Franklin v. Workers' Comp. Appeals Bd.

• Court: California Court of Appeals
• Writing for the Court: COBEY
• Citation: 145 Cal.Rptr. 22,79 Cal.App.3d 224
• Decision Date: 30 March 1978
• Parties: Cecelia L. FRANKLIN, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD of the State of California, County of Los Angeles/USC Medical Center, Legally Uninsured, State Compensation Insurance Fund, Subsequent Injuries Fund of the State of California, Respondents. SUBSEQUENT INJURIES FUND of the State of California, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD of the State of California, County of Los Angeles/USC Medical Center, Legally Uninsured, Respondents; Cecelia L. FRANKLIN, Real Party in Interest. Civ. 51762 and Civ. 51781.

Page 22

145 Cal.Rptr. 22

79 Cal.App.3d 224

Cecelia L. FRANKLIN, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD of the State of California, County of Los Angeles/USC Medical Center, Legally Uninsured, State Compensation Insurance Fund, Subsequent Injuries Fund of the State of California, Respondents.

SUBSEQUENT INJURIES FUND of the State of California, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD of the State of California, County of Los Angeles/USC Medical Center, Legally Uninsured, Respondents;

Cecelia L. FRANKLIN, Real Party in Interest.

Civ. 51762 and Civ. 51781.

Court of Appeal, Second District, Division 3, California.

March 30, 1978.

[79 Cal.App.3d 230]

Geffner & Satzman and Robert Goldstein, Los Angeles, for Cecelia L. franklin

Evelle J. Younger, Atty. Gen., and N. B. Peek, Deputy Atty. Gen., for Subsequent Injuries Fund of the State of California.

John H. Larson, County Counsel, Milton J. Litvin, Division Chief Workers' Compensation Div., and James E. Garland, Deputy County Counsel, Los Angeles, for County of Los Angeles.

Robert A. La Porta, San Francisco, for State Compensation Insurance Fund.

COBEY, Acting Presiding Justice.

Cecilia L. Franklin, born November 29, 1938, sustained a cumulative trauma injury to her heart, arising out of and occurring in the course of her employment from January 2, 1957 through November 17, 1973, while employed as a registered nurse and attendant by the County of Los Angeles/University of Southern California Medical Center ("County"). Franklin sustained a myocardial infarct on November 17, 1973.

On reconsideration the Workers' Compensation Appeals Board ("Board") found that Franklin's heart disability established a seventy-nine (79) rating. The Board also found that one-half of Franklin's disability pre-existed her industrial injury. Accordingly, the Board awarded thirty-nine and one-half (391/2) per cent disability against County, her employer, and also awarded Franklin benefits against the Subsequent Injuries Fund (Lab.Code, §§ 4751, et seq.)

Franklin contends that there should be no apportionment and that all the disability related to her heart condition is the liability of her employer. She argues that the present apportionment is not based upon [79 Cal.App.3d 231] proper "legal" theories but rather upon "medical" theories which do not rest upon the legal principles of apportionment. Franklin asserts that if there is apportionment, then the disability apportioned away

from the employer's liability should be the liability of the Subsequent Injuries Fund. ¹

Subsequent Injuries Fund agrees in part with Franklin and argues there is no basis for apportionment in this case and hence it has no liability since there was no pre-existing disability prior to the industrial disability a necessary precondition to the imposition of liability upon it. Subsequent Injuries Fund further asserts that there is also no basis for apportionment to the natural progression of the pre-existing disease (Lab.Code, § 4663) since, in order to so apportion, the pre-existing condition must be actually disabling at the time of the industrial injury. In making the latter assertion, Subsequent Injuries Fund contends our Supreme Court in Zemke v. Workmen's Comp. App. Bd. (1968) 68 Cal.2d 794, 69 Cal.Rptr. 88, 441 P.2d 928, has so interpreted Labor Code section 4663. ²

County and its workers' compensation insurance carrier for the period prior to July 1, 1969, State Compensation Insurance Fund ("State Fund"), contend that the Board properly apportioned under section 4663 fifty per cent of Franklin's disability as non-industrial. County and State Fund argue that in the special case of the cumulative trauma injury apportionment should be made to the various industrial and non-industrial factors which concurrently contributed to Franklin's disability. State Fund and County also assert apportionment is justified since there is competent medical evidence that fifty per cent of Franklin's disability exists irrespective of any industrial contribution. Additionally, State Fund and County contend that apportionment is justified on the grounds that if Franklin had been examined prior to her myocardial infarct restrictions would have been placed upon her regarding her heart disease. State Fund and County acknowledge the latter argument would appear to conflict with the appellate decisions in Hulbert v. Workmen's Comp. Appeals Bd. (1975) 47 Cal.App.3d 634, 640, 121 Cal.Rptr. 239; Gross v. Workmen's Comp. Appeals Bd. (1975) 44 Cal.App.3d 397, 404-405, 118 Cal.Rptr. 609; and Amico v. Workmen's Comp. Appeals Bd. (1974) 43 Cal.App.3d [79 Cal.App.3d 232] 592, 606, 117 Cal.Rptr. 831, but they assert these appellate opinions conflict with other workers' compensation principles.

