Morgan v. Workers' Comp. Appeals Bd.

• Decision Date: 24 October 1978
• Citation: 85 Cal.App.3d 710,149 Cal.Rptr. 736
• Court: California Court of Appeals Court of Appeals
• Parties: John T. MORGAN, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD of the State of California, City of Santa Monica, State Compensation Insurance Fund, Respondents. Civ. 53250.

Page 736

149 Cal.Rptr. 736

85 Cal.App.3d 710

John T. MORGAN, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD of the State of California, City of Santa Monica, State Compensation Insurance Fund, Respondents.

Civ. 53250.

Court of Appeal, Second District, Division 3, California.

Oct. 24, 1978.

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

Vonk, Jakob, Hershenson & Evans and Frank Evans, San Francisco, for respondent State Compensation Ins. Fund.

ALLPORT, Associate Justice.

Petitioner John T. Morgan contends the Board and the permanent disability specialist erred in the manner in which they rated the multiple factors of disability from his industrial injury. We hold that the Board needs to consider the question further. Accordingly, we annul the present award and remand the matter to the Board.

I PROCEEDINGS BEFORE THE APPEALS BOARD

Morgan, while employed from November 1, 1946 through April 30, 1974, as a police sergeant by respondent City of Santa Monica, whose workers' compensation insurance carrier was respondent State Compensation Insurance Fund ("State Fund"), sustained an injury arising out of and occurring in the course of his employment causing hypertension, peptic ulcer, hepatitis, gastrointestinal bleeding and hernia. On May 11, 1976, a Findings and Award issued finding permanent disability in the amount of 74 percent.

On March 29, 1977, Morgan filed a petition to reopen his claim, alleging new and further disability. (See Lab.Code, §§ 5410, 5803, 5804.) On the petition to reopen, the judge found good cause to reopen and directed the following description of the factors of Morgan's permanent disability to the Disability Evaluation Bureau for evaluation: ¹

"Applicant is limited to light work as a result of incisional hernia.

"Hypertension limited applicant to light work with no emotional stress."

The rating specialist computed a 76 percent rating of the disability factors using the following formula:

19. - 50 54H 56 61)

) 76 ²

6.3 - 20 54I 27 31)

Morgan objected to the rating by filing a written "Motion to Strike Recommended Rating." Morgan's basic contention was that the rater erred in assigning a 20 standard rating to the hypertension disability in that such standard failed to encompass all the factors of disability described.

The rater was then cross-examined by the parties. The rater testified: the 50 standard for the hernia was based upon the light work restriction; the 20 standard for the hypertension disability is based on the restriction from emotional stress; the light work restriction for the hypertension (a 50 standard) "overlapped" with the light work restriction for the hernia and hence nothing in the 20 standard for the hypertension reflects the work restriction; the multiple disabilities table does not take into consideration such "overlapping"; and, in her opinion it would be improper to first rate the light work for the hernia at a 50 standard, then rate the hypertension at a 60 standard (50 percent for the light work plus 10 percent for the avoidance of emotional stress) ³ and then combine the two on the multiple disabilities table.

The judge denied Morgan's motion to strike the rating and issued a 76 percent disability award.

Morgan sought reconsideration. The Board, with one commissioner of the three member panel dissenting, granted reconsideration and issued new rating instructions as follows:

"Applicant is limited to light work as a result of incisional hernia. Hypertension limited applicant to light work with no emotional stress. Abdominal discomfort on lifting virtually anything; tight clothing results in increased abdominal discomfort; hernia repair has resulted in 12 surgical scar causing applicant to be guarded in all his movements."

The same rater issued the identical recommended rating of 76 percent on the new instructions. Morgan renewed his objection to the rating by filing a written "Motion to Strike Rating." The Board noting the new rating of 76 percent was the same as the old then affirmed and accepted the 76 percent award. ⁴

II DISCUSSION

Morgan's position is that the rating should be:

19. - 50 54H 56 -61)

) 96

6.3 - 60 54I 69 -74)

This rating utilizes a 60 standard (light work plus no emotional stress) for the hypertension. The 74 rating for the hypertension and the 61 rating for the hernia are then combined on the multiple disabilities table to get the 96 rating.

