Rootenberg & Getz v. Workers' Comp. Appeals Bd.

• Decision Date: 20 June 1979
• Citation: 94 Cal.App.3d 265,156 Cal.Rptr. 314
• Parties: ROOTENBERG & GETZ and Fremont Indemnity Company, Petitioners, v. WORKERS' COMPENSATION APPEALS BOARD of the State of California, Eleanor L. Harkavy, Respondents. Civ. 53975.
• Court: California Court of Appeals Court of Appeals

Page 314

156 Cal.Rptr. 314

94 Cal.App.3d 265

ROOTENBERG & GETZ and Fremont Indemnity Company, Petitioners, v. WORKERS' COMPENSATION APPEALS BOARD of the State of California, Eleanor L. Harkavy, Respondents.

Civ. 53975.

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

June 20, 1979.

Hearing Denied Aug. 29, 1979.

Allen, Rhodes & Sobelsohn, and Robert S. Goldberg, Los Angeles, for petitioners.

Geffner & Satzman, and Robert Goldstein, Los Angeles, for respondent Eleanor L. Harkavy.

COMPTON, Associate Justice.

Petitioners Rootenberg & Getz and its workers' compensation insurance carrier, Fremont Indemnity Company (hereinafter "Fremont"), contend that the Workers' Compensation Appeals Board ("Board") erred in annulling the decision of the workers' compensation judge which apportioned one-half of the injured worker's permanent disability as nonindustrial and in lieu thereof finding that all of the injured worker's permanent disability was industrially caused as the result of a specific industrial injury (see Lab.Code, § 3208.1) on October 25, 1976.

I

Respondent Eleanor L. Harkavy made the two claims before the Board. In her first claim she alleged a cumulative trauma injury (see Lab.Code, § 3208.1) while employed for various employers, including Rootenberg & Getz, from October 25, 1971 through October 25, 1976, wherein she sustained injury arising out of and occurring in the course of said employment to her heart, internal organs and emotional state. ¹ The second claim alleged a specific injury (see Lab.Code, § 3208.1) to her heart, internal organs and emotional state on October 25, 1976, while employed by Rootenberg & Getz. Rootenberg & Getz employed Harkavy commencing in July 1975 until the date of the alleged specific injury on October 25, 1976. On or about the date of the alleged specific injury, Harkavy suffered a myocardial infarction (heart attack).

Harkavy's job duties for Rootenberg & Getz were as an accountant which took her out of the office a great deal of the time preparing tax reports and financial reports for Rootenberg & Gertz's clients. Much of her work was directed towards deadlines, and it was the quarterly October 31 deadline she was working towards when her specific injury occurred on October 25, 1976.

Harkavy apparently worked without symptoms, pain or discomfort or evidence of disability through October 21, 1976. On Friday, October 22, 1976, Harkavy did not go to work because she was not feeling well. Her complaints that day were fatigue and a heaviness in her chest. The next day, a Saturday, she accompanied a friend and drove to Santa Maria to visit some other friends. There is no evidence to indicate Harkavy did anything out of the ordinary that day. She smoked no more than usual. Sunday evening Harkavy complained of shortness of breath and a heaviness in her chest. The following morning, Monday, October 25, 1976, she was awakened with the symptoms of the previous evening accompanied by chest pain. Harkavy went to work that morning, visited some clients, and at noon went to the emergency room at Kaiser Permanente Hospital ("Kaiser"). She was not admitted. She was advised at Kaiser that it was probably indigestion and that she should go home and rest. Thereafter, Harkavy did not go home but visited some more clients that afternoon and experienced a worsening of the symptoms (i. e., chest pain and shortness of breath). She finished work at around 5:30 p. m. Late that night, at approximately 1 a. m., she went again to Kaiser where she was again told it was indigestion and told to go home and rest. She went home but her symptoms worsened and around 6 a. m. on Tuesday, October 26, 1976, she returned to the Kaiser emergency room. She was told she had suffered a heart attack and was admitted to the hospital. Harkavy was hospitalized from October 26 through November 8, 1976.

In his medical report of October 26, 1976, Arthur Unger, M.D., a physician at Kaiser, diagnosed Harkavy as having suffered an "(a)cute anterior myocardial infarction" as well as noting histories of cigarette smoking and mild hypertension. Dr. Unger reported she has had "(o)ccasional high blood pressure for five years for which she takes Regroton 1/2 pill three times per week," Harkavy's cigarette smoking averaged two packs a day, ² she was also mildly obese, and her father had suffered a heart attack at 61 and her mother had borderline diabetes.

