Montyk v. Workmen's Compensation Appeals Bd.

• Decision Date: 30 September 1966
• Citation: 53 Cal.Rptr. 848,245 Cal.App.2d 334
• Court: California Court of Appeals Court of Appeals
• Parties: Michael MONTYK, Petitioner, v. WORKMEN'S COMPENSATION APPEALS BOARD, Respondent. Civ. 11392.

Page 848

53 Cal.Rptr. 848

245 Cal.App.2d 334

Michael MONTYK, Petitioner, v. WORKMEN'S COMPENSATION APPEALS BOARD, Respondent.

Civ. 11392.

District Court of Appeal, Third District,

California.

Sept. 30, 1966.

Simeon S. Reibin, Sacramento, for petitioner.

Everett A. Corten and Rupert A. Pedrin, Industrial Accident Commission, Sedgwick, Detert, Moran & Arnold, San Francisco, for respondent.

FRIEDMAN, Justice.

Petitioner Montyk was employed by American Building Maintenance Company as a janitor. Upon his application for workmen's compensation benefits, the referee found that petitioner had sustained a hernia as the result of repeated work strains up to April 2, 1965, which is the last day petitioner worked prior to undergoing surgery. On April 5, 1965, petitioner underwent surgery by his own doctor. The referee awarded him temporary disability and the expense of self-procured medical care incurred after April 2, including the cost of the surgery. The award of medical expense was premised on the referee's conclusion that on April 2 petitioner had told his supervisors of the coming surgery and they had not instructed him not to go to his own doctor.

The Workmen's Compensation Appeals Board granted reconsideration and made the following finding: 'Applicant is not entitled to reimbursement for his self-procured medical expenses inasmuch as applicant arbitarily refused proferred medical treatment by defendant.' Accordingly, the appeals board eliminated the award for self-procured care but sustained the temporary disability award. Petitioner was issued a writ for the purpose of reviewing the appeals board's denial of the cost of self-procured medical care.

The only question before us is whether the appeals board finding is surported by substantial evidence. Petitioner urges an additional issue--existence of substantial evidence to support the referee's finding. The latter is no longer at issue. The appeals board may make a factual determination contrary to that of the referee although the testimony is conflicting. (National Auto & Cas. Ins. Co. v. Industrial Acc. Com., 34 Cal.2d 20, 28--29, 206 P.2d 841; see also Allied Comp. Ins. Co. v. Industrial Acc. Com., 57 Cal.2d 115, 119, 17 Cal.Rptr. 817, 367 P.2d 409.) Where, as permitted by Labor Code section 5315, the appeals board has set aside the referee's decision and made its own finding based upon independent examination of the record, the decision presented for judicial review is not that of the referee, but that of the appeals board. This court's reviewing authority now extends to the latter order only. (See Labor Code, § 5952.)

Petitioner's ability to speak English is limited, and he testified through an interpreter. According to his own testimony, he first visited doctors of his own choosing on March 22, 1965, then told his foreman about the pain. The foreman told him to see Dr. Ankele, the company's doctor. He did not go to this doctor because he thought he might lose his job. On April 2 he told the foreman he was going into surgery on April 5. The foreman was 'very unhappy' because petitioner was going to his own doctor. According to petitioner the foreman said: 'If you cannot work, then go and have surgery.' Asked why he did not go to the company doctor, petitioner replied through the interpreter: 'Because our family doctor directed me to this doctor, and respecting the family doctor, I could not change.'

Mr. Sanders, the foreman, testified that when petitioner first complained of pain, he told him to see Dr. Ankele and gave him the doctor's name and address. When petitioner returned to work the next working day, Sanders asked him if he had been to the doctor and petitioner responded in the...