Fred Gledhill Chevrolet v. Industrial Acc. Commission

• Decision Date: 17 November 1964
• Citation: 41 Cal.Rptr. 170,62 Cal.2d 59
• Court: California Supreme Court
• Parties: , 396 P.2d 586 FRED GLEDHILL CHEVROLET et al., Petitioners, v. INDUSTRIAL ACCIDENT COMMISSION, Jesse L. Allison et al., Respondents. L. A. 27988.

Page 170

41 Cal.Rptr. 170

62 Cal.2d 59, 396 P.2d 586

FRED GLEDHILL CHEVROLET et al., Petitioners, v. INDUSTRIAL ACCIDENT COMMISSION, Jesse L. Allison et al., Respondents.

L. A. 27988.

Supreme Court of California, In Bank.

Nov. 17, 1964.

Smith & Wilson and Bernard S. Shapiro, Beverly Hills, for petitioners.

Everett A. Corten, San Francisco, Edward A. Sarkisian, Los Angeles, Edwin Silver, Wilmington, Clopton & Penny and Robert R. Wills, Los Angeles, for respondents.

PETERS, Justice.

This proceeding involves the proper allocation of liability for temporary disability indemnity and medical care where the applicant has suffered a series of injuries, in this case four. The Industrial Accident Commission made the award against Universal Underwriters Insurance Company, the carrier at the time of the third and fourth injuries. This award is supported by the factual determinations made by the commission, and these findings are based on substantial evidence. For these reasons the award should be affirmed.

Applicant, Jesse Allison, worked as an automobile mechanic. In the course and scope of his employment, he sustained injuries to his back on four occasions September 1953, while employed by Cormier Chevrolet Co., April 1958, November 1961, and July 1962, at which times he was employed by Fred Gledhill Chevrolet. Pacific Indemnity Company was the carrier at the time of the first two injuries, Universal at the time of the latter two. After the second injury, applicant had a spinal fusion. The surgery was not completely successful and there resulted a false fusion, or the condition known as pseudo-arthrosis. He continued to feel some pain, but returned to work. He was somewhat restricted on the job, and was favored with the easier work. The third injury resulted in a great increase in pain, and also further restricted his working ability for a period. The fourth injury resulted in such incapacity that he could no longer work at his job, and he was discharged. Throughout the period involved applicant was under medical supervision, and both testimony and medical records were presented by the several parties. Conflicts in the evidence resulted in the appointment of an independent medical examiner, Dr. Rohrer, whose testimony was based upon an examination of the applicant, as well as upon a review of the medical records and the testimony of the other doctors. All of the medical evidence is in agreement that the first operation had not been completely successful and that, at present, further surgery is required.

Applications for compensation for all four injuries were consolidated and, after hearings, an award for temporary disability and medical care was made against Universal. There was no apportionment. Universal's petition for reconsideration was denied by the commission. As applicant's condition had not yet become permanent and stationary, no decision was made with respect to liability for permanent disability.

It is well settled that the acceleration, aggravation, or 'lighting up' of a preexisting nondisabling condition is an injury in the employment causing it (Tanenbaum v. Industrial Acc. Com., 4 Cal.2d 615, 52 P.2d 215), and 'If the resultant disability is entirely due to the industrial injury lighting up the previous dormant condition, then the employer is liable for that disability and there can be no apportionment.' (State Subsequent Injuries Fund v. Industrial Acc. Com., 135 Cal.App.2d 544, 549, 288 P.2d 31, 34). The award against Universal alone is based on the factual determination that the present incapacity to work and earn wages, and the present need for further surgery, the attributable to the third and fourth injuries.

'Whether a disability results in whole or in part from 'the normal progress of a pre-existing disease' (citation) or represents a fully compensable lighting up or aggravation of a pre-existing condition is a question for the Commission to determine, and its award will not be annulled if there is any substantial evidence to support it.' (Argonaut Ins. Co. v. Industrial Acc. Com., 57 Cal.2d 589, 593, 21 Cal.Rptr. 545, 547, 371 P.2d 281, 283; see also American Can Co. v. Industrial Acc. Com., 196 Cal.App.2d 445, 16 Cal.Rptr. 424.) Judicial review is limited to a determination whether there is any substantial evidence, contradicted or uncontradicted, that will support the award. (Douglas Aircraft, Inc. v. Industrial Acc. Com., 47 Cal.2d 903, 905, 306 P.2d 425; Lab.Code, §§ 5952, 5953.)

Although there was conflicting evidence, the testimony of Dr. Rohrer, upon which the commission was entitled to rely, supports its findings. It was to the following effect. A condition of...