Miller v. Workmen's Compensation Appeals Bd.

• Decision Date: 31 January 1968
• Citation: 258 Cal.App.2d 490,65 Cal.Rptr. 835
• Court: California Court of Appeals Court of Appeals
• Parties: William R. MILLER, Petitioner, v. WORKMEN'S COMPENSATION APPEALS BOARD of the State of California, Day and Night Manufacturing Corporation, a division of Carrier Corporation, Liberty Mutual Insurance Company, a corporation, the Travelers Insurance Company, a corporation, Respondents. Civ. 31869.

Page 835

65 Cal.Rptr. 835

258 Cal.App.2d 490

William R. MILLER, Petitioner, v. WORKMEN'S COMPENSATION APPEALS BOARD of the State of California, Day and Night Manufacturing Corporation, a division of Carrier Corporation, Liberty Mutual Insurance Company, a corporation, the Travelers Insurance Company, a corporation, Respondents.

Civ. 31869.

Court of Appeal, Second District, Division 5, California.

Jan. 31, 1968.

Hearing Denied April 10, 1968.

Weinstein, Shelley & Proctor and Robert R. Shelley, Alhambra, for petitioner.

Everett A. Corten, San Francisco, Edward A. Sarkisian, Los Angeles, and Nathan Mudge, for respondent Workmen's Compensation Appeals Board.

Weingand, Kendig & Stockwell and David B. Allen, Los Angeles, for respondent Liberty Mut. Ins. Co.

No appearance for respondent Travelers Ins. Co.

McCOY, Associate Justice pro tem. ^*

Applicant, a spot welder, born 1908, seeks review and annulment of orders of the Workmen's Compensation Appeals Board on three of four claims which were consolidated for hearing.

On April 27, 1966, the applicant filed a claim alleging industrial injury to his hip and back in December 1956 (No. 5161). On April 27, 1966, the applicant also filed a second claim (No. 5162) alleging industrial injury to his back on September 19, 1957, and that the last date of treatment by the employer was on April 11, 1966. The applicant sought permanent disability and medical-legal costs. On June 16, 1966, applicant filed two additional claims. In one (No. 5628) he alleged cumulative injury from September 24, 1957, through June 10, 1966. The dates were later amended to read 'September 19, 1957 to October 6, 1966.' In the other (No. 5627) he alleged that he sustained injury to his back between May 20 and May 25, 1965.

After hearing the referee found: that the applicant sustained injury in 1956 but the injury caused no temporary disability in excess of seven days and no ratable permanent disability; that the applicant sustained the injury alleged in 1957 which caused intermittent periods of temporary disability through May 10, 1958, for which he had been adequately compensated and 21 1/2 percent permanent disability and the claim was not barred by the statute of limitations; that applicant sustained cumulative injury during the period from September 19, 1957, through October 6, 1966, which caused no temporary disability in excess of seven days and permanent disability of 12 1/4 percent after apportionment; that applicant sustained injury during the period from May 20 through May 25, 1965, which caused no temporary disability in excess of seven days and permanent disability of 6 percent after apportionment. He found that the injury of 1957, the cumulative injury between 1957 and 1966, and the injury of 1965 each might require further medical treatment. Awards issued accordingly. The award for the cumulative injury was against Travelers Insurance Company and Liberty Mutual Insurance Company, jointly and severally, the first being the carrier after December 31, 1962, and the latter being the carrier before that time.

The insurance carriers sought reconsideration of the last three claims. Liberty Mutual contended that there was no competent evidence to sustain a finding of a repetitive trauma and that the furnishing of any medical treatment by the employer without its knowledge after it ceased to be the carrier could not act as a waiver of the statute of limitations as to it. Travelers contended that petitioner's back disability continued without change during the period of its coverage and it was therefore not liable for any of his disability.

After reconsideration on April 28, 1967, the appeals board issued the orders now questioned. It made no finding regarding the injury of 1957 except that it was barred by the statute of limitations. It found that applicant did not sustain the claimed cumulative injury. It found that applicant sustained injury between May 20 and May 25, 1965, which caused no temporary disability in excess of seven days and 6 percent permanent disability after apportionment, and applicant may require further medical treatment to cure or relieve from the effects of this injury. It ordered that applicant take nothing in respect to the claim of injury in 1957 and on the claim of cumulative injury. It issued an award for the injury of 1965.

In a written opinion covering all three cases the appeals board stated in pertinent part: 'It is our opinion that the evidence does not justify a finding that the treatment received by applicant from defendant employer in June of 1966 was provided because of the alleged injury of September 19, 1957. It is noted that applicant had several additional incidents involving his back between the dates of injury and the date of treatment in June of 1966. Even assuming such treatment was in fact furnished by defendant employer, the relationship of insurer/insured had terminated and defendant carrier could not be deprived of its rights to the defense of the statute of limitations by unauthorized conduct of the employer. See Beverly v. IAC, 14 IAC 240. * * * It is our opinion that the medical reports in evidence, including the report of Donald I. Matern, M.D., dated November 8, 1966, indicate that applicant's disability results from specific incidents occurring before 1958 and from the injury of 1965 which is the subject matter of Case No. 66 POM 5627. In his report, Doctor Matern states that he believes that 80 per cent of applicant's difficulties are due to an accident occurring some time in 1958 and that the remaining 20 per cent is attributable to the injury of 1965.'

It is conceded that the applicant was furnished some medical treatment between September 19, 1957, and October 1959 by Liberty Mutual Insurance Company and that through the years, as reflected by the employer's in-plant medical records, he was treated by the plant nurse regularly and frequently for numerous complaints to his back. It appears that on three occasions in 1958, two in 1959, one in 1960, and one in 1961 he reported back pain and received treatment. He complained on March 12, 1963, and continued to report to the nurse for heat treatments at intervals until June 1, 1966. On May 24, 1966, he reported that his old back brace was worn out. In June 1966 he was referred by the plant nurse to Dr. Matern for X-rays and examination. On November 8, 1966, Dr. Matern recommended against back surgery finding that the applicant was getting along fairly well and able to carry out light duties. Dr. Matern further reported 'The very difficult question of apportionment arises in this patient and I certainly cannot do any more than try to give a reasonably certain guess as far as a reasonable medical certainty is concerned. As far as his injury of 1957 is concerned, I suspect this probably recovered sufficiently so that he is having no further difficulties. In 1958 he probably injured his back which started the whole series of subsequent events and probably most of his subsequent troubles should be attributed to the injury of 1958 when he was lifting and rolling the boiler. Then again in the spring of 1965 he was probably doing heavier work than he should have been doing and injured himself once again. I think most of his troubles began in 1958. Probably 80% Of his difficulties are due to that accident with some aggravation in the spring of 1965. I am sure you can get any number of different opinions concerning this apportionment.' ¹

The applicant testified that he had not been free from symptoms since he slipped and fell on a piece of wet steel in September 1956. In September 1957 he injured his back in lifting a 100 gallon tank; his difficulties increased after October 1958 when his job involved handling boilers on an automatic welder; in 1960 he twisted his back when he stepped in a hole; and in May 1965 he handled 50 gallon boilers for several days which caused increased pain and it was never returned to its prior condition. It appeared that one doctor had reported in February 1959 that the applicant had completely recovered from the injury of 1957 by December 18, 1958.

Petitioner contends that, in view of the evidence that he was repeatedly...