Insurance Co. of North America v. Workers' Comp. Appeals Bd.

• Decision Date: 24 August 1981
• Citation: 122 Cal.App.3d 905,176 Cal.Rptr. 365
• Court: California Court of Appeals Court of Appeals
• Parties: INSURANCE COMPANY OF NORTH AMERICA, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD OF the STATE OF CALIFORNIA; Myrna R. Kemp, Respondents. Civ. 60977.

Page 365

176 Cal.Rptr. 365

122 Cal.App.3d 905

INSURANCE COMPANY OF NORTH AMERICA, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD OF the STATE OF CALIFORNIA; Myrna R. Kemp, Respondents.

Civ. 60977.

Court of Appeal, Second District, Division 2, California.

Aug. 24, 1981.

Booth, Mitchell, Strange & Smith, and James Ruiz, Los Angeles, for petitioner.

Schermer & Rand, Inc., Jack Goodchild, and Jeffrey Anson, Sherman Oaks, for respondent Myrna R. Kemp.

ROTH, Presiding Justice.

Petitioner Insurance Company of North America (hereinafter "INA") contends that respondent Workers' Compensation Appeals Board (WCAB) erred in denying INA's petition for reconsideration of the decision of the workers' compensation judge finding that (1) respondent Myrna R. Kemp (applicant) sustained injury to her psyche arising out of and occurring in the course of employment for Volt Technical Corporation (Volt), and (2) INA, the workers' compensation insurance carrier for Volt, unreasonably refused to provide workers' compensation benefits to applicant and therefore is liable for a 10 percent penalty pursuant to Labor Code section 5814. We agree with INA's contention and accordingly we cannot accept the decision of the WCAB.

As stated in her original application for adjudication filed with the WCAB, the gravamen of applicant's claim to industrial psychiatric injury is that she sustained emotional trauma as the result of employment "harassment, pressures and tensions from November 28, 1978 to present and continuing * * *."

The application which initiates this proceeding is based upon a false representation. Paragraph 9 thereof reads: "This application is filed because of a disagreement regarding liability for (the psychic injury): * * *." This is a false statement. Volt did not know applicant had suffered an injury. There had been no discussion between applicant and Volt with respect to an injury or to her claim. Volt did not know applicant was making a claim until the application as it shows on its face was served on Volt on or about December 22, 1978. Some weeks after that date, abortive efforts were made by applicant's counsel to reach some agreement for payments on account of applicant's claim. There is nothing in the record to show that Volt had any information with respect to said claim at the time of the aborted discussions except such as is contained in the served application. On August 1, 1979, Volt filed an answer denying it.

The application dated November 30, 1978 was prepared and typed in all respects except for applicant's signature by attorneys for applicant and executed at Sherman Oaks. It bears the stamped seal of Schermer & Rand, Inc. The application does not describe applicant's injury. After the printed words, "The injury occurred as follows:" are the words, "harassment, pressures and tensions." Both documents were filed by Schermer & Rand, Inc. at WCAB offices in Panorama City on December 1, 1978. Concurrently, counsel prepared a Declaration of Readiness to Proceed.

On November 29, 1978, applicant was tested and interviewed by Dr. Albert J. Rosenstein, a psychologist who maintains an office in Encino, California. We assume Schermer & Rand had a report from Dr. Rosenstein before they prepared and completed the application. If such report was in writing before the application was filed or since, it was not filed or made a part of the record at any time.

In a "Claim Statement of Employee" signed and filed by applicant on or about December 15, 1978, with the Employment Development Department she fixed the commencement of her right to a claim as November 28, 1978, the date of her termination but stated the last day she worked before disability as November 24, 1978. In answer to the question in the Claim Statement of December 15, "Did you stop work because of sickness or injury? If 'No,' please give reason," applicant answered "No" and wrote as her reasons "TERMINATED." And in answer to question 2, "What was the first full day you were too sick to work * *?", she replied, November 28, 1978. November 28, 1978 as the date of commencement of disability is again confirmed by a Doctor's Certificate signed and filed on December 7, 1978 (discussed infra ).

