Hegglin v. Workmen's Comp. App. Bd.

• Decision Date: 23 February 1971
• Citation: Hegglin v. Workmen's Comp. App. Bd., 93 Cal.Rptr. 15, 4 Cal.3d 162, 480 P.2d 967 (Cal. 1971)
• Court: California Supreme Court
• Parties: , 480 P.2d 967 Joseph C. HEGGLIN, Petitioner, v. WORKMEN'S COMPENSATION APPEALS BOARD, Airport Gardena Hotel Corporation, et al., Respondents. L.A. 29804.

Page 15

93 Cal.Rptr. 15

4 Cal.3d 162, 480 P.2d 967

Joseph C. HEGGLIN, Petitioner, v.WORKMEN'S COMPENSATION APPEALS BOARD, Airport Gardena Hotel Corporation, et al., Respondents.

L.A. 29804.

Supreme Court of California In Bank.

Feb. 23, 1971.

Kessler & Drasin, Lawrence Drasin and Roger J. Gleckman, Los Angeles, for petitioner.

Rupert A. Pedrin, San Francisco, Sheldon M. Ziff, Gabriel Sipos, Los Angeles, McLaughlin, Evans, Dalbey & Cumming, Hollywood, and Barry F. Evans, Los Angeles, for respondents.

SULLIVAN, Justice.

PetitionerJoseph C. Hegglin seeks review and annulment of the opinion and decision after reconsideration of the Workmen's Compensation Appeals Board(Board) which limited the rating for his permanent disability to 43 1/4 percent.

On February 15, 1964, petitioner, who was employed as a pastry chef, suffered an industrially caused accident when he slipped on a wet kitchen floor, striking his back against a sink and his feet against a freezer, and severely twisting his right knee.The injuries thus sustained required a medial menisectomy of the right knee which was performed on April 17, 1964, and a spinal fusion and laminectomy, which were performed a year later.

As a result of the multiple blood transfusions administered to petitioner in connection with the second operation, he contracted serum hepatitis, for which he was hospitalized from July 31, 1965 until September 12, 1965.He returned to work on December 15, 1965, but since that time he has been able to work only intermittently, and has repeatedly been hospitalized or confined to bed rest to treat recurrences of the hepatitis.

On December 18, 1964, petitioner filed an application with the Industrial Accident Commission(now the Board) seeking a determination of liability for temporary and permanent disability, for medical treatment and costs, and for litigation expense.A hearing was held on March 17, 1965, at which petitioner testified and medical reports were received in evidence.The case was continued until May 19, 1965, when a further hearing was held at which several of the doctors who had treated petitioner testified.On June 10, 1965, the referee filed findings and award establishing that both the knee and back injuries were caused by the accident and providing for temporary disability indemnity and further medical treatment.Respondents' petition for reconsideration was denied.

At the request of petitioner's counsel, and upon advice of Dr. Goldfarb, petitioner's treating physician for hepatitis, a supplemental hearing was held on October 25, 1968 to determine liability for permanent disability.Petitioner testified and the medical reports of several doctors regarding his hepatitis condition were received in evidence.On the basis of this evidence the referee requested a permanent disability rating giving the following description of the factors of disability: 'Back disability precluding applicant from work involving lifting more than 25 pounds or bending; constant slight numbness and weakness of lower right leg and knee becoming slight to moderate upon prolonged weightbearing; slight to moderate fatigue due to Hepatitis after two hours of work activity becoming moderate after six hours limiting applicant to light work activities.'The rating bureau returned a recommended rating of 71 percent, assigning the hepatitis condition a rating of 50 percent, the back injury a rating of 35 percent and the knee injury a rating of 5 percent.The individual ratings were then properly adjusted to reflect petitioner's age and occupation and modified by use of the multiple disabilities rating schedule.On December 19, 1968, the referee filed supplemental findings and award, finding permanent disability of 71 percent and awarding petitioner accrued but unpaid temporary disability indemnity, permanent disability indemnity payable at specified weekly rates for the remainder of his life, lifelong medical treatment and other miscellaneous items.

