Norton v. Workers' Comp. Appeals Bd.

• Citation: 169 Cal.Rptr. 33,111 Cal.App.3d 618
• Parties: Robert B. NORTON, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD OF the State of California, COUNTY OF SANTA BARBARA, permissibly self-insured, State Compensation Insurance Fund, Respondents. Civ. 59293.
• Decision Date: 31 October 1980
• Court: California Court of Appeals Court of Appeals

Page 33

169 Cal.Rptr. 33

111 Cal.App.3d 618

Robert B. NORTON, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD OF the State of California, COUNTY OF SANTA BARBARA, permissibly self-insured, State Compensation Insurance Fund, Respondents.

Civ. 59293.

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

Oct. 31, 1980.

Henderson, Rogers, Sheffield, Henderson & Rafferty, and Daniel E. Henderson, Jr., Santa Barbara, for petitioner.

Fred P. Lynch, Santa Barbara, for respondent County of Santa Barbara.

Robert A. La Porta, Los Altos, for respondent State Compensation Insurance Fund.

COBEY, Acting Presiding Justice.

Petitioner Robert B. Norton (hereinafter also "applicant") contends that respondent Workers' Compensation Appeals Board (Board) should have issued a combined permanent disability rating for all of his industrial injuries rather than issuing, as the Board did, two separate permanent disability awards. We agree with petitioner. Accordingly, we annul the Board's decision and remand the matter to the Board for further proceedings as directed herein.

PROCEEDINGS BEFORE WCAB

Norton was employed by respondent County of Santa Barbara (County) as a deputy sheriff from July 22, 1968, through November 9, 1977. In the proceedings under review, Norton was found to have sustained five separate industrial injuries while employed by County: a specific back injury ¹ on July 26, 1971; a specific back injury on May 20, 1975; a specific back injury on November 3, 1977; a cumulative back injury (ante, fn. 1) during Norton's entire period of employment for County; and, a cumulative injury to the esophagus and stomach during Norton's employment from 1974 to November 1977. ²

The workers' compensation judge initially issued a single set of permanent disability rating instructions with the following factors of permanent disability:

"(B)ack disability limiting applicant to semisedentary work. Also consider gastro-intestinal disability restricting applicant to no heavy work and necessity to avoid emotionally stressful work."

The disability evaluation specialist recommended a total rating of 821/4 percent permanent disability which is 479.25 weekly payments at $70 per week (equivalent to $33,547.50) and thereafter a life pension of $35.94 per week. This recommendation was based upon (1) a 60 standard rating for the back disability which adjusted for age and occupation to 66 percent, (2) a 40 standard rating for the gastro-intestinal disability which adjusted for age and occupation to 37 percent, and (3) application of the "multiple disabilities table" contained in the Permanent Disability Rating Schedule (Rating Schedule) to the adjusted back and gastro-intestinal disability to achieve the 821/4 percent permanent disability rating. (See Rating Schedule, p. 81; Morgan v. Workers' Comp. Appeals Bd. (1978) 85 Cal.App.3d 710, 149 Cal.Rptr. 736; Mihesuah v. Workers' Comp. Appeals Bd. (1976) 55 Cal.App.3d 720, 127 Cal.Rptr. 688; Welch, Fundamentals for Applying Cal. Schedule for Rating Permanent Disabilities (1975); 1 Hanna, Cal. Law of Employee Injuries and Workmen's Compensation (2d rev. ed. 1980) § 11.03; 1 Herlick, Cal. Workers' Compensation Law Handbook (2d ed. 1978) §§ 7.34- 7.37; Cal. Workmen's Compensation Practice (Cont.Ed. Bar 1973) §§ 15.18-15.25.)

The Board granted County's petition for reconsideration and issued two separate rating instructions; one for the back disability and one for the gastro-intestinal disability. The Board also found that the back disability should be reduced by the level of the gastro-intestinal disability pursuant to the principle of "overlapping disabilities."

The Board's rating instructions for the gastro-intestinal disability were as follows:

"(D)isability to esophagus and stomach precluding applicant from heavy work and necessity to avoid stressful work."

This was a 40 standard rating which adjusted to 37 percent permanent disability (162.75 weeks of payments at $70 per week, for a total of $11,392.50, and no life pension).

The Board's rating instructions for the back disability were as follows:

"(B)ack disability limiting applicant to semisedentary work. (P) Please consider, applicant has a disability to esophagus and stomach which precluded applicant from heavy work and necessity to avoid emotional stress."

The back disability was a 60 standard rating which adjusted to 66 percent. The Board subtracted the "overlapping" part of the stomach disability (271/2 percent) for a net back disability rating of 381/2 percent (171.25 weeks of payments of $70 per week, for a total of $12,025.50, and no life pension).

Thus, the judge's rating instructions would result in Norton's receiving weekly payments of $70 per week totaling $33,547.50 and thereafter a life pension of $35.94 per week. In contrast, the Board's method has resulted in a total of only $23,418 and no life pension.

