Peter Kiewit Sons v. Industrial Acc. Commission

• Decision Date: 08 June 1965
• Citation: 401 P.2d 921,44 Cal.Rptr. 813,234 Cal.App.2d 831
• Parties: PETER KIEWIT SONS and Argonaut Insurance Company, Petitioners, v. INDUSTRIAL ACCIDENT COMMISSION of the State of California and Marvin U. McLaughlin, Respondents. Civ. 11006.
• Court: California Court of Appeals Court of Appeals

Page 813

44 Cal.Rptr. 813

234 Cal.App.2d 831

PETER KIEWIT SONS and Argonaut Insurance Company, Petitioners, v. INDUSTRIAL ACCIDENT COMMISSION of the State of California and Marvin U. McLaughlin, Respondents.

Civ. 11006.

District Court of Appeal, Third District, California.

June 8, 1965.

Mento, Buchler & Littlefield, by Theodore Morrison, Sacramento, for petitioners.

Sheldon St. Clair, San Francisco, for respondent I.A.C.

Leep & Saunders, Redding, for respondent McLaughlin.

FRIEDMAN, Justice.

Respondent Marvin U. McLaughlin applied for workmen's compensation benefits, naming three employers for whom he had worked during a period of approximately four years preceding his disability. Peter Kiewit Sons was the last employer. For purposes of clarity and convenience we shall refer to the earlier employers as Employers No. 1 and No. 2. The Industrial Accident Commission awarded McLaughlin compensation for temporary total disability and medical expenses payable entirely by the insurance carrier for Peter Kiewit Sons. Kiewit and its insurance carrier seek annulment of the award, claiming lack of substantial evidence and contending in any event for the award's apportionment among the several employers.

McLaughlin worked as a laborer, mostly on construction jobs. On January 7, 1959, he was working for Employer No. 1 and suffered an injury to his back as he was lifting an 80-pound rail. Prior to that accident he had no difficulty with his back, shoulders or legs. He was off work for four days, returned to his job and performed light tasks for a few weeks, then resumed his regular tasks. He developed some pain in his back, legs and left shoulder. A short time later he commenced to suffer from arthritic symptoms in his hands and arms. These arthritic symptoms had no apparent relationship to the back injury.

McLaughlin worked for Employer No. 2 from August 1960 to November 1961 doing heavy labor as a chuck tender. He worked in Nevada for several months, then drew unemployment disability benefits for several months in 1962 because of ailments in his back, legs and left shoulder. In August 1962 he returned to work for Employer No. 2 for a few weeks. He continued to have trouble with his back and legs.

From January to May 1963 McLaughlin worked as a chuck tender for Peter Kiewit Sons. ¹ On May 2, 1963, he had to lay off the job because of his physical difficulties. There is a dispute whether the difficulty consisted only of the arthritis in his shoulder, arms and hands, or whether back pain was also a factor.

In December 1963 McLaughlin filed compensation applications against all three employers. In the case of Employer No. 1, he claimed a specific injury occurring on January 7, 1959. In the other two cases he charged 'repeated trauma' to his back suffered in the course of his employment. After a consolidated hearing, the following findings and award were made: (1) An industrial injury was sustained by McLaughlin on January 7, 1959, arising out of his employment by Employer No. 1, but it caused no temporary disability. The physical condition being not yet stationary, the issues of permanent disability and apportionment of liability were deferred. (2) Employment by Employer No. 2 from 1960 to 1962 did not cause an industrial injury. (3) McLaughlin sustained an industrial injury to his back on May 2, 1963, in the course of his employment with the Kiewit firm. This injury caused temporary total disability commencing on May 2, 1963, and continuing indefinitely thereafter. The condition not being stationary, the issues of permanent disability and apportionment were deferred. Temporary disability of $70 a week commencing May 2, 1963, was awarded against Kiewit's insurer.

Responding to a petition for reconsideration, the referee reported to the commission that 'there is substantial evidence that applicant has disability to his back, although the actual disability may extend more to his arms and hands [and] that his condition became disabling on May 2, 1963, as a result of repeated trauma to his back, or shoulders and arms while employed by the petitioner herein. * * *' The commission denied reconsideration.

