Lundberg v. Workmen's Compensation Appeals Bd.

• Decision Date: 04 October 1968
• Docket Number: S.F. 22612
• Citation: 71 Cal.Rptr. 684,445 P.2d 300,69 Cal.2d 436
• Court: California Supreme Court
• Parties: , 445 P.2d 300 Erik H. LUNDBERG, Petitioner, v. WORKMEN'S COMPENSATION APPEALS BOARD, F. S. Huyck Construction Co., et al., Respondents.

Page 684

71 Cal.Rptr. 684

69 Cal.2d 436, 445 P.2d 300

Erik H. LUNDBERG, Petitioner, v. WORKMEN'S COMPENSATION APPEALS BOARD, F. S. Huyck Construction Co., et al., Respondents.

S.F. 22612.

Supreme Court of California,

In Bank.

Oct. 4, 1968.

Rehearing Denied Oct. 30, 1968.

Levy, DeRoy, Geffner & Van Bourg and Gerald J. Tiernan, Long Beach, for petitioner.

Everett A. Corten, Richard Swanson, T. Groezinger, Loton Wells, G. K. Bogue and Arthur C. Jones, Jr., San Francisco, for respondents.

PETERS, Justice.

Petitioner seeks annulment of an order of the Workmen's Compensation Appeals Board upon reconsideration that he did not suffer his back injury in the course of his employment.

On June 27, 1967, petitioner, while working as a carpenter, developed back pain. He did not recall any specific accident or other incident causing the injury. He was lifting 2 10 inch studs which were 20 to 22 feet long, and the work was heavier than usual. The pain continued in his back and leg, and on July 5, he left work and consulted Dr. Portello. He told the doctor that his back and leg condition developed as a result of his work but did not describe any particular incident. Dr. Portello placed him in the hospital, and a myelogram was performed which indicated a herniated intervertebral disc at the L4--5 interspace. On July 21, 1967, Dr. Portello removed the ruptured disc. He filed an industrial report of injury. (See Lab.Code, § 6407.)

Petitioner had commenced work for F. S. Huyck Construction Company on May 8, 1967. Previously, he was self-employed for a year and a half, handling bar supplies which was light work. Prior to that time and since 1942 he had been employed as a carpenter. He had strained his back in 1949, but he had recovered fully and had no further symptoms in his back until June 1967. At the time of injury he was 58 years old.

Neither of the two doctors who furnished reports gave an unequivocal opinion as to the cause of the ruptured disc. Dr. Portello merely repeated in his report the statements made by petitioner to him as to industrial causation. He did not say anything as to the cause of the ruptured disc.

Dr. Haldeman in his report stated that on the basis of 1952 medical reports it was clear that the ruptured disc could not be charged in any way to the 1949 injury. He further stated: 'I do not know what caused the 4th lumbar intervertebral disc to rupture. It is possible that his work activity between 5--8--67 and the onset of symptoms on 6--27--67 was responsible for this rupture but it is equally possible that the rupture would have occurred had he not been working at all.'

The referee found that petitioner suffered an injury to his low back arising out of and in the course of his employment, that the injury resulted in total temporary disability, and that he was entitled to reimbursement for medical treatment less a lien to a hospital.

Upon reconsideration the board stated that Dr. Portello expresses no opinion as to the cause of injury and that Dr. Haldeman states that it is possible that applicant's work activity caused the injury but equally possible that this would have occurred had he not been working at all. The board concluded: 'We are of the opinion that the applicant has not met his burden of proof to establish that his injury was industrially caused.' The board denied reimbursement for the medical treatement and temporary disability benefits.

The employee bears the burden of proving that his injury was sustained in the course of employment. (Pac. Emp. Ins. Co. v. Ind. Acc. Comm., 19 Cal.2d 622, 628, 122 P.2d 570, 141 A.L.R. 798; Peter Kiewit Sons v. Industrial Acc. Comm., 234 Cal.App.2d 831, 838, 44 Cal.Rptr. 813; Associated Indem. Corp. v. Ind. Acc. Comm., 120 Cal.App.2d 423, 426, 261 P.2d 25; Liberty Mut. Ins. Co. v. Ind. Acc. Comm., 73 Cal.App.2d 555, 559, 166 P.2d 908; Rich v. Industrial Accident Comm., 36 Cal.App.2d 628, 630, 98 P.2d 249; Singlaub v. Industrial Acc. Comm., 87 Cal.App. 324, 331, 262 P. 411.)

The established legislative policy is that the Workmen's Compensation Act must be liberally construed in the employee's favor (Lab.Code, § 3202), and all reasonable doubts as to whether an injury arose out of employment are to be resolved in favor of the employee. (Lumbermen's Mut. Cas. Co. v. Ind. Acc. Comm., 29 Cal.2d 492, 496, 175 P.2d 823; Truck Ins. Exchange v. Ind. Acc. Comm., 27 Cal.2d 813, 816, 167 P.2d 705; Pacific Emp. Ins. Co. v. Ind. Acc. Comm., 26 Cal.2d 286, 289, 158 P.2d 9, 159 A.L.R. 313.) This rule is binding on the board and on this court.

Where the evidence shows that over a period of time an employee engaged in substantial lifting work, that while engaged in such work he developed back pain symptomatic of a ruptured disc, and that such work could cause a ruptured disc, and where there is no evidence of other injury or that there was a preexisting back injury, the plain inference is that the lifting in the course of employment resulted in a continuous cumulative traumatic injury and that the employment was, at least, a contributing factor in the injury. (Cf. Fruehauf Corp. v. Workmen's Comp. App. Bd., 68 A.C. 591, 596, 68 Cal.Rptr. 164, 440 P.2d 236.) When there is no conflicting evidence and the inference is undisputed, the board in furtherance of the legislative command of liberal construction in favor of the workingman must find industrial causation.

The evidence is undisputed that the symptoms arose while the employee was engaged in work involving lifting of materials which were unusually heavy, and that,...