"(J)udicial review of decisions of the WCAB on factual matters is limited to determining whether the decision, based on the entire record, is supported by substantial evidence ((Lab.Code) § 5952, subd. (d); LeVesque v. Workmen's Comp. App. Bd. (1970) 1 Cal.3d 627 (83 Cal.Rptr. 208, 463 P.2d 432))." (Southern California Rapid Transit Dist., Inc. v. Workers' Comp. Appeals Bd. (1979) 23 Cal.3d 158, 162, 151 Cal.Rptr. 666, 588 P.2d 806.) " ' "The foregoing standard is not met "by simply isolating evidence which supports the board and ignoring other relevant facts of record which rebut or explain that evidence." ' (Lamb v. Workmen's Comp. App. Bd. ((1974) 11 Cal.3d 274,) at p. 281 (113 Cal.Rptr. 162, 520 P.2d 978); Garza v. Workmen's Comp. App. Bd., 3 Cal.3d 312, 317 (90 Cal.Rptr. 355, 475 P.2d 451); Greenberg v. Workmen's Comp. Appeals Bd., 37 Cal.App.3d 792 (112 Cal.Rptr. 626).) " (Universal City Studios, Inc. v. Workers' Comp. Appeals Bd. (1979) 99 Cal.App.3d 647, 656, 160 Cal.Rptr. 597.)

In LeVesque v. Workmen's Comp. App. Bd. (1970) 1 Cal.3d 627, 83 Cal.Rptr. 208, 463 P.2d 432, our Supreme Court 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." (Id., at p. 637, 83 Cal.Rptr. 208, 463 P.2d 432.)

"LeVesque (1 Cal.3d, pp. 635-637 (83 Cal.Rptr. 208, 463 P.2d 432)) specifically rejected earlier judicial declarations that an award of the board must be sustained, if supported by 'any evidence ' (citations), or 'any substantial evidence ' (citations). Although such a rule may continue in other fields of 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 is found, 'no matter how slight it may appear in comparison with the contradictory evidence,' be bound to affirm the decision under review. (Citations.)" (Hulbert v. Workmen's Comp. Appeals Bd. (1975) 47 Cal.App.3d 634, 638, 121 Cal.Rptr. 239.)

"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....' (Italics 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 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.' " (Hulbert v. Workmen's Comp. Appeals Bd., supra, 47 Cal.App.3d at pp. 638, 639, 121 Cal.Rptr. 239.)

"... The meaning of the term 'substantial' has not been specifically defined in a workers' compensation case, but the term, as used in the substantial evidence rule applied on appellate review generally, has been defined as follows: ' "Substantial evidence" is evidence which, if true, has probative force on the issues. It is more than a mere scintilla, and means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.... If the word "substantial" means anything at all, it clearly implies that such evidence must be of ponderable legal significance. Obviously the word cannot be deemed synonymous with "any" evidence. It must be reasonable in nature, credible, and of solid value ; it must actually be " substantial" proof of the essentials which the law requires in a particular case.' Teed Estate, 112 Cal.App.2d 638, 247 P.2d 54 (1952); see also Dyer v. Knue, 186 Cal.App.2d 348, 8 Cal.Rptr. 753 (1960); Hulbert v. W. C. A. B. (47 Cal.App.3d 634, 121 Cal.Rptr. 239) ...." (Emphasis added.) (1 Hanna Calif.Law of Employee Injuries and Workmen's Compensation (2d rev. ed. 1981) § 10.08(2) (a), p. 10-26, fn. 21.)

Factual findings of the WCAB are thus not supported by substantial evidence in light of the entire record where such findings are in conflict with all of the evidence (Lamb v. Workmen's Comp. Appeals Bd. (1974) 11 Cal.3d 274, 281, 113 Cal.Rptr. 162, 520 P.2d 978; Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312, 317-318, 90 Cal.Rptr. 355, 475 P.2d 451; Sully-Miller Contracting v. Workers' Comp. Appeals Bd. (1980) 107 Cal.App.3d 916, 925-926, 166 Cal.Rptr. 111), based upon inferences which cannot be fairly drawn from the evidence (see Judson Steel Corp. v. Workers' Comp. Appeals Bd. (1978) 22 Cal.3d 658, 664, 150 Cal.Rptr. 250, 586 P.2d 564), based upon evidence which lacks probative force (Simmons Co. v. Ind. Acc. Com. (1945) 70 Cal.App.2d 664, 670, 161 P.2d 702), based upon a purely "fanciful conclusion" (ibid.), or based upon "the creation of nonexistent evidence (or) the creation of a conflict in the evidence which does not otherwise exist" (Sully-Miller Contracting v. Workers' Comp. Appeals Bd., supra, 107 Cal.App.3d 916, 926, 166 Cal.Rptr. 111).

Thus, the "substantial evidence in light of the entire record" standard of judicial review is not some metaphysical concept. We are not bound to accept the factual findings of the WCAB where they are illogical, unreasonable and improbable. In other words, where the WCAB's decision is not within the realm of what a reasonable trier of fact could...