Mercier v. Workers' Comp. Appeals Bd.

• Decision Date: 20 April 1976
• Citation: 16 Cal.3d 711,129 Cal.Rptr. 161,548 P.2d 361
• Court: California Supreme Court
• Parties: , 548 P.2d 361 Patrick F. MERCIER, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD and City of Los Angeles, Respondents. L.A. 30332.

Page 161

129 Cal.Rptr. 161

16 Cal.3d 711, 548 P.2d 361

Patrick F. MERCIER, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD and City of Los Angeles, Respondents.

L.A. 30332.

Supreme Court of California In Bank.

April 20, 1976.

Rehearing Denied June 2, 1976.

Lewis & Marenstein, Alan B. Marenstein, Los Angeles, and Harry B. Green, Northridge, for petitioner.

Charles P. Scully and Kathryn E. Ringgold, San Francisco, as amici curiae on behalf of petitioner.

Frank H. Batlin, Philip M. Miyamoto, Thomas J. McBirnie, San Francisco, Burt Pines, City Atty., John T. Neville, Asst. City Atty., and William G. Lorenzetti, Deputy City Atty., for respondents.

CLARK, Justice.

Petitioner seeks annulment of a workers' compensation award apportioning part of his permanent disability to a prior industrial injury.

In 1970 petitioner, a Los Angeles police officer, suffered an industrial injury to his back. The Workers' Compensation Appeals Board determined that the back disability precluded petitioner from doing 'heavy lifting and repetitive bending' and awarded a 34 1/2 percent permanent disability rating.

In 1971 petitioner was found to have suffered an industrially related heart disability occurring over the entire period of employment with the city, 1949 to 1971.

The referee requested the rating specialist to submit a permanent disability rating based on the following: '1. Heart disability and arteriosclerosis, more than slight and less than moderate. Applicant should avoid severe emotional stress. 2. Applicant should be limited to work between light and semi-sedentary. 3. Applicant is precluded from strenuous activities. Apportion out 34 1/2%.'

The referee adopted the rating specialist's recommendation, after apportionment, of 40.5 percent disability. Upon petition for reconsideration, the Workers' Compensation Appeals Board affirmed the referee, deciding that the back and heart injuries both prevented petitioner from performing the same type of work. Because they overlapped apportionment was upheld. ¹ Petitioner first contends that the two injuries are separate and distinct and are therefore nonapportionable.

Prior to this court's decision in State Compensation Ins. Fund v. Industrial Acc. Com. (Hutchinson) (1963) 59 Cal.2d 45, 27 Cal.Rptr. 702, 377 P.2d 902, successive industrial injuries were apportioned only if they were injuries to the same part of the body. (Pacific Gas & Elec. Co. v. Ind. Acc. Com. (Burton) 126 Cal.App.2d 554, 272 P.2d 818.) We replaced this rigid and mechanistic formula, holding in Hutchinson that 'the disability resulting from a subsequent injury should be compensable only to the extent that it can be said that the employee's earning capacity or ability to compete has been decreased from what it was immediately prior to the second injury. The computation of this figure cannot be determined by a mechanical application of a method of apportionment based upon whether the injury occurs to the same anatomical part of the body. It must come from a consideration of the nature of the disability caused by the injury. If successive injuries produce separate and independent disabilities then each is properly rated separately without concern for the theoretical 100 percent assigned to 'total' disability. But if the subsequent injury, Even if to a different part of the body, does not alter the earning capacity or ability to compete in the labor market it is not compensable. And if it does alter these factors, it should be compensable only to the extent of the alteration.' (59 Cal.2d 45, 53, 27 Cal.Rptr. 702, 707, 377 P.2d 902, 907; italics added.) The policy behind this rule is to encourage the employment of disabled persons by imposing liability on an employer only for that portion of the disability attributable to the subsequent industrial injury. (Id. at p. 49, 27 Cal.Rptr. 702, 377 P.2d 902.)

