State Subsequent Injuries Fund v. Industrial Acc. Commission of Cal., 16585

• Decision Date: 22 September 1955
• Docket Number: No. 16585,16585
• Court: California Court of Appeals Court of Appeals
• Parties: STATE of California, SUBSEQUENT INJURIES FUND, Petitioner. v. INDUSTRIAL ACCIDENT COMMISSION OF the State of CALIFORNIA and Joseph Strauss and General Supply Company and Industrial Indemnity Company, Respondents.

Page 31

288 P.2d 31

135 Cal.App.2d 544

STATE of California, SUBSEQUENT INJURIES FUND, Petitioner. v. INDUSTRIAL ACCIDENT COMMISSION OF the State of CALIFORNIA and Joseph Strauss and General Supply Company and Industrial Indemnity Company, Respondents.

No. 16585.

District Court of Appeal, First District, Division 1, California.

Sept. 22, 1955.

As Corrected on Denial of Rehearing Oct. 21, 1955.

Hearing Denied Nov. 16, 1955.

Edmund G. Brown, Atty. Gen., of the State of California. Gerald F. Carreras, Deputy Atty. Gen., for petitioner.

Daniel C. Murphy, Everett A. Corten, T. Groezinger, San Francisco, for respondent, Industrial Accident Comm.

Leonard, Hanna & Brophy, San Francisco, for respondent, Industrial Indemnity Co.

Charles F. Scully, General Counsel, California State Federation of Labor AFL, San Francisco, Amicus Curiae in support of petition.

BRAY, Justice.

Petitioner seeks review and the annulment of an award and decision after reconsideration made by the respondent Industrial Accident Commission. The award gave respondent Joseph Strauss permanent disability benefits from the Subsequent Injuries Fund. The award was based on a finding that at the time of the industrial injury respondent Strauss suffered from a previous physical disability or physical impairment resulting from heart disease.

Questions Presented.

1. May the commission render an award, under section 4751, Labor Code, against the Subsequent Injuries Fund for unmanifested (asymptomatic) disease processes which preexist an applicant's industrial injury, when such processes do not constitute an actual disability and were theretofore unknown?

2. Is the employer liable for the entire disability?

Facts.

On May 20, 1952, Joseph Strauss filed an application in which he alleged injury arising out of the course of his employment. It was claimed that while employed as a stock clerk on November 19, 1951, by respondent General Supply Company, Strauss sustained an industrial injury as he was 'loading truck with packages resulting in torn heart muscle--resulting in shortness of breath and general weakening of constitution and of health.' He was taken to a hospital and remained under a doctor's care until April 18, 1952. He returned to work (same employer) on May 8, 1952, and continued in his employment until May 28, 1952, when (on this latter date) in the process of lifting a package he again experienced pain and dizziness. Medical testimony indicates that Strauss sustained coronary thrombosis on November 19, 1951, and on May 28, 1952. In the application for adjustment of claim, employee Strauss filled out the line directing the applicant to describe any prior permanent disability or impairment, with the word 'none.'

At the hearing two doctors testified that although the applicant suffered from a preexisting heart disease, the work he was doing on November 19, 1951, aggravated the condition. A third doctor testified in effect that the incident of November 19th was an incident occasioned by the normal progression of the underlying heart disease. The commission issued findings and award on November 19, 1952, decreeing that respondent Strauss had suffered injury to his heart on November 19, 1951. Sometime later, and after the respondent insurance carrier had petitioned the commission for a termination of total disability benefits and respondent Strauss had petitioned for a permanent disability rating, an order issued from the respondent commission whereby the petitioner State of California (Subsequent Injuries Fund) was joined as a party defendant.

At the hearing thereon a Doctor Rosenman testified on behalf of the applicant to the effect that immediately preceding the incident of November 19, 1951, the applicant was afflicted with the disease of arteriosclerosis and the incident of November 19, 1951, would not have occurred had this disease not been present; that had he known of applicant's condition immediately prior to the incident of November 19, 1951, he would have advised against any work which might cause more than a moderate strain, and would have advised against the employee's doing work such as he was doing; that a further infarction, should it occur, would have no relation to the previously decreed industrial infarctions, but would be prompted by the underlying disease.

Another physician, called by the insurance carrier, testified that he agreed with Dr. Rosenman in the above premise; that the employee was physically incapacitated for the work he was doing on November 19, 1951; that the incident on that date would not have occurred if the employee was not suffering from arteriosclerosis.

