Granado v. Workmen's Compensation Appeals Bd.

Decision Date04 October 1968
Docket NumberS.F. 22599
Citation445 P.2d 294,71 Cal.Rptr. 678,69 Cal.2d 399
CourtCalifornia Supreme Court
Parties, 445 P.2d 294 Henry GRANADO, Petitioner, v. WORKMEN'S COMPENSATION APPEALS BOARD, Haslett Warehouse, et al., Respondents.

Marcus, Sherbourne & Rucka and N. Michael Rucka, Pleasant Hill, for petitioner.

Morgan, Beauzay & Hammer and Victor H. Beauzay, San Jose, as amici curiae on behalf of petitioner.

Everett A. Corten, Selma Mikels and John W. Moore, San Francisco, for respondents.

PETERS, Justice.

Petitioner seeks annulment of a decision after reconsideration by the Workmen's Compensation Appeals Board which apportioned liability for temporary disability compensation and medical treatment subsequent to April 1, 1966, 50 percent to respondent carrier and 50 percent to petitioner. The basis of the apportionment was a neck injury not industrially related suffered August 1961 and a subsequent industrial injury to the neck suffered April 13, 1965.

Petitioner urges: (1) Temporary disability is not apportionable; (2) medical treatment is not apportionable; and (3) even assuming that in a proper case apportionment might be permitted, the record does not support apportionment here. The first two contentions are meritorious.

Section 4663 of the Labor Code provides: 'In 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 reasonably attributed to the injury.' In cases involving Permanent disability, it is settled that the section must be read in light of the rule that an employer takes the employee as he finds him at the time of employment; that, when subsequent injury lights up or aggravates a previously existing condition resulting in disability, liability for the full disability without proration is imposed upon the employer, and that the appeals board may apportion the disability under the section 'only in those cases in which part of the disability would have resulted, in the absence of the industrial injury, from the 'normal progress" of the preexisting disease. (E.g., Zemke v. Workmen's Compensation Appeals Board, 68 A.C. 835, 837 et seq., 69 Cal.Rptr. 88, 90, 441 P.2d 928, 930; Berry v. Workmen's Compensation Appeals Board, 68 A.C. 828, 831 et seq., 69 Cal.Rptr. 68, 441, P.2d 908; Reynolds Elec., etc., Co. v. Workmen's Compensation Appeals Board, 65 Cal.2d 438, 442--443, 55 Cal.Rptr. 254, 421 P.2d 102.) The board's position is that this rule should be applied to Temporary disability cases.

This court has not squarely decided whether there may be apportionment of temporary disability liability between industrial injuries and nonindustrial injuries although it has hinted that it cannot. In Fred Gledhill Chevrolet v. Industrial Accident Commission, 62 Cal.2d 59, 63, 41 Cal.Rptr. 170, 396 P.2d 586, an award denying apportionment was supported by substantial evidence, and we found it unnecessary to decide whether the apportionment provisions apply 'at all' to compensation for temporary disability. (See also American Can Co. v. Industrial Accident Commission, 196 Cal.App.2d 445, 449, 16 Cal.Rptr. 424.) In Royal Globe Ins. Co. v. Industrial Accident Commission, 63 Cal.2d 60, 45 Cal.Rptr. 1, 403 P.2d 129, we were concerned with the apportionment of liability between Insurers for temporary disability where the disability was caused by successive industrial injuries. Thus we were not directly confronted with the question whether temporary disability may be apportioned as between industrial and nonindustrial injuries. There is a substantial difference between the rules governing apportionment between industrial injuries and those governing apportionment between industrial and nonindustrial injuries. Thus, in cases of progressive occupational diseases, the employee may at his option obtain an award for the entire disability against any one or more of the successive employers or successive insurance carriers, but the employers or carriers are entitled to apportionment among themselves, and apportionment for them is proper not merely where the disability would result from the normal progress of the preexisting disease but also in cases of aggravation wherever the successive employments contributed in part to the disability even though the prior employment alone would not have resulted in any disability. (Fireman's Fund Indem. Co. v. Industrial Accident Commission, 39 Cal.2d 831, 835, 250 P.2d 148; Colonial Ins. Co. v. Industrial Accident Commission, 29 Cal.2d 79, 82 et seq., 172 P.2d 884.)

