Rumbaugh v. Workers' Comp. Appeals Bd.

• Decision Date: 27 December 1978
• Citation: 151 Cal.Rptr. 563,87 Cal.App.3d 907
• Court: California Court of Appeals Court of Appeals
• Parties: William H. RUMBAUGH, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD of the State of California, Pacific Western Enterprises, et al., Truck Insurance Exchange, Zenith National Insurance, Fireman's Fund Insurance, Republic Indemnity Company, Hillside Bar, Fremont Indemnity Company, Midtown Bowl and Republic Indemnity Company of America, Respondents. Civ. 52951.

Page 563

151 Cal.Rptr. 563

87 Cal.App.3d 907

William H. RUMBAUGH, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD of the State of California, Pacific Western Enterprises, et al., Truck Insurance Exchange, Zenith National Insurance, Fireman's Fund Insurance, Republic Indemnity Company, Hillside Bar, Fremont Indemnity Company, Midtown Bowl and Republic Indemnity Company of America, Respondents.

Civ. 52951.

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

Dec. 27, 1978.

Silver & McWilliams and Richard L. McWilliams, Wilmington, for petitioner.

Allen, Rhodes & Sobelsohn and Jeffrey M. Wilson, Los Angeles, for respondents Midtown Bowl and Republic Indem. Co.

Samuelson, Whitehead, Benes & Ringwalt, Los Angeles, and William A. Parsons, Orange, for respondent Truck Ins. Exchange.

COBEY, Acting Presiding Justice.

Petitioner William Rumbaugh contends that the Workers' Compensation Appeals Board ("Board") erred in calculating pursuant to Labor Code section 4658 ¹ the dollar value of the awards for his two industrial back injuries. ²

Since April 1, 1972, section 4658 ³ has provided a graduated scale whereunder the number of weekly benefits increases in proportion to the percentage of the permanent disability. (Fuentes v. Workers' Comp. Appeals Bd. (1976) 16 Cal.3d 1, 4, 128 Cal.Rptr. 673, 547 P.2d 449; Aten v. Workers' Comp. Appeals Bd. (1977) 75 Cal.App.3d 113, 117, 142 Cal.Rptr. 42.) ⁴ It should be further noted that pursuant to sections 4658 and 4659 a permanent disability rating of 70 percent or more entitles the injured to a life pension.

I. Proceedings Before the Appeals Board

Rumbaugh sustained two industrial back injuries. One occurred while he was employed on December 1, 1974, by Midtown Bowl ("Midtown"), whose compensation insurance carrier was then Republic Indemnity Company of America ("Republic"). The second was a cumulative trauma injury to his back while employed by various employers, including Midtown, during the period 1970 through April 18, 1975. ⁵ On the cumulative trauma injury, pursuant to section 5500.5, subdivision (c), Rumbaugh elected to proceed against Midtown and its carrier Republic. ⁶

As a result of the 1974 injury and the cumulative trauma injury Rumbaugh was found to have sustained a total of 76 percent permanent disability, which the workers' compensation judge apportioned 75 percent to the specific 1974 injury and 25 percent to the cumulative trauma injury. Rumbaugh thereby received a permanent disability rating of 57 percent for the 1974 injury, which is equal to 290 weeks of disability payments at $70 per week in the total sum of $20,300; and a rating of 19 percent on the cumulative trauma injury, which is equivalent to 66.25 weeks of permanent disability payments at the rate of $70 per week in the total sum of $4,637.50. The two awards total $24,937.50. No life pension was awarded as to either injury since the permanent disability for neither injury separately was 70 percent or more.

Rumbaugh then sought reconsideration by the Board. He contended that he was entitled to a combined disability rating for the two injuries of 76 percent permanent disability. A 76 percent permanent disability rating would entitle Rumbaugh to an award totalling $30,047.50 payable at $70 per week for 429.25 weeks, and thereafter a life pension of $25.85 per week.

The Board granted reconsideration and analyzed Rumbaugh's position in light of our Supreme Court opinions in Fuentes, supra, 16 Cal.3d 1, 128 Cal.Rptr. 673, 547 P.2d 449 and Wilkinson v. Workers' Comp. Appeals Bd. (1977) 19 Cal.3d 491, 138 Cal.Rptr. 696, 564 P.2d 848. Fuentes And Wilkinson both deal with the application of the graduated benefit scale of section 4658.

Fuentes involved an injured worker who sustained an industrial injury to his lungs. While his total permanent disability rated at 58 percent, only 33.75 percent of that disability was industrially related. The court applied section 4658 by compensating the industrial disability at the bottom of the graduated scale. The court held that this method was required by section 4750 which states:

"An employee who is suffering from a previous permanent disability or physical impairment and sustains permanent injury thereafter shall not receive from the employer compensation for the later injury in excess of the compensation allowed for such injury when considered by itself and not in conjunction with or in relation to the previous disability or impairment.