Hutchinson thus rejected the inflexible rule of Burton substituting one that apportionment is proper when the actual decrease in the employee's ability to compete and earn is less than the sum of the disability ratings for the two injuries added together. The result is that the employee will be awarded that percentage of disability commensurate with his decreased ability to compete and earn. Obviously, the mere occurrence of a second injury does not require apportionment. In each case it must be determined if the second injury impairs the employee's ability to perform work in the same manner as the first injury. If so, apportionment is proper--but only to the extent the two injuries overlap.

Truck Ins. Exch. v. Industrial Acc. Com. (Tarantino) (1965) 235 Cal.App.2d 207, 45 Cal.Rptr. 178, presented facts almost identical to the present case. The employee suffered injury to his neck, low back and right hand resulting in a permanent disability rating of 31 1/2 percent. Subsequently, the employee suffered a heart attack and was awarded a permanent disability rating of 49 percent. The Court of Appeal reversed an Industrial Accident Commission decision which held the two injuries should not be apportioned solely because they occurred to separate parts of the body. Pointing out there was an overlap in the disabilities, the Court of Appeal held that Hutchinson required apportionment.

Hegglin v. Workmen's Comp. App. Bd. (1971) 4 Cal.3d 162, 93 Cal.Rptr. 15, 480 P.2d 967, does not lead to a contrary result. In the course of receiving medical treatment for industrial injuries the employee became infected by serum hepatitis. This court held that when the injuries arise out of the same accident section 4750 is inapplicable and apportionment is therefore not required. The court distinguished Hutchinson noting that its rule applies to an entirely different situation. 'We find nothing in Hutchinson which states or intimates that the rule prescribed by section 4750 for Successive injuries or the procedures approved in Hutchinson for rating such injuries, are applicable in the rating of disabilities for a Single industrial injury.' (Orig. italics; Subsequent Injuries Fund v. Industrial Acc. Com. (Rogers), supra, 226 Cal.App.2d 136, 154, 37 Cal.Rptr. 844, 855.) 'Section 4750 was enacted to promote the employment of workmen partially disabled by a prior industrial accident (citation); that policy is inapplicable to cases involving a single industrial accident. Therefore, the special rating procedures found in Hutchinson to be appropriate for multiple accident cases are not applicable here.' (Hegglin v. Workmen's Comp. App. Bd., supra, 4 Cal.3d 162, 173, 93 Cal.Rptr. 15, 22, 480 P.2d 967, 974.)

As Hegglin pointed out, the distinction drawn between single and multiple accident cases is well-founded. When the two injuries arise out of the same industrial accident the policy underlying Hutchinson of not discouraging employers from hiring disabled persons is inapplicable. In such situation, the employer properly is made to bear responsibility for all injuries caused by one accident. When there have been two or more accidents, the policy of encouraging the hiring and retaining of disabled persons is best effected by application of the rule of apportionment enunciated in Hutchinson.

Here, the injuries arose out of separate industrial events. In such case, apportionment turns on whether the second injury decreases the employee's earning capacity or his ability to compete in the open labor market in the same manner as the first. The fact that the injuries occur to two different anatomical parts of the body while relevant, does not in itself preclude apportionment.

Petitioner next argues no logical basis exists for concluding that an employee suffering back and heart disabilities is no more disabled than if he had suffered only the heart disability. Petitioner further asserts apportionment denies him a life pension from the city he would have been entitled to had he not suffered the previous disability.

The question of overlapping disabilities is one of fact--not of logic. The basic purpose of workers' compensation is to compensate diminished ability to compete in the labor market (Lab.Code, § 4660, subd. (a)) rather than to compensate every injury. Proper computation of overlapping disabilities--either partial or total--calls for determining the percentage of combined disability and then subtracting the percentage of disability due to the prior injury. ² (Dow Chemical Co. v. Workmen's Comp. App. Bd. (1967) 67 Cal.2d 483, 492, 62 Cal.Rptr. 757, 432 P.2d 365; State Compensation Fund v. Industrial Acc. Com. (Hutchinson), supra, 59 Cal.2d 45, 53, 27 Cal.Rptr. 702, 377 P.2d 902; Subsequent Injuries Fund v. Workmen's Comp. App. Bd. (Royster) (1974) 40...