Industrial Indem. Co. v. Industrial Acc. Commission

• Citation: 213 P.2d 11,95 Cal.App.2d 443
• Court: California Court of Appeals Court of Appeals
• Decision Date: 30 December 1949
• Parties: INDUSTRIAL INDEMNITY CO. v. INDUSTRIAL ACCIDENT COMMISSION et al. Civ. 17296.

Page 11

213 P.2d 11

95 Cal.App.2d 443

INDUSTRIAL INDEMNITY CO. v. INDUSTRIAL ACCIDENT COMMISSION et al.

Civ. 17296.

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

Dec. 30, 1949.

Rehearing Denied Jan. 18, 1950.

Herlihy & Herlihy, Los Angeles, for petitioner.

T. Groezinger, Robert Ball, San Francisco, for respondent Industrial Accident Commission.

WOOD, Justice.

Review of proceedings of the Industrial Accident Commission. An award was made, based upon a permanent disability rating of $55 1/2%. Petitioner herein, which is the compensation insurance carrier for the employer, asserts that one-half of that disability rating should have been apportioned to pre-existing or independently developing arthritis.

On April 28, 1945, Edward A. Thomas, an employee of the United Concrete Pipe Corporation, was injured while he, as a welder foreman, was inspecting work that had been done in the engine room of a ship. In order to go to a certain place which he intended to inspect, it was necessary that he walk upon a '2 X 12' board--one end of which rested on the top of an engine and the other end rested on some object on the side of the room. The board was 26 feet above the floor. Above the board and under the deck, there was an angle-iron, known as a deck stiffener, which extended across the room. Mr. Thomas was holding onto the deck stiffener as he started to walk upon the board. When he stepped on the board it fell to the floor of the engine room, and then he, in order to avoid falling to the floor himself, hung to the deck stiffener with his left hand for a moment, and then he 'hand-over-handed' along the deck stiffener for a distance of 20 feet to a place of safety at the side of the room. His weight was 265 pounds. He felt no discomfort at that time (about noon), and he continued to work but in the evening he noticed a little stiffness in both shoulders and arms and in the base of his neck, and about midnight he had pain therein. He did not return to work until June 10, 1945. During the time he was not working he was furnished medical treatment and was paid temporary disability compensation by the petitioner. About one week after he returned to work he was discharged.

Thereafter he obtained employment at a welding company, but after two weeks he quit that employment because, according to his testimony, the condition of his hands and arms was such that he could not do the work. He testified that during that time when he put a strain on his hands and arms they became numb and ached and that the ache extended through both shoulders. Thereafter for about five months he worked for himself manufacturing fishing tackle, but he earned only enough money to get something to eat. In the latter part of November, 1945, he was employed as a musician at $76 a week (he had been a musician before the war), but he did not get along very well because, according to his testimony, he no longer had 'facility' in his fingers and there was impairment of flexibility in his fingers. He continued with that work until July, 1946, when his employer told him that 'he could not make the grade.' Thereafter he worked for himself manufacturing fishing tackle until November, 1947, during which time he earned about $150 a month. Then he was employed by a company which manufactured fishing tackle and he earned $40 a week.

Mr. Thomas filed his application for adjustment of his claim on August 30, 1948. The hearing of the application was had on September 23, 1948.

Mr. Thomas testified further that he never had any other injuries to his shoulders or arms; about six months after the accident involved here the employer herein (United Concrete Pipe Corporation) told Mr. Thomas' wife by telephone that it was no longer liable for medical treatment and that it was through with the accident because there was a sedimentation rate in his blood and that was the cause of his trouble; he had obtained and paid for medical treatment on his own account from Dr. Blunden, who sent him to the Good Samaritan Hospital and St. Vincent's Hospital for X-ray irradiation through both shoulders, which treatments continued over a period of 90 days; he has had numbness in his hands and arms since the accident whenever he used his hands in a rigid or stationary position while supporting a weight; he has a severe pain in his forearms, upper arms and shoulders when he lifts or holds anything of any weight; after releasing such hold he can relieve the pain by shaking his hands; he has no discomfort when he is very warm; the pain is sharper in cool weather; the function of his shoulders is impaired; pain on the right side is greater than it is on the left side because he uses his right arm more; and he has been seeing Dr. Blunden continuously since July 4, 1948, when he had a severe attack.