A. Hutchinson, Mercier, Hegglin and Mihesuah

Understanding the issues involved here requires review of three Supreme Court opinions and one opinion of this court.

In State Compensation Ins. Fund v. Industrial Acc. Com. (Hutchinson) (1963), 59 Cal.2d 45, 27 Cal.Rptr. 702, 377 P.2d 902, the injured employee suffered two successive industrial injuries. The first one was in 1958 to the injured's neck and he received a 26 percent rating based upon the following factors of disability:

"Constant minimal pain in the back of neck extending out over left shoulder, at times extending to the right shoulder, at times extending to the fingertips of both hands; at times pain becomes slight, particularly in performing overhead work, climbing ladders, and scaffolds, becoming moderate on lifting over 35 lbs."

Thereafter, the injured sustained the second injury, a back injury, which had the following factors of disability:

"Minimal low back pain increased to slight on heavy work. He wears a corset-type brace which reasonably controls the low back pain."

Thus, while the first and second disabilities were not identical, they did overlap in that each contained a pain factor. The issue in Hutchinson Was whether under Labor Code section 4750 ⁵ the second injury could be apportioned to the first injury even though the two injuries arguably involved different parts of the body. The court held that there could be apportionment since the issue was not whether different parts of the body were involved but whether the second injury had changed the injured's "capacity or ability to compete" in the open labor market differently from the first:

"(T)he 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 per cent assigned to 'total' disability. (See Smith v. Industrial Acc. Com., supra, 44 Cal.2d 364, 367, 282 P.2d 64.) 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. (See State Comp. Ins. Fund v. Industrial Acc. Com., 56 Cal.2d 681, 686, 16 Cal.Rptr. 359, 365 P.2d 415.)" (Hutchinson, supra, 59 Cal.2d 45, 53, 27 Cal.Rptr. 702, 707, 377 P.2d 902, 907.)

Then came Hegglin v. Workmen's Comp. App. Bd., supra, 4 Cal.3d 162, 93 Cal.Rptr. 15, 480 P.2d 967. Hegglin Involved a single industrial injury which resulted in back and knee disability and also disability from hepatitis. Both the hepatitis and the back independently limited the injured's work capacity. The Board, however, described the factors of disability as follows:

"Constant slight pain in the low back increasing after being on feet for 3 or 4 hours. (Par.) Right knee disability with slight pain after being on feet for 3 or 4 hours or in cold weather which gives way when walking on uneven terrain or in sand. Because of knee disability applicant should not walk on uneven terrain nor should he climb or descend stairs rapidly. (Par.) Slight to moderate fatigue from hepatitis limiting applicant to no heavy work or heavy exertion."

The Board in Hegglin did not include any work restriction for the back even though it alone restricted the injured from heavy work since they were "persuaded that it would be erroneous to describe the disabilities arising from both the back injury and the hepatitis as precluding applicant from heavy work and suggesting that the two be added together." Thus, the Board concluded that the combination of the two conditions resulted in no greater disability and being that the two conditions "overlapped" only one rating could be given to the extent of the overlap.

The Supreme Court in Hegglin noted that the back and the hepatitis were two distinct disabilities:

"Here, it is clear that the injury to the back and the impairment of liver functions (caused by the hepatitis) were separate and individual physical abnormalities resulting from the single industrial accident. The record demonstrates that every witness treated the two factors separately. The injury to the spine and the destruction of liver cells and liver functions obviously involve impairment or abnormalities of separate portions of the anatomy. Furthermore, it is clear that the two factors impose separate limitations on petitioner's capacity to work. The back injury caused a weakness which precluded him from lifting heavy objects at any time; but the impairment of liver functions limited his capacity to work only after several hours of exertion. Because of his back disability he can no longer perform work requiring strenuous use of the back. In addition, due to his hepatitis condition, he can hold only those jobs which do not require sustained physical exertion of any kind and which allow him to take unpredictable absences averaging three weeks per year. In sum, the impaired function of the back and the impaired function of the...