For the reasons stated herein, we hold that substantial evidence does not support the present finding of apportionment. Hence, the present award against Subsequent Injuries Fund cannot stand. We annul the award herein and remand to the Board for further consideration in light of the views expressed in this opinion.

I SUMMARY OF MEDICAL EVIDENCE

Before this court the parties agreed that Franklin sustained injury to her heart as the result of the stress and strain of her employment at County. Apportionment is the issue. Our review of the medical evidence is consequently limited to those portions pertinent to apportionment and Subsequent Injuries Fund liability.

Rueben Merliss, M.D., reported on behalf of Franklin. In his report of September 18, 1974, Dr. Merliss attributed Franklin's infarct to her work; he also opined Franklin at that time was totally temporarily disabled. As to the cause of her disability, Dr. Merliss stated:

"I believe that this patient's myocardial infarction is primarily due to arteriosclerosis, due in turn to her hypertension and a genetic disturbance in fat metabolism. However I believe that the infarct itself was both precipitated and aggravated by the patient's work. She gives a convincing description of hard work, which, although she was devoted to it, was quite

taxing. The attack itself appeared to occur directly while the patient was working, although she might have had some symptoms of a lesser degree for some days before, also while she was working

"Consequently I would believe that the patient's work has probably brought the attack on sooner than it would have come as a result of natural causes alone.

"I believe therefore that all of the disability due to this attack is industrial. . . . "

State Fund had Franklin examined by Alvin Markowitz, M.D. As indicated in his report of October 26, 1974, Dr. Markowitz' diagnoses were:

[79 Cal.App.3d 233] "1. Disease of the heart:

"a) arteriosclerotic

"b) healed myocardial infarction

"c) angina pectoris

"d) Class III B ³

"2. Previous history of hypercholesterolemia." ⁴

Dr. Markowitz felt that Franklin's heart condition was industrially related. However, Dr. Markowitz felt that apportionment was indicated:

"Apportionment is appropriate. The patient had a preexisting disability. The high cholesterol was caused and accelerated as a predisposing factor to the development of coronary arteriosclerosis. It is medically probable she would have had heart disease because of this genetic defect of the high cholesterol no matter what her occupation was, and this would be a preexisting disability. Had she been examined with a treadmill test and/or coronary angiogram prior to the infarct, indeed probably several years ago she would have been found to have advanced coronary artery disease, which although asymptomatic, would have been productive of producing a disability against certain work activities and against emotional stress. I therefore feel that 75 percent of this lady's permanent disability was not related to her work, but related to her high cholesterol, [79 Cal.App.3d 234] a metabolic and genetic predisposition to coronary artery disease. But, I do feel that this patient was under emotional stress as an RN, especially since the sectioning, which has occurred at the county hospital, which has brought on added duties and does account for 25 percent of her permanent disability."

County and Franklin then agreed to utilize Bernard M. Smolens, M.D., as an Agreed Medical Examiner. ⁵ Dr. Smolens

found Franklin's condition permanent and stationary. Dr. Smolens went on to state: "The factors of permanent disability are loss of myocardial contractility, excessive fatigue and the subjective complaints of angina on effort. According to the Guidelines for Work Capacity, . . . she is best described by h. (Disability Resulting in Limitation to Sedentary Work). The next question is that of apportionment, which I also feel . . . , is appropriate. There is no question but that she had some cardiac disability which could have been demonstrated on a treadmill and/or coronary angiogram. There is also the question in my mind that she would have ultimately sustained a myocardial infarction but the rather severe degree of physical and emotional stress under which she worked accelerated the ultimate infarction by impinging on her decreasing cardiac reserve. As a physician who also has spent time at the USC County Medical Center, I too, find entirely credible the patient's description of her work as to physical and emotional stress and overtime. Regarding the apportionment, I would feel that 50% of her permanent disability was industrial and 50% was related to her inborne metabolic disturbance."

Dr. Smolens was then cross-examined by the parties. Dr. Smolens at one point admitted he was apportioning along the lines of Dr. Markowitz, that is, had Franklin been examined by a treadmill or by an angiogram prior to her infarct she would have been placed on restrictions because of her coronary artery disease. Dr. Smolens then testified that based upon reasonable medical probability Franklin would have had fifty per cent of her present disability irrespective of any [79...