DISCUSSION

At the outset we observe that no party denies that all four of Norton's back injuries (the three specific back injuries and the cumulative back injury) should be rated together. Where, as here, successive injuries to the same part of the body become permanent and stationary ³ at the same time, the worker is entitled to a permanent disability award based upon his combined disability at the permanent disability rates applicable at the time the last injury of the successive injuries giving rise to such benefits occurred. (Wilkinson v. Workers' Comp. Appeals Bd. (1977) 19 Cal.3d 491, 138 Cal.Rptr. 696, 564 P.2d 848; Harold v. Workers' Comp. Appeals Bd. (1980) 100 Cal.App.3d 772, 161 Cal.Rptr. 508; Fullmer v. Workers' Comp. Appeals Bd. (1979) 96 Cal.App.3d 164, 157 Cal.Rptr. 735; Taylor v. Workers' Comp. Appeals Bd. (1979) 95 Cal.App.3d 139, 156 Cal.Rptr. 906; Nuelle v. Workers' Comp. Appeals Bd. (1979) 92 Cal.App.3d 239, 154 Cal.Rptr. 707; Rumbaugh v. Workers' Comp. Appeals Bd. (1978) 87 Cal.App.3d 907, 151 Cal.Rptr. 563; Aten v. Workers' Comp. Appeals Bd. (1977) 75 Cal.App.3d 113, 142 Cal.Rptr. 42; Bauer v. County of Los Angeles (WCAB en banc opinion, 1969) 34 Cal.Comp. Cases 594.) This principle is often called the "Wilkinson rule" after the Supreme Court opinion. ⁴

The dispute herein is whether the combined back injuries and the cumulative esophagus and stomach injury should be rated together, as done by the judge, or separately with application of the principle of "overlapping disabilities," as done by the Board.

The judge's method is an application of the Supreme Court decision in Hegglin v. Workers' Comp. Appeals Bd. (1971) 4 Cal.3d 162, 93 Cal.Rptr. 15, 480 P.2d 967. In Hegglin the court held that where multiple independent factors of disability to different parts of the body result from a single industrial injury, the proper method of rating is to include all factors of disability in the rating instructions and then achieve an overall rating by use of the multiple disabilities table. (Id. at p. 174, 93 Cal.Rptr. 15, 480 P.2d 967; see also, Morgan v. Workers' Comp. Appeals Bd., supra, 85 Cal.App.3d 710, 149 Cal.Rptr. 736; Mihesuah v. Workers' Comp. Appeals Bd., supra, 55 Cal.App.3d 720, 127 Cal.Rptr. 688.)

In contrast the Board's rating is an application of the Supreme Court decisions in State Compensation Ins. Fund v. Industrial Acc. Com. (Hutchinson) (1963) 59 Cal.2d 45, 27 Cal.Rptr. 702, 377 P.2d 902 and Mercier v. Workers' Comp. Appeals Bd. (1976) 16 Cal.3d 711, 129 Cal.Rptr. 161, 548 P.2d 361. Hutchinson and Mercier established the principle of apportionment of successive "overlapping disabilities." Under this principle where an injured worker sustains successive injuries (i. e., a pre-existing disability followed by an industrial injury) the permanent disability from the subsequent industrial injury is only compensated to the extent the injured worker's ability to compete in the open labor market is decreased beyond that due to the pre-existing disability. Mercier, supra, 16 Cal.3d at pp. 714-716, 129 Cal.Rptr. 161, 548 P.2d 361; Hutchinson, supra, 59 Cal.2d at pp. 52-56, 27 Cal.Rptr. 702, 377 P.2d 902; see also Aliano v. Workers' Comp. Appeals Bd. (1979) 100 Cal.App.3d 341, 374, 161 Cal.Rptr. 190; Johns-Manville Products Corp. v. Workers' Comp. Appeals Bd. (Carey) (1978) 87 Cal.App.3d 740, 151 Cal.Rptr. 215; State Comp. Ins. Fund v. Workers Comp. Appeals Bd. (Gaba) (1977) 72 Cal.App.3d 13, 15-17, 139 Cal.Rptr. 802.) "Thus, if prior to the industrial injury the injured has a permanent disability there is apportionment to the extent the industrial injury does not decrease his earning capacity or ability to compete. This rule of apportionment of 'overlapping disabilities' applies even if the industrial injury involves a different part of the body than the preexisting disability." (Aliano, supra, 100 Cal.App.3d at p. 374, 161 Cal.Rptr. 190.)

Here, the difficulty is that we do not deal with only successive injuries but contemporaneous injuries as well. Had Norton suffered cumulative injury to his back and to his esophagus and stomach during his entire period of employment, or during exactly the same period of employment, it would be clear that there were not two injuries but a single cumulative injury for the purpose of rating the permanent disability in accordance with the Supreme Court decision in Hegglin, supra, 4 Cal.3d 162, 93 Cal.Rptr. 15, 480 P.2d 967 and the Court of Appeal decision in State Compensation Ins. Fund v. Workers' Comp. Appeals Bd. (Hurley) (1977) 70 Cal.App.3d 599, 139 Cal.Rptr. 41. The fact that the liability period pursuant to Labor Code § 5500.5 may be different for the back claim and for the esophagus and stomach claim would not alter this fact. The period of injurious employment, not the liability period under Labor Code § 5500.5, would make the injuries concurrent. (Ante, fn.2.) ⁵

Here, however, the injurious employment for the back was from July 22, 1968 through November 9, 1977, while the injurious employment for the esophagus and stomach was only ...