Michon v. Workmen's Comp. App. Bd.

• Decision Date: 09 March 1971
• Court: California Court of Appeals Court of Appeals
• Parties: Noreene Sue MICHON, Petitioner, v. WORKMEN'S COMPENSATION APPEALS BOARD of the State of California, State Compensation Insurance Fund and Bank of America, Respondents. Civ. 12650.

Page 476

93 Cal.Rptr. 476

15 Cal.App.3d 917

Noreene Sue MICHON, Petitioner, v. WORKMEN'S COMPENSATION APPEALS BOARD of the State of California, State Compensation Insurance Fund and Bank of America, Respondents.

Civ. 12650.

Court of Appeal, Third District, California.

March 9, 1971.

Hearing Denied May 6, 1971.

Richard J. Asbill, Redding, for petitioner.

Rupert A. Pedrin and Marcel Gunther, San Francisco for Workmen's Compensation Appeals Board.

Phillip M. Miyamoto, San Francisco, for State Compensation Insurance Fund.

PIERCE, Presiding Justice.

Petitioner seeks review of an opinion and decision on reconsideration which reduced a referee's award for permanent disability from 23 1/2 percent (or a total of $4,621.04) to 7 1/4 percent (or a total of $1,425.65). ¹ Reconsideration had been granted upon the petition of Miss Michon's employer, Bank of America, and its compensation carrier.

The question involved is whether the Workmen's Compensation Appeals Board ('board') had power to grant reconsideration and to reduce the award. Under the circumstances to be related, we have concluded that it did not and will annul the board's order.

FACTS

On June 8, 1967, petitioner, a 33-year-old bank teller, was in the bank's vault on a 3-foot step ladder which was faulty and collapsed. She was thrown to the floor 'with the brunt of her fall being taken in her left low back.' The accident was duly reported to her employer, and she was originally treated by a Redding physician, J. C. O'Banion, M.D., who referred her for an orthopedic evaluation to an orthopedic specialist, David W. Hankin, M.D. The latter's four reports were in evidence when the referee's findings, hereinafter to be discussed, were made. The first report, dated October 25, 1967, described Miss Michon's complaints as 'low back pain,' a history which included the description of the accident, Dr. O'Banion's treatments, an expanded account by the patient of 'constant pain at about the L--5 level' and improvement during two separate vacations of one week each in July and October. Applicant has stated she had gone deer hunting, experiencing no pain when 'she packed her gear' up a mountain but this was followed by pain afterwards. Except for petitioner's vacation she had missed no time from work.

At the time of the examination 'her symptom complex * * * (was) somewhat improved,' but she was still suffering pain 'in the left of the midline along the top of the sacroiliac joint in the region of the transverse process of L--5.' The doctor also reported: 'This pain is increased some minor degree on lateral flexion to the right.' X-rays of the lumbar spine were said to show 'an occult spina bifida at the level * * * of the first sacral segment. * * * Spot lateral of the lumbar sacral joint does in fact show some narrowing of the intervertebral disc space at the L5--S1 level.'

Dr. Hankin's report of January 3, 1968, described 'a fairly severe bout of pain lasting approximately three weeks; however, since that time she has been careful in her activities in regards to her bending, lifting, stooping, etc. and has gotten along fairly well.' The doctor, while discharging petitioner 'back to Dr. O'Banion's care,' added, 'I did caution her that in the future she is going to have to be somewhat careful with her back with her bending and stooping and lifting. I also cautioned her that she might have recurrent problems with her low back as a result of this original injury.'

The next report dated October 25, 1968, made pursuant to the request of the compensation carrier, was for the purpose of rating. It reports that petitioner was 'getting along well, and continues to work at her job in the bank. * * * (S)he does have a fairly constant mild ache which she describes is more a nuisance than a real inhibiting factor. It increases if she lifts, and if she does lift anything too heavy, the pain persists for 2--3 days. Evidently, she used to do things like back packing which she is no longer able to do. She has some minor problems with such things as her back exercises and housework. She has tried snow skiing on one occasion, although, she was very careful, and got along well.' Under 'DIAGNOSIS' the report states: 'Status post acute L--5 S--1 disc--recovered. I think this lady is permanent and stationary. I feel that she may have problems, and would suggest that while this is a possibility, it is likely not a probability. No medication or further treatment wee advised today. She will be seen as necessary.'

