Pacific Emp. Ins. Co. v. Industrial Acc. Commission

• Decision Date: 24 June 1960
• Court: California Court of Appeals Court of Appeals
• Parties: PACIFIC EMPLOYERS INSURANCE COMPANY, a corporation, Petitioner, v. INDUSTRIAL ACCIDENT COMMISSION of the State of California and Charles W. Casey, Respondents. Civ. 24534.

Page 738

5 Cal.Rptr. 738

182 Cal.App.2d 162

PACIFIC EMPLOYERS INSURANCE COMPANY, a corporation, Petitioner, v. INDUSTRIAL ACCIDENT COMMISSION of the State of California and Charles W. Casey, Respondents.

Civ. 24534.

District Court of Appeal, Second District, Division 2, California.

June 24, 1960.

Clopton & Penny, and Robert C. Wreisner, Los Angeles, for petitioner.

Everett A. Corten, San Francisco, and Edward A. Sarkisian, for respondent.

KINCAID, Justice pro tem.

Respondent commission granted reconsideration of a referee's award of compensation to respondent Casey, hereinafter referred to as the 'employee' or 'applicant.' The award imposed upon petitioner the obligation, 'to treat a nonindustrial condition; to wit, malignancy of the prostate and metastasis thereof to the spine.' Upon reconsideration, the award was affirmed.

Petitioner seeks review and annulment, challenging only the imposition upon it of said obligation. The facts are not disputed.

The Question Presented

Does the evidence herein support the commission's finding imposing obligation upon petitioner to treat the cancer? Concededly if the finding imposing an obligation upon petitioner to treat the cancer is erroneous, then the finding that the injury caused temporary disability is also erroneous.

It also seems conceded that the type of injury here claimed is one which by its very nature must be proved solely by expert medical evidence.

Statement of the Facts

On August 11, 1957, the employee, while working as a hotel manager, was called upon to assist a guest of the hotel who had fallen down. The guest was put upon a chaise lounge, to be moved, and the employee lifted one end of the chaise. When they had carried the guest about 40 feet he felt pain in the back, at the level of the shoulder blades. The employee has not been free of pain since.

The employee continued working until October 15, 1957. He then left his employment both because of the pain and a disagreement with the employer. Before leaving the employment, the employee ( on his own) made a single visit to Dr. Stevens, who ascribed the pain to a mid-back strain and prescribed an ointment.

After leaving the employment, the employee did no further work. The precise nature or extent of his activity is not disclosed by the record. He continued to have pain between the shoulder blades.

From December 1957 until January 1958, employee was treated by his own Dr. Gray for complaints referable to the mid-back.

On the morning of February 3, 1958, the employee was getting out of bed when he fell and was unable to move from the chest down. On February 7th following his becoming paralyzed, he was operated on resulting in a fusion of his number 3-4-5 and 6 dorsal vertebrae.

Following institution of these proceedings employee was examined by Dr. Morrell. After findings and award by the referee the commission granted a petition for reconsideration upon the ground that the medical evidence of Dr. Morrell failed to support the decision of the referee. In this respect the commission said: 'The Panel believes that, summarizing all of Dr. Morrell's testimony, and with particular emphasis upon his concluding testimony above quoted, that the Doctor said no more than that applicant suffered some injury to his thoracic spine which caused disability prior to that which would naturally have resulted from the metastasis of the cancer. Nothing in the Doctor's testimony indicates that he believed the metastasis was hastened by the development of the cancer in and around the thoracic spine was accelerated by the injury. He then points out that at some point of time, disability due to the cancer took over, with the resulting necessary surgery and treatment. The Panel fails to read into Dr. Morrell's testimony all that the Referee seemed to believe was contained therein.'

Upon granting reconsideration, the panel suggested reference of the matter to an independent medical examiner. Dr. Hare was appointed and following examination gave it as his opinion that: 'The malignancy of the prostate, once it has broken through the capsule of the prostate, tends to spread to bone, and the onset of pain in the site of the metastases is often the first symptom of cancer being present. It has been shown that early involvement of bone by cancer is not detectible by x-ray. It is well known that a malignancy...