"The employer shall not be liable for compensation to such an employee for the combined disability, but only for that portion due to the later injury as though no prior disability or impairment had existed."

The court in Fuentes acknowledged that by their application of section 4658 an injured worker who sustained one injury which resulted in 50 percent permanent disability would receive greater benefits than one who sustained two successive injuries each of which causes a permanent disability of 25 percent when considered alone. ⁷ The court viewed this result as "neither unfair nor unjust" but "(r)ather, it is a consequence of the recent amendments to section 4658 and is consistent with the . . . policy (of section 4750) of encouraging employers to hire the disabled." (Fuentes, supra, 16 Cal.3d at p. 8, 128 Cal.Rptr. at p. 678, 547 P.2d at p. 454.) ⁸

In Wilkinson the injured sustained two successive bilateral knee injuries while working for the same employer. The two injuries became permanent and stationary ⁹ at the same time. The appeals board awarded the injured a 15.25 percent permanent disability rating for each injury. The Supreme Court annulled the two separate awards and held that the injured was entitled to a combined permanent disability award of 30.5 percent. The Wilkinson court reached that result by following the reasoning of the Board in Bauer v. County of Los Angeles (1969) 34 Cal.Comp. Cases 594.

While Bauer was decided prior to the adoption of the graduated scale of section 4658, the Wilkinson court found it relevant as Bauer dealt with the situation where three successive injuries resulted in a combined disability in the life pension range (i.e., 70 percent or more permanent disability) while each injury if considered alone would not have resulted in a life pension. In Bauer the Board held that the injured was entitled to a life pension.

As summarized by the Supreme Court in Wilkinson, the Bauer doctrine provides that "whenever a worker, while working for the same employer, sustains successive injuries to the same part of his body and these injuries become permanent at the same time, the worker is entitled to an award based upon the combined disability." (Wilkinson, supra, 19 Cal.3d at p. 494, 138 Cal.Rptr. at p. 698, 564 P.2d at p. 450.)

The Wilkinson court found that Bauer was not inconsistent with the requirement of section 4750 that there be apportionment of successive permanent disabilities. The court reasoned that "(i)f the worker incurs successive injuries which become permanent At the same time, neither permanent disability is 'previous' to the other, and section 4750 hence does not require apportionment." (Wilkinson, supra, 19 Cal.3d at p. 497, 138 Cal.Rptr. at p. 700, 564 P.2d at p. 852; italics in original.)

The Wilkinson opinion then goes on to explain that "Bauer also serves the practical purpose of avoiding the (need to apportion) disability in a class of cases in which, because of the nature and timing of the injuries, any apportionment is likely to be unsupported by substantial evidence." (Id., at p. 497, 138 Cal.Rptr. at p. 700, 564 P.2d at p. 852; Aten, supra, 75 Cal.App.3d 113, 118-119, 142 Cal.Rptr. 42.)

In Wilkinson, the court was careful to note that it was not overruling Fuentes but rather that it was distinguishing it based upon Bauer. (Wilkinson, supra, 19 Cal.3d 491, 500-501, 138 Cal.Rptr. 696, 564 P.2d 848.)

In reviewing Rumbaugh's two injuries, the Board noted that one element of the Wilkinson-Bauer doctrine was not present the employers for the cumulative trauma and the 1974 injury were not the same. Accordingly, the Board refused to apply Wilkinson-Bauer and affirmed the trial judge's separate awards. ¹⁰

II. Discussion

Wilkinson spells out the three requirements for the application of the Bauer doctrine to cases coming under the progressive schedule of section 4658. They are:

1. The successive injuries must be sustained in the employ of the same employer 2. The successive injuries must involve the same parts of the body; and

3. The successive injuries must become permanent and stationary at the same time.

Here, both of Rumbaugh's injuries involve back disability and both injuries became permanent and stationary at the same time. The missing element under Wilkinson is that the injuries here did not occur while working for the same employer; rather, while one of the employers in the cumulative trauma claim, Midtown, was the same employer for the 1974 specific injury, there are other employers for the cumulative trauma injury.

The issue then is whether the Bauer-Wilkinson doctrine may be applied where there is not an identity of employers at the times of the successive injuries.

In Wilkinson, at pages 500-501, 138 Cal.Rptr. at page 702, 564 P.2d at page 854, the court, in rejecting the contention that applying Bauer conflicted with the state policy of encouraging employers to hire and retain handicapped persons, stated: "The Bauer doctrine as presently limited only applies to cases in which both injuries were sustained in the course of employment by the same employer and thus would not discourage hiring of previously injured persons. And since that doctrine applies only in the rare circumstance that an employee sustains a second injury to the same part of his body before the first injury has become permanent, we cannot see how Bauer would induce employers to discharge injured workers."

Seemingly, this language limits Wilkinson to the very "rare"...