Intervening that report and the next one from Dr. Hankin, a permanent disability hearing was held before the referee. The reports referred to were put in evidence. Petitioner's testimony regarding her complaints was conservative. Excerpts: 'Well, I am just limited to what I can do.' Asked if she had constant difficulty in the back, she answered, 'Not constant. No. If I do something that I shouldn't do it tells me. * * * (I)f I lift something or * * * vacuum the whole house or anything, if I pick up too much firewood to bring into the fireplace and if I bend down and do too many boxes in the supply room, which I was told not to do--* * * Well, I don't bend down and pick up coin (in bags), if I am working in the vault, because it is too heavy. I have someone else lift it, where I always lifted it before.' She stated that when she did attempt such things she had a dull ache in her back or lower left hip, and she indicated the point of pain. She reported other limitations which are accurately included in the referee's findings.

Because Dr. Hankin was away on a trip, a final report from him was not then available. The hearing was continued. A further hearing was scheduled for June 18, 1969.

Meanwhile on February 27, 1969, Dr. Hankin returned and gave an expanded report, the substantial portion of which states: 'She had in the past strained ^* an acute L--5 S--1 disc herniation. I think, therefore, she should attempt to restrict her activities to prevent a recurrence of same. This would be best performed by avoidance of excessive or repetitive bending, and associated heavy lifting.' (Emphasis ours.)

The referee's summary is a fair restatement of the foregoing evidence and other evidence not necessary to relate here.

On April 17, 1969, a permanent disability rating was requested by the referee. The rating recommended by the rating specialist was 23 1/2 percent.

The hearing held June 18, 1969, was restricted to the testimony of the rating specialist. Also Dr. Hankin's report of February 27, 1969, hereinabove summarized, was admitted into evidence. The rating specialist explained the factors which go into permanent ratings. He stated that his rating had been based solely upon the referee's description which, as we have shown, had been a fair summary of the conclusions of Dr. Hankin's report of February 27.

On October 24, 1969, the referee's findings and award were filed. They included the permanent disability report of 23 1/2 percent.

On November 13, 1969, the employer and its compensation carrier filed their petition for reconsideration. This petition was based upon the grounds that (1) the evidence did not justify the facts found by the referee, and (2) those facts did not support the award made.

On November 20, 1969, petitioner's answer was filed. It denied specifically the allegations of the foregoing petition for reconsideration.

On November 25, 1969, the referee who had made the findings and award recommended denial of the petition for reconsideration.

On December 9, 1969, the petition for reconsideration was granted and an order made for examination and report by the Medical Bureau of the Division of Industrial Accidents. The findings and award were annulled.

The medical examiner to whom petitioner was referred was a Louis S. Campbell, M.D. The examination took place January 6, 1970 (over a year after Dr. Hankin's last examination and almost a year after Miss Michon had testified before the referee).

We have examined the report of Dr. Campbell and have compared it with the evidence before the referee in the original proceedings. Although the new doctor's findings may not be strictly relevant to these proceedings, we relate them in a note in the margin ² principally because we wish to demonstrate that they show no change in the disability of Miss Michon which could be said to justify an exercise of the board's continuing jurisdiction under Labor Code section 5803.

This statement by Dr. Campbell was copied into a report of a deputy commissioner of the board which was referred to the same rating specialist who had made the earlier rating. Based upon the description quoted, that rating specialist on February 27, 1970, reduced the permanent disability rating to 7 1/4 percent as described above.

On April 6, 1970, in an 'Opinion and Decision (after reconsideration)' the board made the order as stated at the outset of this opinion. No discussion or reason for the reduction in rating, other than the rating specialist's statement (which in turn had given no reason for the reduction other than the

doctor's statement), was stated in the opinion. THE CONSTITUTIONAL AND LEGISLATIVE MANDATES RE WORKMEN'S COMPENSATION GENERALLY

Within the mandate of California Constitution article XX, section 21, expressly declaring that the Legislature is vested with 'plenary power * * * to create, and enforce a complete system of workmen's compensation, by appropriate legislation, and in that behalf to create and enforce a liability on the part of any and all persons to compensate any or all of their workmen for injury or disability * * * sustained by the said workmen in the course of their employment,' and its express declaration that this is 'declared to be the social public policy of this State, Binding...