Hulbert v. Workmen's Comp. Appeals Bd.

• Decision Date: 29 April 1975
• Citation: 47 Cal.App.3d 634,121 Cal.Rptr. 239
• Parties: Raymond S. HULBERT, Petitioner, v. WORKMEN'S COMPENSATION APPEALS BOARD and the Pacific Telephone and Telegraph Company, Respondents. Civ. 35402.
• Court: California Court of Appeals

Page 239

121 Cal.Rptr. 239

47 Cal.App.3d 634

Raymond S. HULBERT, Petitioner, v. WORKMEN'S COMPENSATION APPEALS BOARD and the Pacific Telephone and Telegraph Company, Respondents.

Civ. 35402.

Court of Appeal, First District, Division 1, California.

April 29, 1975.

Howard A. Pentoney, Sapper, Pentoney & Stone, Eureka, for petitioner. at Henry E. Rodegerdts, Downey, Brand, Seymour & Rohwer, Sacramento, for respondent The Pacific Tel. and Tel. Co.

Frank H. Batlin, Philip M. Miyamoto, Thomas J. McBirnie, Workmen's Compensation Appeals Board, San Francisco, for respondent Workmen's Compensation Appeals Board.

ELKINGTON, Associate Justice.

On the petition of Raymond S. Hulbert, we review a partial permanent disability award granted him by the Workmen's Compensation Appeals Board.

Hulbert was employed as a telephone equipment repairman. Around 1951 he was subjected to a laminectomy of the lower back. The operational result was 'good.' About five months later he returned to his employment where he performed 'his regular work without restrictions' for about 20 years. He had 'no problems climbing the ladders or doing his work.' During that period he 'did not lose any time from work,' nor did he 'require medical care.' He did 'the same work as any other man,' and 'in addition, he built a three-bedroom house in his spare time.' He did, however, during the 20-year period, have 'occasional mild episodes of low back pain,' but it was 'not disabling.'

In 1971 Hulbert suffered an industrial injury. Following appropriate proceedings the respondent board found him to have a 30 percent partial permanent disability. Then, ostensibly applying Labor Code section 4750, the board 'apportioned' out five-sixths of that disability as existing prior to the 1971 injury. A workmen's compensation award then issued, based upon a 5 percent (or 5 1/2 percent) partial permanent disability.

In the proceedings the board received in evidence reports of five medical examiners, three or whom appear to have been engaged by the self-insured employer and two by Hulbert. None of these doctors found Hulbert's disability traceable in any way to his 1951 medical trouble. On did not think that the current disability was 'a recurrence of his old disc problem.' Another reported this 'in my opinion, Mr. Hulbert's backaches, unequivocally are caused by his back injury of June 8, 1971.' Yet another said, 'I do not believe (the present symptoms) are associated with the previous back injury.' The fourth doctor reported no relationship between the 1951 laminectomy and the 1971 disability, while the fifth found Hulbert's occasional back pain 'not disabling, during the intervening years.' (Emphasis added.)

The board, however, caused a doctor from its own medical bureau to examine Hulbert. He testified that although the applicant was always able to do his work, from 'time to time' he suffered intermittent back pain which, in the doctor's opinion, would 'probably be more than minimal.' This occasional pain, traceable to the 1951 incident, the witness opined, caused Hulbert a 25 percent permanent disability, even before his 1971 injury. On further questioning the doctor agreed that during Hulbert's 20 years of continuous employment preceding his industrial injury, he had no 'symptomatology which required medical treatment,' and further, that 'a lot of people without injuries get backaches.' The board's apportionment of five-sixths of Hulbert's disability as preexisting his 1971 industrial accident, was based solely on the testimony of this witness.

Binding upon us is the recent declaration of the state's Supreme Court in LeVesque v. Workmen's Comp. App. Bd. (1970) 1 Cal.3d 627, 637, 83 Cal.Rptr. 208, 463 P.2d 432.