There was medical testimony to the effect that even had Strauss been examined one hour before his industrially caused infarction, the underlying arteriosclerotic condition could not have been medically ascertained.

At the hearing thereon Strauss testified that until the incident of November 19th he was able to perform his work fully without any physical disability, had no signs or symptoms, and was totally unaware that he had a heart condition.

The commission found that at the time of his injury he 'suffered from a previous physical disability or physical impairment resulting from heart disease. The permanent disability resulting from the industrial injury and the previous impairment or disability of applicant consists of cardiac impairment limiting the applicant to sedentary work only.'

1. Does Section 4751, Labor Code ¹ Apply?

In determining this question we must assume that the commission impliedly found that the applicant at the time of the incident of November 19th had a preexisting heart condition which was unknown which had in nowise interfered with his work, and which probably would not have been discovered by a medical examination. ² The question of whether section 4751, Labor Code, was intended to cover asymptomatic conditions as distinguished from symptomatic ones has never been determined. Section 4750, Labor Code, which is the section providing that where an employee suffering from a previous physical disability or physical impairment sustains an industrial injury, his employer at the latter time is liable for compensation only for that portion of the ensuing disability due to the later injury has been construed both that it applies to asymptomatic conditions and that it does not so apply. In Idaho Maryland Mines Corp. v. Industrial Acc. Comm., 104 Cal.App.2d 567, 232 P.2d 11, in upholding a ruling of the commission finding that the workman's entire disability was due to an industrial injury which lighted up a preexisting unknown heart condition, and an award against his employer at the time of the injury for such disability, the court said, 104 Cal.App.2d at page 570, 232 P.2d at page 13: 'Petitioner's further contention, that Labor Code, § 4750 also applies, is likewise without merit. That section applies only to cases where the employee presently 'is suffering from a previous permanent disability or physical impairment.' Here, although the evidence shows that Duncan had a latent heart disease prior to his injury, his as well as the medical testimony establishes without conflict that he had no 'permanent disability or physical impairment' prior thereto.' This holding is directly contrary to Tanenbaum v. Industrial Acc. Comm., 4 Cal.2d 615, 52 P.2d 215, where, as in the Idaho Maryland case, the preexisting condition was latent and unknown. That case held, 4 Cal.2d at page 618, 52 P.2d at page 216: 'We find nothing in the above authorities, or in others that have come to our attention, that in any way militates against the apportionment made in the present case. As we read the record in this proceeding, the petitioner is now suffering from a disability made up in part of an industrial disability growing out of the injury, including the aggravation or 'lighting up' of the pre-existing dormant arthritic condition, and, in part, though in a lesser degree, of what may be termed a nonindustrial disability resulting from the normal progress of the pre-existing arthritis. Obviously, the latter disability is not attributable to industry and should not be saddled thereon. It is this latter or nonindustrial disability, resulting from the natural and normal progress of the pre-existing condition, that underlies the finding that petitioner's permanent disability is 'partly caused by pre-existing dormant disease and partly by said injury' and requires the apportionment here made.'

It must be borne in mind that section 4750 deals only with the proportion of liability of the employer and is distinct and apart from the proportion of liability of the Subsequent Injuries Fund provided by section 4751.

In construing section 4663, Labor Code (the basic law of apportionment) it has been held, in effect, that if the commission finds that the preexisting disease or condition was 'disabling' (that is, symptomatic and interferes with the employee's ability to work) then an apportionment between the prior disability and the disability due to the subsequent injury would be made. See Subsequent Injuries Fund v. Industrial Acc. Comm. 39 Cal.2d 83, 244 P.2d 889. However, if the preexisting condition were found to be asymptomatic, and the industrial injury aggravated this condition and the resultant disability is partially due to the natural and normal progress of the preexisting condition and partly by the industrial injury 'lighting up' or aggravating that condition, an apportionment will be made and the employer held liable only for the percentage of disability chargeable to the injury. Labor Code § 4663; Tanenbaum v. Industrial Acc. Comm., supra, 4 Cal.2d 615, 619, 52 P.2d 215. If the resultant disability is entirely due to the industrial injury lighting up the previous dormant condition, then the employer is liable for that disability and there can be no apportionment. Id., 4 Cal.2d at pages 617-618, 52 P.2d 215. Associated Indemnity Corp. v....