Subsequent Injuries Fund v. Industrial Acc. Commission

• Decision Date: 03 April 1964
• Citation: 226 Cal.App.2d 136,37 Cal.Rptr. 844
• Court: California Court of Appeals Court of Appeals
• Parties: SUBSEQUENT INJURIES FUND of the State of California, Petitioner, v. INDUSTRIAL ACCIDENT COMMISSION of the State of California, John D. Rogers and State Compensation Insurance Fund, Respondents. Civ. 21520.

Page 844

37 Cal.Rptr. 844

226 Cal.App.2d 136

SUBSEQUENT INJURIES FUND of the State of California, Petitioner, v. INDUSTRIAL ACCIDENT COMMISSION of the State of California, John D. Rogers and State Compensation Insurance Fund, Respondents.

Civ. 21520.

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

April 3, 1964.

Hearing Denied May 27, 1964.

Stanley Mosk, Atty. Gen., of State of California, B. Franklin Walker, J. L. Henderson, Jr., Deputy Attys. Gen., San Francisco, for petitioner.

Everett A. Corten, Rupert A. Pedrin, San Francisco, for Industrial Accident Commission.

SULLIVAN, Justice.

Petitioner Subsequent Injuries Fund of the State of California, hereafter referred to as the Fund, seeks the annulment of an award made against it by respondent Industrial Accident Commission in favor of respondent John D. Rogers.

On August 31, 1959, Rogers sustained an industrial injury to his back, neck and head while employed as an attorney for the State of California, Department of Public Works, Division of Contracts and Rights of Way. At such time he was also suffering from two preexisting nonindustrial disabilities: (1) a below the knee amputation of the left leg occurring in 1944 as a result of an injury in the armed service; and (2) a total loss of hearing in the left ear congenital in nature. On January 9, 1961, Rogers filed an application with the commission seeking not only a determination of liability for temporary and permanent disability and for medical treatment but also additional subsequent injuries benefits from the Fund based on his preexisting disabilities. ¹

Thereafter the commission issued findings and award determining that the injury caused permanent disability but no compensable temporary disability, that applicant might need further medical treatment and that the Fund had no liability upon the evidence. Accordingly the commission made an award of medical benefits in applicant's favor against the employer's carrier. The foregoing findings and award were grounded on a permanent disability rating of 32 percent (reduced from 40 percent after modification for age and occupation) which was based on disability factors described as follows in the referee's request for a rating: 'Disability in back, head, neck, limiting applicant to light to moderate work.' Since the rating of 32 percent was less than the minimum disability of 40 percent prescribed by the statute governing subsequent injuries benefits as in effect at the date of the injury, liability for such benefits did not attach to the Fund. ²

Rogers thereupon filed a petition for reconsideration alleging that the evidence justified a much higher rating, that the rating was based on a 'conclusionary type description' and that a more complete and detailed description of the factors of disability was required. Applicant's petition was granted and Panel One of the commission thereupon submitted a more detailed description of the factors of disability together with a request for a rating. ³

Pursuant to above request and description, the rating bureau of the commission recommended the following ratings: (a) For the neck, spine and back disability 32 percent (reduced from a standard 40 percent); for the head disability 15 percent (increased from a standard 10 percent). These two ratings totaling 47 percent were reduced to 43 3/4 percent by application of a multiple disability rating table. (b) For the left lower leg disability 46 percent; and for the hearing loss 13 percent. The total of the above percentages, 102 3/4 percent (43 3/4 percent plus 59 percent) was thereafter reduced to 77 3/4 percent by application of the multiple disability rating table. The 43 3/4 percent rating for the industrial injury was then deducted from the total disability rating of 77 3/4 percent, to arrive at a difference of 34 percent representing the preexisting disability chargeable to the Fund.

