Subsequent Injuries Fund of Cal. v. Industrial Acc. Commission

• Decision Date: 15 January 1960
• Citation: 348 P.2d 193,1 Cal.Rptr. 833,53 Cal.2d 392
• Parties: , 348 P.2d 193 SUBSEQUENT INJURIES FUND OF the State of CALIFORNIA, Petitioner, v. INDUSTRIAL ACCIDENT COMMISSION et al., Respondents. L. A. 25584.
• Court: California Supreme Court

Page 833

1 Cal.Rptr. 833

53 Cal.2d 392, 348 P.2d 193

SUBSEQUENT INJURIES FUND OF the State of CALIFORNIA, Petitioner, v. INDUSTRIAL ACCIDENT COMMISSION et al., Respondents.

L. A. 25584.

Supreme Court of California, In Bank.

Jan. 15, 1960.

Rehearing Denied Feb. 10, 1960.

Stanley Mosk, Atty. Gen., Gerald F. Carreras, B. Franklin Walker and Richard A. Gadbois, Jr., Deputy Attys. Gen., for petitioner.

Everett A. Corten, San Francisco, Edward A. Sarkisian, Minsky, Garber & Rudof and Joel Rudof, Los Angeles, for respondents.

SCHAUER, Justice.

Petitioner Subsequent Injuries Fund of the State of California (hereinafter called the fund) seeks annulment of an award of compensation payments made against it by respondent industrial accident commission, in favor of respondent Baldes. We have concluded that there is no merit in contentions of the fund that the doctrine of the law of the case compels annulment or that the award is without support in the evidence. The award will therefore be affirmed.

In November, 1953, Baldes, then 48 years of age, while in the employ of respondent Bethlehem Pacific Coast Steel Corporation (hereinafter called Bethlehem), sustained an industrial accident which resulted in the loss of sight in his right eye. After brief hospitalization for this injury he returned to work, but about a month later experienced a recurrence of certain earlier 'nervous' symptoms. He became unable to work or to care for himself, and was hospitalized and his condition diagnosed as psychotic. In December, 1954, he filed an application for payments from respondent fund under the provisions of section 4751 of the Labor Code, ¹ in which he alleged that prior to the industrial injury he was 'permanently and partially disabled with a mental disease, described as * * * Psychotic depressive reaction manifested by depression, psychomotor retardation, anxiety, worry, transient hallucinations, and delusions, feelings of helplessness, and inability to cope with difficulties, in partial remission,' and that the combined disability resulting from the existing industrial condition and the industrial disability due to the injury to his eye was in excess of 70 per cent of total disability.

In November, 1956, the commission found that Baldes had had a previous permanent partial disability, and that the percentage of permanent disability resulting from his industrial injury and the prior nonindustrial disability amounted to 79 per cent of total, of which 46 per cent was attributed to the industrial injury and is not in issue here. An award against the fund was made of additional compensation for the remainder of the combined permanent disability existing after the industrial injury. No evidence was offered before the commission as to whether Bethlehem had knowledge of the prior nonindustrial disability and the commission made no findings upon that issue.

Upon the fund's petition for review, the award against it was annulled and the proceeding remanded in State of California, Subsequent Injuries Fund v. Industrial Accident Commission (1957), 150 Cal.App.2d 716, 311 P.2d 26, on the authority of previous district court of appeal decisions stating or holding that the fund was liable only if the previous disability was or should have been known to the employer. After notice to the employe and failure by him to produce evidence of his employer's knowledge of any preexisting disability, the commission, in August, 1957, denied recovery from the fund.

Thereafter, in Ferguson v. Industrial Acc. Com. (1958), 50 Cal.2d 469, 475(2), 477(8), 479(13), 326 P.2d 145, this court held that the subsequent injuries legislation does not require employer knowledge of the preexisting disability to support an award against the fund, and disapproved the contrary holdings or implications of the previous district court of appeal opinions, including the first opinion in this (Baldes) case. The commission then reopened this matter for reconsideration in the light of the Ferguson decision and again made an award against the fund. This second award is now before us for review.