The court there stated:

'In reviewing the evidence our legislative mandate and sole obligation . . . is to review the Entire record to determine whether the board's conclusion was supported by substantial evidence.' (Emphasis added.)

LeVesque (1 Cal.3d, pp. 635--637, 83 Cal.Rptr. 208, 215, 463 P.2d 432, 439) specifically rejected earlier judicial declarations that an award of the board must be sustained, if supported by 'any evidence' (see Jones v. Workmen's Comp. App. Bd. (1968) 68 Cal.2d 476, 479, 67 Cal.Rptr. 544, 439 P.2d 648; Rogers Materials Co. v. Ind. Acc. Com. (1965) 63 Cal.2d 717, 721, 48 Cal.Rptr. 129, 408 P.2d 737), or 'any substantial evidence' (see Douglas Aircraft Co., Inc. v. Ind. Acc. Com. (1957) 47 Cal.2d 903, 905, 306 P.2d 425; Baker v. Industrial Acc. Com. (1966) 243 Cal.App.2d 380, 390, 52 Cal.Rptr. 276). Although such a rule may continue in other fields of our law, in workmen's compensation cases a reviewing court is no longer mandated to inquire only 'whether there is Substantial evidence in favor of the respondent'; and then if such be found, 'no matter how slight it may appear in comparison with the contradictory evidence,' be bound to affirm the decision under review. (See Walton v. Bank of California (1963) 218 Cal.App.2d 527, 540, 32 Cal.Rptr. 856, 865; 6 Witkin, Cal. Procedure (2d ed. 1971) Appeal, § 249, p. 4241.) Nor is Mr. Witkin's terse section head condensation of the rule as to what ordinarily constitutes substantial evidence, i.e., 'Slight Evidence of Respondent,' while 'Overwhelming Evidence of Appellant (is) Disregarded' (op. cit. supra, §§ 248, 249, pp. 4240, 4241), any longer apposite in such cases.

LeVesque gives effect to Labor Code section 5952, which provides that:

'The review by the court shall not be extended further than to determine, Based upon the entire record . . . whether: . . . (d) The order, decision, or award was not supported by substantial evidence. . . .' (Emphasis added.)

But in its review of the entire record, the reviewing court is further admonished by section 5952 that:

'Nothing in this section shall permit the court . . . to exercise its independent judgment on the evidence.'

It will be seen that under LeVesque our function in workmen's compensation cases is to consider the weight or persuasiveness of all of the evidence, as contrasted with that tending to support the board's decision. For unless we do so we have not reviewed the 'entire record to determine whether the board's conclusion was supported by substantial evidence.' But on the other hand, by mandate of Labor Code section 5952, we may not exercise our 'independent judgment on the evidence.'

The narrow area of our review is not made clear by LeVesque, but we are aided by other decisions of the court. In Dimmig v. Workmen's Comp. Appeals Bd. (1972) 6 Cal.3d 860, 864, 101 Cal.Rptr. 105, 495 P.2d 433 and Reinert v. Industrial Acc. Com. (1956) 46 Cal.2d 349, 358, 294 P.2d 713, 718, it was held that: 'Where . . . there is no Real dispute as to the facts, the question of whether an injury was suffered in the course of employment is one of law and a purported finding of fact on that question is not binding on an appellate court.' (Emphasis added.) While this authority is by its terms limited to the inquiry whether an injury was sustained in the course of a workman's employment, it seems equally applicable to any attack on an award of the board, based upon insufficiency of the evidence.

It follows that our inquiry in the instant case is whether there was a 'real dispute as to the facts' upon which the board's conclusion that five-sixths of Hulbert's disability antedated his 1971 injury, were based. If there was such a real dispute the board's award must stand; if there was none we may set it aside for in that case it is not binding upon us.

Also of concern to us is Labor Code section 3202 which provides: 'The provisions of Division 4 and...