Petitioner requested that the case be set for further hearing to give it an opportunity to cross-examine the rating specialist. At the ensuing hearing, the rating specialist testified that he rated the head disability separately from the neck, spine and back disability; that he rated the back disability in the light of the direction that applicant was 'limited to light to slightly moderate work'; that if instead of being separated into two paragraphs (see footnote 3, ante) the factors of disability for the head, neck, spine and back were set forth in one paragraph, the recommended rating would be a standard rating of 40 percent; but that both the headache factors of disability and the back factors of disability were separately stated in the rating schedule. The witness further testified over objection of applicant's counsel that when rating the preexisting disabilities he did not consider any factor of rehabilitation possibly undergone by the applicant and that therefore he rated both the leg disability and the ear disability as if they had occurred on August 31, 1959, the date of the industrial injury. ⁴ He also explained the 46 percent rating of the left lower leg disability as follows: The loss of the left leg below the knee was given a standard rating of 50 percent, modified for the applicant's age and occupation to 41 percent. To this was added a combined rating of 5 percent for the swelling and drainage of the stump and the occasional slight to moderate pain, making a total of 46 percent.

Eventually the commission issued an amended decision after reconsideration making an award in favor of the applicant and against the employer's insurance carrier for permanent disability indemnity (based on a permanent disability rating of 43 3/4 percent), medical treatment and medical expenses and also making an award in favor of the applicant and against the Fund for subsequent injuries benefits, based on an assessed liability of 34 percent (i. e., a total permanent disability of 77 3/4 percent less the above 43 3/4 percent).

The Fund contends that (1) a portion of the permanent disability award was for a condition which was temporary rather than permanent; (2) a portion of the award against the Fund was for a disability that did not preexist the industrial injury; (3) the commission should have adjusted its ratings of preexisting disabilities to reflect prior rehabilitation; and (4) the commission's rating of the industrial disabilities was an unwarranted pyramiding of compensation.

Petitioner's first two contentions relate to the 5 percent rating included in the total rating of 46 percent for the applicant's left lower leg disability, as already explained above. In the second and more detailed request for a permanent disability rating, these factors of disability were described thusly: '* * * recurrent swelling at stump, which breaks open and drains; occasional slight to moderate pain from time to time.' It was these two factors in combination to which the rating specialist ascribed a rating of 5 percent. Under its first contention the Fund argues that the condition of swelling and drainage was temporary rather than permanent. At the inception of the proceedings before us, the Fund took the position that the foregoing was the extent of its argument on this point and that it was not arguing that the swelling with drainage did not preexist the industrial injury. However at oral argument the Fund maintained that the above described condition was not preexisting. Under its second contention, the Fund argues that the pain as described above did not preexist the industrial injury.

The point of petitioner's first two contentions is this: Labor Code, § 4751 (see footnote 2, ante) imposes liability on the Fund only for permanent preexisting disabilities. The first condition of recurrent swelling and drainage, says the Fund, was neither permanent nor preexisting. The second condition of pain was not preexisting.

The record discloses the following pertinent evidence: The applicant testified that after wearing the prosthesis for six months, he 'had no difficulty with the stump or the prosthesis'; that for the ensuing period of approximately fifteen years until his accident on August 31, 1959, he lost no work on account of his first injury; and that although sometimes after walking 'there would be a redness or roughness on the stump but never any disorder,' there never had been any drainage in the stump prior to the subsequent injury. It is to be noted that he neither expressly affirmed nor denied the existence of pain in the stump area prior to the subsequent injury. The record shows that intermittent drainage was first observed about three weeks after the 1959 injury; that over the next several months there was a continuous process of swelling and drainage in the stump area; that acting on the advice of his physician, Dr. Maloney, applicant in July 1960 underwent an operation to correct this condition; but that, nevertheless, approximately six weeks later, the condition recurred.

Dr. Lewis, who originally examined the applicant in November 1959, re-examined him on July 3, 1961, chiefly for the purpose of evaluating complaints of stump disability. This re-examination was approximately one year after the operation performed by Dr. Maloney and twenty-two months after the second injury. Dr. Lewis concluded in his medical report that the condition resulted from a cyst of the type common on amputation stumps. ⁵ Dr. Haldeman who examined the applicant on February 12, 1962, one week before the hearing, stated that the applicant then complained of intermittent drainage from the stump of the left leg.

Dr. Hedburg, who examined the applicant on February 1, 1962, also found the same complaint, nothing in his medical report that '[t]here were no episodes of inflammation or breaking down in the stump tissues at any time prior to the injury in question.' After remaking that there were 'varying speculative opinions concerning etiology' by other doctors, Dr. Hedburg's report...