As grounds for annulment, the fund first contends that under the doctrine of the law of the case the commission was bound by the previous ruling of the district court of appeal in State of California Subsequent Injuries Fund v. Industrial Acc. Com. (1957), supra, 150 Cal.App.2d 716, 719(3, 4), 311 P.2d 26, that employer knowledge of the preexisting disability was required to support the award against the fund. There is, however, a recognized exception to the doctrine of the law of the case where, as here, there has been an intervening change or clarification in the law. In Gore v. Bingaman (1942), 20 Cal.2d 118, 122-123(4), 124 P.2d 17, this court enunciated the rule as follows: 'It is true that the law of the case doctrine is a procedural rule which is generally followed, not because the court is without power to reconsider a former determination, but because the orderly processes of judicial procedure require an end to litigation. In the absence of exceptional circumstances of hardship and injustice the need for attributing finality to considered judicial determinations compels adherence to the previous decision. But the rule should never be made the instrument of injustice. Thus, where the controlling rules of law have been altered or clarified in the interval between the first and second appeal and adherence to the previous decision would result in defeating a just cause, it has been held that the court will not hesitate to reconsider its prior determination. (See England v. Hospital of Good Samaritan (1939), 14 Cal.2d 791, 795 (97 P.2d 813); 42 Harv.L.Rev. 938.)' (See also Standard Oil Co. of California v. Johnson (1942), 56 Cal.App.2d 411, 415-416(1), 132 P.2d 910.)

It follows that the law of the case doctrine does not compel annulment of the second award against the fund.

The fund next contends that the record contains no evidence that prior to the industrial injury Baldes was permanently partially disabled within the meaning of section 4751 of the Labor Code as interpreted by this court, so as to entitle him to fund benefits. This contention, for reasons hereinafter shown, is likewise without merit.

The record shows that in 1949, after 23 years' almost continuous service in the United States Navy, during which Baldes worked primarily in engine rooms, he was discharged to the fleet reserve with the rating of chief engine man. During the next year and a half he had difficulty in obtaining employment but did work at odd jobs. In 1951 he was recalled to active naval service and assigned to teach mechanics. He felt unequal to teaching and developed nervous symptoms, including fear and apprehension, difficulty in swallowing and speaking, and chest pains. He was hospitalized for psychiatric observation for 22 days, then returned to duty as master at arms and had no nervous symptoms during his further Navy service. In January, 1953, he was released from active duty and employed as a maintenance mechanic by Bethlehem. He testified that during his employment by Bethlehem he had no trouble performing his work as a mechanic. On November 6, 1953, he sustained the industrial injury; a sliver of steel entered his right eye, with resultant eventual loss of sight thereof. After overnight hospitalization for this injury he returned to work in about three weeks, but his injured eye 'got more and more shady.' When it failed to clear up he 'started getting scared that it never would,' again had nervous symptoms, and about January 1, 1954, became unable to work or to care for himself.

On March 30, 1954, he was again hospitalized, and his condition diagnosed as 'Psychotic depressive reaction manifested by depression, psychomotor retardation, anxiety, worry, transient hallucinations and delusions, feelings of helplessness, and inability to cope with difficulties, in partial remission.' In November, 1954, he was released from the hospital on a trial basis and was not required to return. However, upon a physician's advice he did not attempt to resume employment and his personality disorder was more serious than it had been before his psychotic break.

The records of the veteran's hospital where the above diagnosis was made state further that as of May, 1954, Baldes' 'movements were slow, and throughout the interview he had a vague, humorless smile on his face. He answered questions slowly in a rather low voice and tended to ramble even when asked to change the subject. He shows some evidence of psychomotor retardation, and although there was no definite evidence of depression at this time, he does admit having been depressed and confused in the past, and of being the type that worries considerably about even minor events. He cannot give a very adequate description of the events which lead up to his admission to either this hospital or Metropolitan State Hospital (from which he had been transferred to the veteran's hospital). He describes this as 'happening in a dream. " Baldes was 'rated by the Veterans Administration as having incurred his mental illness while in the Armed Forces' and as being entitled to monthly disability compensation since May, 1954. He testified that he had declined such compensation as it would have affected his Naval retirement pension.

The report of Dr. Gordy, a neuropsychiatrist who examined Baldes in June, 1955, and was informed by Baldes and his wife of his previous work and hospitalization experience, includes the following statements: 'Between January and November, 1953, patient states he went to work (for Bethlehem), never missed a day, and considered that he was holding a pretty responsible job. He was working mostly on pumps and air compressors. He worked by himself and did his own repairs. On the day of the accident to his right eye, he had been transferred to working with a gang instead of alone and recalls he was extremely reluctant to go to...