Fowler v. Workmen's Comp. Appeals Bd.
| Citation | 22 Cal.App.3d 756,99 Cal.Rptr. 609 |
| Parties | James C. FOWLER, Petitioner, v. WORKMEN'S COMPENSATION APPEALS BOARD of the State of California et al., Respondents. Civ. 1555. |
| Decision Date | 07 January 1972 |
| Court | California Court of Appeals |
Bradley & Conn, and Lloyd L. Hicks, Visalia, for appellant.
Mullen & Filippi, and Frank J. Filippi, San Francisco, for respondent Truck Ins. Exchange.
Rupert A. Pedrin, San Francisco, Workmen's Compensation Appeals Board, for respondent.
Petitioner is a farm laborer who on March 29, 1968, was seriously injured in an automobile accident; he seeks review of the opinion and order of the Workmen's Compensation Appeals Board denying reconsideration of the referee's findings and award; the referee found that petitioner was injured in the course of his employment with respondent Bell and that his injuries caused permanent partial disability. He also found that part of petitioner's permanent disability was attributable to a preexisting lower back disease and fixed the disability rating, after apportionment, at 30 percent. It is the finding leading to the apportionment that petitioner challenges in this proceeding; he asserts that the finding is not supported by substantial evidence.
The facts are undisputed. Petitioner injured his back in 1962 and was incapacitated for several weeks after that injury. He was examined by Dr. J. C. Williams, an orthopedic surgeon, who later, in a letter written to the Farmer's Insurance Company, indicated that at the time of the 1962 injury petitioner had 'a lumber radicular problem of a mild sort related to the extensive degenerative changes in his lumbar spine.' The doctor said that he re-examined petitioner in 1968, following the automobile accident, and that the back condition had not changed substantially since 1962; he opined that the 'low back and radicular problem' had nothing significant to do with the automobile accident.
Petitioner testified that within a few months after the 1962 injury his back ceased to hurt him and he was able to work as a farm laborer without pain, discomfort or medication until he was reinjured in the 1968 automobile accident. His testimony was corroborated by several witnesses.
Thomas Norton, who worked with petitioner from 1962 through 1965, said he saw petitioner load boxes weighing between 50 and 75 pounds, slash vines, drive a truch and tractor and swamp grapes and plums. He did not hear petitioner complain of back pain and did not see anything indicating that his fellow-employee was having any back trouble.
Alphonso Brabo testified that he worked with petitioner from 1962 through 1967 and saw him swamping grapes and driving grape stakes, using a 16-pound hammer. The witness explained that swamping grapes involves throwing full boxes of grapes a distance of about six feet to a man on a truck and that he had seen petitioner throw as many as thirty boxes a minute without ever complaining of back pain or back trouble.
W. L. Davidson stated that he worked with petitioner at Sam Bell's ranch building and tearing down fences, stacking cross ties, irrigating and doing general farm work. He said that the railroad cross ties weighed between 80 and 100 pounds and required exertion of 200 to 300 pounds of force to pull them out of the ground. Davidson testified that petitioner did the work without complaint and that he was a better farm worker than anyone else the witness had even worked with.
Despite the favorable evidence in petitioner's favor, both the referee and the board found that petitioner's present permanent disability was partially attributable to his pre-existing disease. They relied on the medical report of Dr. C. C. Hedberg which reads in pertinent part as follows:
'On March 26, 1962, he slipped and fell while stooping under a grape wire. . . .
'With reference to back complaints, examination shows partial restriction of dorsolumber spine function consistent with extensive degenerative osteoarthritic and disc degeneration changes which we know to have been present in advanced degree before 1962 when the back was symptomatic for a number of months as the result of an occupational strain sustained in March of that year.
'My conclusion with reference to the back, therefore is that restricted spinal mobility demonstrated by examination is largely, if not entirely, the result of extensive pre-existing pathology which was of such a degree as to render the patient exceptionally vulnerable to further injury and therefore to justify medical advice to restrict future activities to those of a light nature once it was discovered.
'I have nothing further to add to the previous discussion of the back problem except to emphasize the previously expressed opinion that current persisting subjective back complaints represent symptomatic aggravation contributed by the 1968 accident.'
It is statutory law that '(i)n case of aggravation of any disease existing prior to a compensable injury, compensation shall be allowed only for the proportion of the disability due to the aggravation of such prior disease which is reasonable attributed to the injury.' (Lab.Code § 4663.) The statutory mandate, however, 'must be read in light of the rule that an employer takes the employee as he finds him at...
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