The Board granted the employer's petition for reconsideration and ordered petitioner to be examined by Dr. Thomason of the Medical Bureau of the Division of Industrial Accidents.On April 4, 1969, Dr. Thomason reported the results of his examination, stating at the conclusion of his report the following: 'DISCUSSION AND OPINION.There is a disability as a result of the injury which is permanent and stationary as far as the back and right knee are concerned.(Par.)Factors of Disability: 1.Loss of back motion.2.Very slight instability of right knee.3.The subjective complaints are considered slight for the back and slight for the right knee.4.Because of the giving way of the right knee, he should not walk on uneven terrain nor should he climb stairs rapidly.(Particularly downstairs) 5.Because of the back, he should be precluded from heavy work and limited to moderate work.'Dr. Thomason declined to render an opinion as to petitioner's hepatitis since he did not 'feel qualified to determine the disability and future care of such.'The Board then requested a permanent disability rating upon the following description of the factors of disability: 'Constant slight pain in the low back increasing after being on feet for 3 or 4 hours.(Par.)Right knee disability with slight pain after being on feet for 3 or 4 hours or in cold weather which gives way when walking on uneven terrain or in sand.Because of knee disability applicant should not walk on uneven terrain nor should he climb or descend stairs rapidly.(Par.)Slight to moderate fatigue from hepatitis limiting applicant to no heavy work or heavy exertion.'The rating bureau returned a recommended rating of 43 1/4 percent, assigning a rating of 30 percent to the hepatitis condition, 10 percent to the back condition and 10 percent to the knee injury.The individual ratings were then properly adjusted by use of the multiple disabilities rating schedule.

On June 12, 1969, a supplemental hearing was held at which the rating specialist was cross-examined and petitioner testified in rebuttal.A further supplemental hearing, at which Drs. Thomason and Goldfarb were cross-examined, was held on December 11, 1969.At the conclusion of the cross-examination petitioner sought to testify in rebuttal to Dr. Goldfarb's testimony.Petitioner also sought to call Dr. Field, an internist who had examined petitioner with regard to his hepatitis condition.However, the Board found such testimony unnecessary and denied petitioner's motions for further hearings to present such testimony.

On February 11, 1970, the Board rendered its opinion and decision after reconsideration.The Board stated: 'Although the report of permanent disability describes applicant's back condition in terms of subjective complaints, we are satisfied that applicant is precluded from heavy work as a result of both his back condition and hepatitis.He is precluded from heavy work by either or both conditions, and separately stating the conditions causing the preclusion will not affect the rating which results from the preclusion in this situation.* * * We are persuaded that it would be erroneous to describe the disabilities arising from both the back injury and the hepatitis as precluding applicant from heavy work and suggesting that the two be added together.Based on the foregoing description, the Permanent Disability Rating Specialist has recommended a permanent disability rating of 43 1/4 percent after application of the multiple disabilities table.* * * We are satisfied that applicant's disability is properly rated at 43 1/4 percent and we are not persuaded that this rating was altered in the course of the cross-examination of the Permanent Disability Rating Specialist.'Accordingly, as part of said opinion the Board made its findings and award determining that petitioner's injury caused permanent disability of 43 1/4 percent (instead of 71 percent) and awarding petitioner permanent disability of $9,082.50 (instead of $14,910), thereby eliminating a lifetime pension, but providing for lifetime medical care and treatment.

Initially, petitioner contends that the Board gave him no permanent disability rating for his hepatitis condition.He argues that on the uncontradicted testimony, his back condition limited him from lifting more than 25 pounds and merited a rating of 30 percent (which it was given in the rating based on the referee's description of the factors of disability).Petitioner notes that the rating given on the Board's description assigns the back a rating of 10 percent for the slight pain, but no rating on the inability to lift more than 25 pounds.The factor of inability to perform heavy work was included in the Board's description of the hepatitis condition, and that condition was given a 30 percent rating.Thus, petitioner contends, he would have received the same overall 40 percent rating (30 percent for inability to do heavy work plus 10 percent for slight pain) had he never suffered the hepatitis at all.He therefore concludes that the Board must totally have ignored the factors of disability caused by his hepatitis.

Contrary to petitioner's claim, the Board did not ignore his hepatitis condition.It gave the following description in its request for a rating: 'Slight to moderate fatigue from Hepatitis limiting applicant to no heavy work or heavy exertion.'(Italics added.)Thus, petitioner did receive a rating for his hepatitis condition.

What actually happened, as revealed by the Board's decision, was that the Board though 'it would be erroneous to describe the disabilities arising from both the back injury and hepatitis as precluding applicant from heavy work and suggesting that the two be added together.'The Board, therefore, deleted from its description of the back injury any mention of the limitation from heavy work.As we apprehend it, the point of petitioner's contention appears to be this: that the last mentioned action by the Board In effect...