State Comp. Ins. Fund v. Workmen's Comp. App. Bd.

• Decision Date: 18 November 1969
• Citation: 82 Cal.Rptr. 102,1 Cal.App.3d 812
• Parties: STATE COMPENSATION INSURANCE FUND, Petitioner, v. WORKMEN'S COMPENSATION APPEALS BOARD of the State of California, Southern Rapid Transit District and Walter E. Burris, Respondents. Civ. 33558.
• Court: California Court of Appeals Court of Appeals

Page 102

82 Cal.Rptr. 102

1 Cal.App.3d 812

STATE COMPENSATION INSURANCE FUND, Petitioner, v. WORKMEN'S COMPENSATION APPEALS BOARD of the State of California, Southern Rapid Transit District and Walter E. Burris, Respondents.

Civ. 33558.

Court of Appeal, Second District, Division 5, California.

Nov. 18, 1969.

T. Groezinger, Loton Wells, and A. C. Jones, Jr., San Francisco, for petitioner.

Everett A. Corten, San Francisco, and Gabriel L. Sipos, Lawndale, for respondent Workmen's Compensation Appeals Board.

Zonni, Ginocchio & Taylor, by Ralph D. Malmquist, Los Angeles, for respondent Metropolitan Rapid Transit Dist.

No appearance for applicant Walter Burris.

STEPHENS, Acting Presiding Justice.

The State Compensation Insurance Funds seeks review and annulment of an award of the Workmen's Compensation Appeals Board.

On September 8, 1966, Walter Burris, a bus driver, filed two claims for workmen's compensation. In one, he alleged that he sustained a specific industrial injury to his back in February 1962. In the other, he alleged cumulative industrial injury to his back from February 1962 to July 21, 1966.

The claims were consolidated for hearing. Burris testified that in February 1962, the front wheel of the bus he was driving slipped off a streetcar track into a chuckhole, causing him to twist from the waist up. He felt pain in his low back. It was the first time he had ever had any pain in his low back. In the days following, he felt a dull pain, which increased while he was driving the bus. He went to a doctor ten days later, at which time the low back pain had become severe and he had some shooting pains down his right leg. The doctor was in a medical clinic in the driver's building. The doctor asked him if he had fallen, and Burris described the chuckhole incident. The doctor x-rayed Burris' back, gave him heat treatment and told him to stop working. He referred Burris to an orthopedist, Dr. Rolland. Burris went to Dr. Rolland the same day and gave him the same history. Burris asked him whether the trouble could have started from the incident of the wheel slipping off the track, and the doctor said he didn't know. In a report dated February 21, 1962, Dr. Rolland diagnosed applicant's condition as a lumbosacral sprain, and noted X-ray evidence of congenital weakness in that area. The doctor treated him with an ultrasonic and heating pad for about 12 weeks. He returned to work during the last week of treatment, at which time he had a dull pain in his low back which was not too severe. After returning to work, he continued to suffer with dull pains in his low back. It would become a sharp pain by quitting time and became more severe as time went on. By February of 1966 he was not able to work because of pain and he obtained medical treatment under a group medical plan. He told the doctor of the chuckhole incident and that he had pain since 1962. He was off work seven days and felt improved when he returned to work. His pain gradually became worse, and on July 18, 1966, the pain had become more severe than it had been in February. He returned for medical treatment, and had been under treatment since that time.

In a report dated September 22, 1966, Dr. Scandalis, an orthopedic surgeon who examined applicant, concluded that applicant '* * * had a low back sprain that started out in 1962 when he was driving a bus and it hit a chuckhole. Apparently the pain gradually got worse to the point that he had to quit work on July 21, 1966.' In a report dated February 7, 1967, Dr. Zaccalini, an orthopedic surgeon who treated applicant, diagnosed a disc herniation and stated that '* * * the back injury could have been caused by the injury of February 1962 and aggravated by his continued occupation as a bus driver.' In a report dated August 16, 1967, Dr. Reid, appointed as an independent medical examiner, expressed the opinion, based on a myelogram and the history given by the applicant, that the injury of 1962 was the initiating factor, and his work activities could be considered to have caused periodic flare-ups without another specific injury.

It appeared that applicant was continuously employed in the same assignment as a bus driver during the whole period, but that from February 1962 through February 28, 1964, his employer was the Metropolitan Transit Authority, insured by the State Compensation Insurance Fund, and from March 1, 1964 through July 21, 1966, his employer was the Southern California Rapid Transit District, a successor entity. The record reflects that the defendants raised the defense that the claim for specific injury in February 1962 was barred by the statute of limitations.

In the specific industrial injury claim, the referee found that applicant had sustained a specific injury in February 1962, but because all benefits were being awarded in the cumulative injury claim, the applicant should take nothing 'at this time' on the specific action. In the cumulative injury claim, the referee found that applicant sustained cumulative injury from February 1962 to July 1966, and issued a joint and several award against the two employers and the State Compensation Insurance Fund as the insurer for the Metropolitan Transit Authority.

All of the defendants filed petitions for reconsideration of the award on cumulative injury claim. Upon reconsideration, and relying upon the evidence set out above, the appeals board concluded that 'the more persuasive evidence in this case compels a finding of cumulative injury.' It found that the cumulative injury caused temporary disability for a period of approximately 12 weeks in 1962, the liability for which was a several obligation of the State Compensation Insurance Fund. It also found that the injury caused temporary disability for one week in February 1966, and again beginning July 22, 1966 through December 15, 1967 and continuing thereafter, the liability for which was the joint and several obligation of the State Compensation Insurance Fund and the Southern California Rapid Transit District. Award issued accordingly. The award also included a joint and several award against the State Compensation Insurance Fund and Southern California Rapid Transit District for reimbursement of self-procured medical treatment and medical-legal costs. It was ordered that Southern California Rapid Transit District be primarily responsible for the payment of compensation and costs and for the rendering of further medical care, subject to its right to seek contribution from the State Compensation Insurance Fund.

The State Compensation Insurance Fund seeks review and annulment of the findings and award insofar as it has been held solely liable for temporary disability indemnity for the period of approximately 12 weeks in 1962 during the time Dr. Rolland was providing treatment. It contends that the board should have denied compensation for this period of disability on either of the following grounds: (1) 'If the specific incident of February 1962 is held to be merged with the cumulative injury, then the period of temporary disability would have occurred before July 21, 1966, the date of injury, and the board would have no power to award compensation therefor'; (2) 'If the specific injury is held to be a separate incident, then it is barred by the one year statute of limitations. * * *'

Southern California Rapid Transit District contends that the specific incident in 1962 cannot be viewed as simply a part of the cumulative injury, and that the fund waived the defense of the statute of limitations by failing to raise the issue by petition for reconsideration.

The board indicated in its opinion that the 'applicant's claim for temporary disability following and caused by the specific incident of February 1962 would likely have been outlawed by the statute of limitations.' However, since none of the parties had specifically questioned the propriety of the award for this disability in the cumulative injury case in their petitions for reconsideration, they were deemed to have waived the defense of the statute of limitations. The board appears to have treated the period of temporary disability as though it was caused by a specific injury, despite its conclusion that the disability was the result of cumulative injury.

Before we may consider the correctness of the appeals board's ruling, a brief discussion of the law applicable prior to January 1, 1969 is necessary.

The basis statute of limitations in workmen's compensation proceedings requires that original claims be filed within one year from the date of injury or the date of the last voluntary furnishing of benefits to the employee. (Lab.Code, § 5405.) The 'date of injury' is the date on which the alleged 'incident or exposure' occurred except in the...