He was examined by Dr. Lee, the employer's physician, on May 7, 1945, who reported that the injury was a partial tear or strain of infra-spinatus tendon of the left shoulder; he estimated the period of treatment as six or eight weeks and the period of total disability as two or three weeks.

On May 22, 1945, Dr. Schroeder, the employer's physician, examined him and reported that he continues to have severe pain of a nagging character in his shoulders, that slow improvement continues, that there should be further treatment for six weeks, and there is not permanent disability.

Dr. Chipman, the insurance carrier's physician, examined him on May 31, 1945, and reported that he is apparently suffering from a strain to the muscles of the left shoulder and arm, that disability would continue another two or three weeks, that daily physiotherapy and exercises at his office were instituted, and there should be no permanent disability. Dr. Chipman examined him again on June 26, 1945, and reported that the patient has a definite leucocytosis and increased sedimentation rate indicative of some systemic local infection, and it is possible that the pain through the left shoulder and arm is caused by this systemic toxemia; there is nothing in the examination that substantiates his complaints; the patient is able to return to any type of work; that treatments should be directed to the clearing up of any systemic infection.

Dr. Feldman, the insurance carrier's physician, examined him on July 24, 1945, and reported that there is evidence of some hypertrophic arthritis on some of the cervical vertebrae and some calcific deposit in the tip of the spinous process, which is of no clinical significance; that the patient may have suffered some strain about the scapular muscles on both sides and there may have been some nerve root irritation; he has an increased sedimentation rate which indicates some systemic factor--arthritis; if he suffered any sprain he has recovered; he did not believe that the patient is disabled, and he believed that work should be beneficial.

Dr. Blunden, the applicant's physician who is an orthopedic surgeon, made a report on September 14, 1948, which stated as follows: He examined the patient in the first part of April, 1946, and thereafter in that month he treated him four times. He examined him again on July 16, 1948, and thereafter treated him six times. The patient obtained some relief from the treatments, but there remains a very considerable residue of pain, tenderness and disability. He has not been free from symptoms during the 2 1/2 year period. In Dr. Blunden's opinion the difficulty 'is probably related to the trauma which he describes in his original history--that is for a man of Mr. Thomas's weight to hang from one arm for any period of time would impose an extremely severe stress on his shoulder joints and it is entirely within the realm of possibility that a small tear could have resulted.' Arthritic changes in the acromioclavicular joint are the very common cause of constant pain of the type this patient has experienced, and 'Certainly such a condition could be caused by severe stress and strain, which could have been produced by the original injury or there could have been a pre-existing irritation or degeneration of the acromioclavicular joint with superimposed trauma to aggravate and promote the arthritic process which is apparently present.' That the patient's condition is 'due at least, in part, to his original injury as described in his history, if not entirely so.' That '[i]t seems to me that this is either a condition caused by the trauma of being forced to hang on by his arms for a period of minutes or it is the result of the described trauma being superimposed on a pre-existing degenerative changes. In view of Mr. Thomas' age and his general health and vigor, I am inclined toward the former explanation.' (At the time of the accident Mr. Thomas was 42 years of age.)

Dr. Johnson, a physician who examined Mr. Thomas on September 17, 1948, at the request of the attorneys for the employer, stated in his report that it is difficult for him to visualize how the patient could have in any way injured his shoulders; that he has arthritic changes involving both shoulders, and the arthritis antedates the incident; that the increased sedimentation rate, found by physicians who saw the patient shortly after the incident, is in keeping with the arthritic condition and 'thus rules out the possibility of this case being...