heavy items at work. In 1949, 1960, and 1961 he suffered specific back injuries that left him partially disabled, but he continued to work with short exceptions until January 2, 1964, at which time his back condition was so severe he had to give up his job.

On April 22, 1965, Quick filed with the Industrial Accident Commission three claims for disability benefits. The first (65 OAK 16733) was based on the 1949 back injury; the second (65 OAK 16734) the 1960 injury incurred while lifting heavy doors onto a truck and which disabled Quick for some three months; and the third (65 OAK 16735), the 1961 injury, incurred while prying timber with a crowbar and which also rendered Quick unable to work during various periods of time thereafter.

Named as defendants in the claims for the 1960 and 1961 injuries were Dow Chemical, Associated Indemnity Corp. (Dow's insurer in 1960--1961), and the state Subsequent Injuries Fund.

The three cases were consolidated for the purposes of hearing and receipt of evidence, and a hearing was held on July 29, 1965. Quick testified about the progressive deterioration of his back condition following the initial strain suffered in 1949 while lifting large bolts. In 1951--1952 he received therapy and traction from a chiropractor. He suffered another specific strain in 1953. After the incident in August 1960 his back pains were more severe and he was placed for a time on light duty by Dow. After the strain in December 1961 his ability to lift heavy objects and to bend over was very limited. In 1964 he had a back operation, but it did not eliminate the severe pain he suffers. He now must wear a back brace. Testimony of physicians corroborated Quick's account.

A further hearing was held September 14, 1965, at which the report of Dr. Hedberg was received. Dr. Hedberg examined Quick on August 12, 1965, and reviewed extensive medical records of the history of Quick's back ailment. He concluded that Quick had a worn-out back which no treatment could restore. He said Quick suffered a longstanding degenerative disease of the spine with progressive deterioration. Degenerative changes appeared on X-rays taken as early as 1954. Hedberg thought Quick's back was congenitally weak, that after the 1949 incident the exacerbations to the condition were too numerous to identify, and that the 1960 and 1961 strains were simply two of the more severe incidents of exacerbation. He said the major pathology was in existence in 1960 and probably would have progressed to the present condition of deterioration eventually simply as a result of strain caused by the ordinary activities of life, regardless of the specific strains suffered in 1960 and 1961. Nevertheless, he concluded that it would be medically permissible to rate Quick's permanent disability as it existed prior to the 1960 incident at 60 percent, dividing the remainder of his current total disability between the 1960 and 1961 incidents.

The referee's report of this hearing states that Dr. Hedberg's report indicated that the Beveridge principle was applicable to Quick's case and that Quick's attorney should file another claim on the basis of the Beveridge doctrine. ¹ The hearing was continued so that the additional complaint could be considered.

On September 17, 1965, Quick filed his application in the matter which we now have before us on writ of review. (65 OAK 17999). In it Quick alleges permanent disability caused by repetitive trauma from 1946 Until January 1964. ²

Hearing was held November 9, 1965, with the newly filed claim consolidated with the previously consolidated trio of claims for purposes of the hearing. Dow Chemical, the four insurance companies which insured it during 1946--1964, the state Subsequent Injuries Fund, and Quick were represented by counsel. Dr. Hedberg testified and repeated the substance of his written report and again took the position that Quick's back condition would probably have deteriorated eventually to its existing condition even if Quick had quit doing work in 1960 that involved lifting and bending. Quick's type of work in the 1960's merely caused his back deterioration to progress more rapidly. The transcript of this hearing contains the following:

Question by counsel for Associated Indemnity: 'Now, what you are saying * * * is that no matter how you categorize the episodes of 1960 and 1961, they are no more than, perhaps, more pronounced incidents than those that he (Quick) had prior, which led to the culmination of disability referable to the whole spine?'

Answer by Dr. Hedberg: 'That was my philosophy, after studying the whole case. I feel they were simply ones that stood out a little bit more, but there were many others along the line that he did not make a formal complaint of. * * * He had gotten accustomed to having these now and then, and these have been selected as supposed injuries, three only (this would refer to the 1949, 1960, and 1961 incidents), but that doesn't fit the medical picture as far as I am concerned, I think.'

The referee's report on the four cases was filed March 3, 1966, and on March 10 the WCAB filed its findings and award on each of the four matters then pending.

In the case involving the 1949 injury (65 OAK 16733) no award was made in Quick's favor.

In the case involving the August 1960 injury (65 OAK 16734) the WCAB found that Quick suffered a permanent disability rated at 7 1/2 percent, or 10 percent of his total permanent disability in 1966, which was found to be 75 percent. Associated Indemnity was ordered to pay specific sums for temporary and permanent disability benefits, plus 10 percent of medical-legal expenses for the consolidated cases and 10 percent of future medical expenses Quick should incur for treatment of his back condition.

In the case involving the December 1961 injury (65 OAK 16735) the WCAB again found that Quick suffered a permanent disability rated at 10 percent of his total disability, that is, 7 1/2 percent. Award was made against Associated Indemnity which was identical to the award made in the 1960 injury case (65 OAK 16734).

In the cumulative injury case (65 OAK 17909) the WCAB found that Quick suffered a cumulative injury to his back during the course of his employment from October 1946 To August 3, 1960 (the day before the specific back strain in 1960). The WCAB found that Quick's then existing total permanent disability was 75 percent and rated the cumulative injury as causing 80 percent of 75 percent, that is, a rating of 60 percent permanent disability. The WCAB apportioned the liability among the four insurance carriers who insured for Dow from 1946 to August 1960. The carriers were ordered to pay--pro rata--80 percent of the medical legal expenses of the four cases and 80 percent of the cost of further medical treatment for his back that Quick might require.

None of the parties to the cases involving specific injuries in 1949, 1960, and 1961 requested reconsideration by the WCAB. As a result, these awards became final. In the cumulative injury case (65 OAK 17909), however, reconsideration was sought by Quick, Dow Chemical, and three of the four defendant insurance carriers. Along with his petition for reconsideration Quick also filed an application for benefits against the state Subsequent Injuries Fund.

On April 22, 1966, the WCAB granted reconsideration in the cumulative injury case, further hearing was held, and on June 28 the WCAB filed its first opinion and decision after reconsideration. It was the same as the prior decision except for corrections made in computation and allocation of the award. Quick and Travelers Insurance Co. petitioned for further reconsideration, which was granted by the WCAB on September 15.

On November 15, 1966, the WCAB announced its final decision in the cumulative injury case. It held that Quick's cumulative injury, rated at 75 percent permanent disability, was incurred by repeated stress in the course of his employment from October 1946 to September 3, 1963. The WCAB stated it had 'taken notice' of the findings and awards made in 65 OAK 16734 (1960 injury case) and 65 OAK 16735 (1961 injury case), but concluded that the specific injuries in 1960 and 1961 should properly be viewed merely as two of the numerous exacerbations causing the cumulative injury. The board noted that Associated Indemnity had been ordered to pay awards in 65 OAK 16734 and 65 OAK 16735, and that it could not alter or amend those awards. Nevertheless, in order to prevent duplication of benefits to Quick, the WCAB ordered that Associated Indemnity be given credit on its liability under the decision in the cumulative injury case for all sums it had to pay in the cases involving the 1960 and 1961 injuries.

The final decision ordered the four insurance carriers to pay temporary and permanent disability and a life pension to Quick, to provide further medical treatment to Quick if necessary, and to pay for medicallegal expenses of the litigation. The precise sums payable to Quick for temporary and permanent disability and the weekly life pension were fixed in the decision; but allocation of liability among the four carriers was not made,...