Although Royal Golobe Ins. Co. v. Industrial Accident Commission, supra, 63 Cal.2d 60, 45 Cal.Rptr. 1, 403 P.2d 129, did not directly involve the question of apportionment of temporary disability between industrial and nonindustrial injuries, the language of the opinion and much of its reasoning bears significantly on that question. A footnote states: 'It should be noted that we are here involved only with apportionment between insurance carriers. There can be no apportionment as to the injured worker. Both Royal Globe and State Fund may be held fully liable (jointly and severally) to him (Fireman's Fund Indem. Co. v. Industrial Acc. Comm., supra, 39 Cal.2d 831, 835, 250 p.2d 148; Colonial Ins. Co. v. Industrial Acc. Comm., supra, 29 Cal.2d 79, 82, 172 P.2d 884).' (63 Cal.2d at p. 62, fn. 1, 45 Cal.Rptr. at p. 3, 403 P.2d at p. 131.) In considering the commission's argument that the injured worker should not have to wait for the termination of protracted hearings on technical questions of apportionment to recover his temporary disability payments, we pointed out that the employee need not be required to wait for determination of the apportionment question to receive his award and that the proper procedure was for the commission to hold at least the last employer fully liable to the workman before holding a separate proceeding to determine the apportionment question. (63 Cal.2d at p. 63, 45 Cal.Rptr. 1, 403 P.2d 129.) The decision in Royal Globe Ins. Co. was followed in Fibreboard Paper Products Corp. v. Industrial Accident Commission, 63 Cal.2d 65, 67, footnote 1, 45 Cal.Rptr. 5, 403 P.2d 133. Other authorities have also stated that temporary disability is not apportionable to preexisting nonindustrial injuries. (See American Can Co. v. Industrial Accident Commission, supra, 196 Cal.App.2d 445, 448, 16 Cal.Rptr. 424; 2 Hanna, California Law of Employee Injuries and Workmen's Compensation (2d ed. 1967) § 13.03(6).)

In considering whether the rules permitting apportionment in permanent disability cases should be applied to temporary disability benefits, it must be recognized that there are substantial differences between the purposes and bases of the two benefits. The primary element of temporary disability is wage loss. (Fred Gledhill Chevrolet v. Industrial Accident Commission, supra, 62 Cal.2d 59, 62, 41 Cal.Rptr. 170, 396 P.2d 586; Allied Compensation Ins. Co. v. Industrial Accident Commission, 211 Cal.App.2d 821, 831, 27 Cal.Rptr. 918; American Can Co. v. Industrial Accident Commission, supra, 196 Cal.App.2d 445, 451, 16 Cal.Rptr. 424; 2 Larson, Workmen's Compensation Law (1961) § 57.10, pp. 2--3.) Thus, section 4650 of the Labor Code provides: 'If an injury causes temporary disability, a disability payment shall be made for one week in advance as wages on the eighth day after the injured employee leaves work as a result of the injury; * * *.' Section 4653 covers temporary total disability and provides that 'the disability payment is 65 per cent of the average weekly earnings during the period of such disability, consideration being given to the ability of the injured employee to compete in an open labor market.' Section 4654 covers temporary partial disability and provides that '* * * the disability payment is 65 percent of the weekly loss in wages during the period of such disability,' and section 4657 also dealing with partial disability provides that 'the weekly loss in wages shall consist of the difference between the average weekly earnings of the injured employee and the weekly amount which the injured employee will probably be able to earn during the disability, to be determined in view of the nature and extent of the injury.'

On the other hand, permanent disability is not based solely on loss of wages but is based both on actual incapacity to perform the tasks usually encountered in one's employment and on physical impairment of the body that may or may not be incapacitating. (Madin v. Industrial Accident Commission, 46 Cal.2d 90, 97--98, 292 P.2d 892; Smith v. Industrial Accident Commission, 44 Cal.2d 364, 367, 282 P.2d 64; Allied Compensation Ins. Co. v. Industrial Accident Commission, supra, 211 Cal.App.2d 821, 831--833, 27 Cal.Rptr. 918.)

The legislative policy of making temporary disability payments a substitute for lost wages would be frustrated to a substantial degree if the disabled worker must await doctor's examinations, complex reports, and the resulting hearing, which may be protracted, to determine the question of apportionment of disability. If apportionment is permitted, employers can be expected, when apportionment questions arise, to withhold temporary disability payments until determination of the question, thus frustrating the policy reflected by section 4650 of the Labor Code requiring payment of temporary benefits on the eighth day after the injured employee leaves work. The expeditious payment of benefits is part of the 'social public policy of this State' (Cal.Const. art. XX, § 21), and any delay in the payment of temporary benefits, the substitution for wages of...

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