We summarize the medical evidence: Dr. Bonar had seen the applicant after the 1959 accident and diagnosed his condition as an acute, severe back strain. A few months later McLaughlin commenced visits to Dr. Thomas, his family doctor. His primary complaints were pain in the shoulders, wrists and hands. He was treated for arthritis and bursitis. His eligibility for state unemployment disability payments in 1962 was based on 'arthritis left shoulder region & back.' He stated that he was having trouble with his back and legs during the period antedating his employment by Kiewit. During his two intervals of employment with Employer No. 2, he complained of trouble with his back and legs. Two days after he commenced work for Kiewit he was having trouble with his back. He testified that the reason he had to stop working for Kiewit on May 2, 1963, was because the arthritis in his shoulders, arms and hands had become worse. On the same day he visited Dr. Thomas, complaining specifically of arthritis in his hands and wrists. The complaints, if any, of back trouble were entirely secondary. In September 1963 McLaughlin's back problem caused Dr. Thomas to prescribe a lumbosacral belt. In December 1963 Dr. Thomas noted complaints of back pain with radiation to the lower extremities. A letter of Dr. Thomas described the latter as 'typical disc symptoms' and suggested myelograms. The report of Dr. Fowler, who saw McLaughlin Laughlin in December 1963 and January 1964, described complaints of pain in the hands and wrists and flareups of arthritic swelling. Dr. Fowler drew a tentative diagnosis of 'acute arthritis, type undetermined, probably early rheumatoid' and said that the claimant should be considered as disabled, at least temporarily. McLaughlin testified that his 'big problem' at that time was his shoulder, arms and hands. X rays were taken about this time and gave the roentgenologist an impression of 'early narrowing and sclerosis of the lower apophyseal joints of the cervical spine on the left.' In February 1964 Dr. Cox noted complaints of swollen hands and wrists and a 'little bit' of back pain. Dr. Cox found excellent mobility of McLaughlin's back and 'nothing wrong' with it. He said that the symptoms were not suggestive of disc pathology.

Petitioners make a twofold attack on the commission's finding, claiming (1) a lack of substantial evidence of disability due to back injury, and (2) absence of substantial evidence of causation in Kiewit's service. There is no evidence of any specific industrial accident suffered in the employ of Kiewit. The commission's brief rests upon the contention that this is a case where Kiewit's service 'either caused, aggravated or exacerbated applicant's back condition to the point of rendering it disabling.'

Compensable disability may be caused by the cumulative contribution of daily work strains, as well as by a single traumatic incident. (Firemen's Fund Indem. Co. v. Industrial Acc. Com., 39 Cal.2d 831, 834, 250 P.2d 148; Beveridge v. Industrial Acc. Com., 175 Cal.App.2d 592, 594-595, 346 P.2d 545; Argonaut Ins. Co. v. Industrial Acc. Com., 231 A.C.A. 136, 141-142, 41 Cal.Rptr. 628; 2 Hanna, The Law of Employee Injuries and Workmen's Compensation 133-134.) 'Microtraumata' is a convenient medical term, describing the piecemeal physical strains whose cumulative effect is disability. (See Argonaut v. Industrial Acc. Com., supra, 231 A.C.A. at pp. 141, 142, 41 Cal.Rptr. 628.) The phenomenon is characteristic of compensation cases involving disabling back conditions among persons engaged in heavy manual labor. The disabling process may have its origin in a specific industrial accident, as in the Beveridge case, supra. It may commence with a nonindustrial pathology, e. g., Argonaut Insurance Co. v. Industrial Acc. Com., supra. Ultimate disability may be caused by the aggravating effect of industrial work strains upon the preexisting pathology. Whether the applicant's work contributed to the ultimate disability is a question of fact for the Industrial Accident Commission, whose determination is binding upon the courts when supported by substantial evidence. (Argonaut Ins. Co. v. Industrial Acc. Com., supra, 231 A.C.A. at p. 140, 41 Cal.Rptr. 628; Beveridge v. Industrial Acc. Com., supra, 175 Cal.App.2d at p. 597, 346 P.2d 545.)

The acceleration, aggravation or 'lighting up' of a preexisting nondisabling condition is an injury in the employment causing it. (Fred Gledhill Chevrolet Co. v. Industrial Acc. Com., 62 A.C. 45, 47, 41 Cal.Rptr. 170, 396 P.2d 586.) The employer takes the employee as he finds him; thus compensation may be granted even though the employee's physical condition subjects him to industrial disability to which a healthy person would be relatively immune. 'In such cases full compensation for the entire disability suffered is recoverable although the physical condition of the employee contributed to and increased the disability caused by the injury or prolonged and interfered with healing and recovery. In other words, there is no authority for prorating the extent of the disability due to the accident itself on the one hand and that due to the aggravation caused by the employee's physical condition on the other.' (Tanenbaum v. Industrial Acc. Com., 4 Cal.2d 615, 617-618, 52 P.2d 215, 216.)

McLaughlin's application charged 'repeated trauma' in Kiewit's service. There was no evidence of a specific accident in that service. The evidence pointed to four possible sources which, combined or separately, resulted in the employee's inability to work: (1) the industrial back injury of 1959; (2) normal progress of nonindustrial arthritis; (3) subjective aches, pains and claims, and (4) the cumulative effect of industrial microtraumata. In the light of this evidence, we have real...