Rushing v. Workmen's Compensation Appeals Bd.

• Decision Date: 25 January 1971
• Citation: 92 Cal.Rptr. 605
• Parties: Gale R. RUSHING, Petitioner, v. WORKMEN'S COMPENSATION APPEALS BOARD et al., Respondents. Civ. 1333.
• Court: California Court of Appeals Court of Appeals

Page 605

92 Cal.Rptr. 605

Gale R. RUSHING, Petitioner, v. WORKMEN'S COMPENSATION APPEALS BOARD et al., Respondents.

Civ. 1333.

Court of Appeal, Fifth District, California.

Jan. 25, 1971.

As Modified on Denial of Rehearing Feb. 23, 1971.

Hearing Denied March 26, 1971.

Kenneth F. Forbes, Los Angeles, for petitioner.

Rupert A. Pedrin and Marcel L. Gunther, San Francisco, for Workmen's Compensation Appeals Bd.

D. Richard Brophy, Hanna & Brophy, Fresno, for Edward Cate, Jr., and Hartford Accident & Indemnity Co.

OPINION

GARGANO, Associate Justice.

Petitioner seeks a review of the opinion and order of the Workmen's Compensation Appeals Board (hereafter referred to as the Board) denying reconsideration of the referee's findings and award disallowing petitioner's claim for workmen's compensation benefits; the referee found that petitioner's testimony that he was injured at work was a fabrication, and the Board sustained the finding.

At the time of his alleged injury, petitioner was employed by respondent Edward Cate, Jr. as a working ranch foreman. He testified that September 23, 1969, he and William T. Phillips, a farm laborer, were hooking up a cultivator to a tractor when the bolt broke, causing the weight of the cultivator, between 400 and 500 pounds, to fall upon him. He told Phillips to check the irrigation water because he was going to the house as his back was hurting. On the following day petitioner could not get out of bed but did not consult the doctor until almost two weeks later because he thought he would get better. He consulted Dr. C. M. Mathias on October 7, 1969; he later informed the doctor that he injured his back while moving heavy equipment. Petitioner stated that after four weeks of treatment his back became worse, and Dr. Mathias referred him to Dr. J. C. Williams. Sometime later he consulted an attorney and was referred to Dr. R. F. Jones.

In a written report, Dr. Jones diagnosed petitioner's back trouble as a probable rupture of the lumbar intervertebral disc and attributed the injury to the cultivator incident. Dr. Williams, on the other hand, while agreeing that petitioner had "an acute disc problem in the low back with a left-sided radicular radiation," opined that the injury was not related to petitioner's work primarily because the symptoms began in the evening and were not preceded by any unusual incident. In his letter to repondent insurance carrier, the doctor stated:

"He is a 48-year-old ranch foreman who states that he had no difficulty with his back whatsoever until September 23, 1969. That evening after work he began noting some discomfort in the low lumbar midline which became progressively worse. He does not recall any incident at work which was different from the ordinary and had no back pain at work associated with anything that he did during the preceding day. Furthermore, he did not do anything during the day preceding the onset of the symptoms any different from his usual work."

In a subsequent letter Dr. Williams added:

"I discussed with him again the reason why I did not think that this was a compensation case. He again could not recall any injury having taken place or anything unusual about his work that day. However, his wife who was present, was more than somewhat aggressively positive that he had been injured at work and that the compensation insurance carrier was liable for his care. I could not get any history of injury, however, from either one of them, only the general statement that it must have been due to his employment as he had not had trouble with his back before."

The record reveals that the referee disbelieved petitioner's testimony as to how he was injured and denied an award because petitioner failed to report the bolt breaking and machine falling incident to Dr. Williams. In his report and recommendation on petitioner's petition for reconsideration, the referee had this to say:

"It was after petitioner consulted counsel *** that the history of the dramatic accident first came to light by way of the 'Application For Adjudication of Claim'. As if that were not incredible enough in and of itself, one week later, on December 1, 1969, when re-examined by Dr. Williams, the doctor was again unable to elicit from him any history of injury whatever and applicant conceded in testimony that, upon being asked by the doctor about a specific incident, he 'did not tell him anything'. Incidentally, Dr. Williams has been known to me for many years as a competent orthopedist with extensive practice in treating the industrially injured. His patient histories are reliable and, indeed, petitioner did not question them in this case.

The conclusion which, I submit, is warranted from the foregoing is that the history petitioner gave to Dr. Jones and his attorneys and which he repeated in testimony is not credible."

The record further reveals that the Board denied petitioner's petition for reconsideration for essentially the same reason. The Board noted that petitioner told Dr. Mathias that he was moving heavy equipment in the shop and that his back started to hurt on the following morning but did not mention the "bolt breaking nor the machine falling." ¹ Referring to that report and to Dr. Williams' letters, the Board determined that:

"The inconsistencies between appellant's testimony and the histories given to Dr. Mathias and Dr. Williams is a circumstance which impairs the credibility of his testimony."

We have concluded that the Board's decision is not founded on substantial evidence. All medical reports substantiate petitioner's claim that he was having considerable trouble with his lower back and that the trouble was caused by a probable rupture of the lumbar intervertebral disc. Moreover, even Dr. Williams' report, upon which both the Board and referee relied to deny the award, allows for the possibility that petitioner's back trouble was caused by his work. Dr. Williams' opinion that the injury was non industrial was based on the assumption that the symptoms began during the evening and were not preceded by any unusual incident; this assumption in turn was based on petitioner's failure to mention the cultivator incident. However, petitioner testified that his back commenced to hurt on September 23, 1969, immediately after he took the full weight of the cultivator, and his...