Harkavy's examing physician, Reuben R. Merliss, M.D., noted in his report of April 5, 1977, that Harkavy had suffered an infarct which was precipitated by "two different occupational factors. One was a prolonged tension and anxiety of her work, which accelerated the arteriosclerosis, bringing on the infarct sooner than it would have occurred otherwise. The second was the fact that the infarct went unrecognized and during the early stages the patient worked, aggravating the infarct substantially. If the initial pains were pre-infarctional angina, it could very well be that her work just prior to her hospitalization had precipitated the infarct." "Under all circumstances" Dr. Merliss believed "the infarction and all of its disability is industrial."

Michael S. Wallack, M.D., petitioners' examining physician, took an opposite view in his report of June 28, 1977. Although he agreed that Harkavy has arteriosclerotic heart disease, Dr. Wallack then opined there is "no objective evidence to justify continuing trauma on an industrial basis." Concerning the infarct, Dr. Wallack stated that while it is difficult to ascertain when the infarct began, "(i)n all likelihood, the events which transpired over that period, would have occurred irrespective of work activities on 10/25/76."

When the matter came to hearing, Harkavy elected to proceed against Rootenberg & Getz and Fremont on the cumulative trauma injury pursuant to Labor Code section 5500.5. Under this procedure, Harkavy need only prove her case on the cumulative trauma injury regarding Rootenberg & Getz. Under the terms of Labor Code section 5500.5, if an award is made against Rootenberg & Getz and Fremont on the cumulative trauma claim, it can proceed for contribution against the other employers and carriers within the term of the five-year liability period of Labor Code section 5500.5. (Lab.Code, § 5500.5, subd. (e).)

Following a hearing before the workers' compensation judge, a recommended permanent disability rating issued for the October 25, 1976 injury, apportioning 50 percent of the heart disability to the specific injury and 50 percent to nonindustrial factors. A findings and award to this effect was originally issued on November 14, 1977. At the same time, the workers' compensation judge issued a findings and award with respect to the cumulative trauma injury that Harkavy did not sustain injury arising out of and occurring in the course of her employment.

However, on December 8, 1977, the workers' compensation judge vacated the findings and awards in both cases as a procedural error had occurred. After further proceedings, the workers' compensation judge reissued the findings and award with respect to the specific injury of October 25, 1976. This new findings and award issued on March 24, 1978. This reissued award still allowed for 50 percent apportionment of the permanent disability as nonindustrial. As to the cumulative trauma injury, the workers' compensation judge ordered that case off calendar.

Harkavy then filed with the Board a petition for reconsideration on the specific injury case. In its "Opinion and Order Granting Reconsideration on Decision After Reconsideration," the Board in a two-to-one decision reversed the trial judge on the issue of apportionment. The majority disallowed any apportionment. The Board's majority held that the workers' compensation judge had apportioned on the basis of causation, which was an incorrect legal principle. The dissenting opinion urged that apportionment to causation be allowed in cases such as the present one where there are substantial nonindustrial risk factors (i. e., cigarette smoking).

II

Petitioners contend that the Board erred in finding that there was no apportionment.

"The statutes governing apportionment generally are Labor Code sections 4663 and 4750. Their purpose and limitations are cogently stated in Gardner v. Industrial Acc. Com., 28 Cal.App.2d 682, 684, 83 P.2d 295: 'the Industrial Accident Commission is not authorized, in computing the percentage of permanent disability of an employee caused by an industrial injury, to include any percentage of such disability attributable to a prior industrial or nonindustrial disease or injury; nor is it justified in including in an award any amount as compensation for the disability attributable solely to the prior injury or disease and for which the employment was in no wise (sic) responsible.' " (State Comp. Ins. Fund v. Industrial Acc. Com. (Quick) (1961) 56 Cal.2d 681, 684, 16 Cal.Rptr. 359, 360, 365 P.2d 415, 416; fns. omitted.)

"Under both sections the employer is liable to the extent the industrial injury accelerates, aggravates or 'lights' up the preexisting disability, condition or impairment. (Franklin (v. Workers' Comp. Appeals Bd.), supra, 79 Cal.App.3d (224) at pp. 237, 242-245, 145 Cal.Rptr. 22; Dorman v. Workers' Comp. Appeals Bd., supra, 78 Cal.App.3d 1009, 1018, 144 Cal.Rptr. 573; Bstandig v. Workers' Comp. Appeals Bd., supra, 68 Cal.App.3d 988, 997, 137 Cal.Rptr. 713.) Both sections seek to avoid the employer from being charged with permanent disability unrelated to the industrial injury. (Franklin, supra, 79 Cal.App.3d 224, 235-236, 145 Cal.Rptr. 22.) Further, neither section permits apportionment to mere pathology but only apportionment to disability. (Franklin, supra.)

"Under section 4663, the employer is not liable to the extent the present permanent disability is actually related to the natural progression of the preexisting nonindustrial condition. (Franklin, supra, at pp....