v. Workmen's Comp. App. Bd.

• Decision Date: 22 January 1970
• Docket Number: S.F. 22697
• Citation: 1 Cal.3d 627,83 Cal.Rptr. 208,463 P.2d 432
• Court: California Supreme Court
• Parties: , 463 P.2d 432 Louis J. LeVESQUE, Petitioner, v. WORKMEN'S COMPENSATION APPEALS BOARD, Food Machinery and Chemical Corporation et al., Respondents.

Page 208

83 Cal.Rptr. 208

1 Cal.3d 627, 463 P.2d 432

Louis J. LeVESQUE, Petitioner, v. WORKMEN'S COMPENSATION APPEALS BOARD, Food Machinery and Chemical Corporation et al., Respondents.

S.F. 22697.

Supreme Court of California,

In Bank.

Jan. 22, 1970.

Morgan, Beauzay & Hammer, Robert T. Bledsoe and Victor H. Beauzay, San Jose, for petitioner.

Everett A. Corten, Rupert A. Pedrin, Marcel L. Gunther and Robert N. MacLean, San Francisco, for respondents.

TOBRINER, Justice.

Petitioner seeks review of a decision of the Workmen's Compensation Appeals Board (hereinafter appeals board) after denial of reconsideration in which the appeals board adopted the report and recommendation of the referee who decided that petitioner was entitled to further medical treatment for his injuries but was not entitled to an award of temporary compensation. We conclude that the appeals board's order denying reconsideration may incorporate and include the report of the referee, as long as the referee's report makes reasonably clear the basis of decision; but upon a review of the entire record we hold the appeals board's decision in this case lacks the support of substantial evidence and thus cannot stand.

1. The Facts

Petitioner worked for the Food Machinery and Chemical (FMC) Corporation as a Du-All Saw operator and bar stockkeeper in San Jose, California. Apparently both jobs must be performed together and involve the cutting and storage of metal. Although the petitioner could use an overhead crane for most lifting, the work at times required petitioner to life by hand stock weighing 200 to 250 pounds. ¹ While in the course of his employment, petitioner sustained three separate injuries. On August 14, 1967, he injured his right knee. Having received medical attention, and continuing in his regular employment, he suffered an injury to his left knee on October 18, 1967. Again he received treatment and continued to work until he injured his right elbow on October 26, 1967. Petitioner ceased work on account of the third injury on November 3, 1967, and began receiving temporary disability compensation.

Petitioner initially received treatment from Dr. Karl Schaffl, a physician for the insurance carrier, but Dr. Schaffl referred petitioner to Dr. John J. Dedinsky, an orthepedic specialist, who has treated petitioner for all three of his injuries under authorization from the insurance carrier.

One of Dr. Schaffl's earliest reports indicates that petitioner is suffering from olecranon bursitis, particularly in his right elbow. Since the FMC Corporation had terminated petitioner's employment, Dr. Schaffl concluded on November 13, 1967, that petitioner is 'entitled to compensation until bursitis subsides.' On December 11, 1967, Dr. Schaffl indicated that he was relying upon consultation with Dr. Dedinsky and that '(p)atient will remain on compensation until recovered from all 3 injuries.' Dr. Schaffl reported on January 3, 1968, that petitioner had recovered from his injuries to his right elbow and right knee but still required treatment for his left knee. Dr. Schaffl did not clear petitioner for work, but referred the matter to Dr. Dedinsky.

On January 11, 1968, Dr. Roy Smith agreed with Dr. Schaffl that petitioner required treatment for olecranon bursitis but concluded that petitioner suffered no disability. Neither the referee nor the parties apparently rely upon Dr. Smith's very brief report or Dr. Schaffl's incomplete report. Dr. Smith only saw petitioner once. The referee concluded that petitioner continued disabled through March 1968 without citing Dr. Smith's or Dr. Schaffl's reports, but instead by relying on Dr. Dedinsky's many reports. Dr. Smith's and Dr. Schaffl's reports are not relevant to the period after March 1968 during which petitioner was under the care of Dr. Dedinsky and about which we are here concerned. ²

Dr. Dedinsky reported on January 17, 1968, to Dr. Schaffl that petitioner was 'still totally disabled.' But on February 15, 1968, Dr. Dedinsky indicated that petitioner 'could return to his former type of work as of February 26, 1968.' ³ Although petitioner continued unsuccessfully to seek employment, he received no temporary disability compensation after March 13, 1968. Following termination of temporary disability indemnity payments, petitioner applied for and received unemployment insurance benefits for the periods he remained without work. On March 21, 1968, Dr. Dedinsky cleared petitioner for work: 'TO WHOM IT MAY CONCERN: Louis LeVesque is under my care for an orthopedic problem. He may return to his former type of work, as a DO ALL operator on Monday, March 25th 1968. He may not lift more than 25 1bs. of weight.' ⁴

Again on April 8, 1968, Dr. Dedinsky filed a report which the referee quoted: 'Mr. LeVesque is showing good progress at the present time. He was encouraged to continue with the use of moist heat, elastic bandage support and increased active exercises with reference to the muscles in the region of both knees. At this time, it is felt he could return to his former type of work, as a Do All operator Not requiring heavy lifting. I plan to recheck him in a period of six weeks.' (Italics added.) The treating doctor has never released petitioner from the weight limitations imposed in his work clearance of March 21 and his medical report of April 8, 1968.

After Dr. Dedinsky's limited work clearance, petitioner continued unsuccessfully to seek work until mid-summer 1968 when he secured a job as a cook for the County of Santa Clara, because he had worked as a cook in the past. While petitioner was employed by the county he visited Dr. Dedinsky on July 25 and Dr. Dedinsky reported his conclusion on August 6, which the referee quoted: 'Mr. Louis LeVesque is showing some progressive stabilization of his injuries to both knees and the right elbow. At present, he is working as a cook and feels this is not causing him any particular problem with reference to his knees. He was advised to continue with the use of periodic heat and active exercises for the muscles in both lower extremities. I plan to recheck him in a period of two months.' Petitioner remained at work for the 30-day probationary period, but he could not work full time. At the end of the 30 days the county informed petitioner that his work appeared unsatisfactory and released him.

Petitioner's unemployment compensation coverage ended in September 1968. He continued to seek work and secured a job as a cook for Sweden House. While petitioner was employed at Sweden House, he reported to Dr. Dedinsky for his regular appointment. Dr. Dedinsky did not note petitioner's difficulty in keeping a job as a cook, but simply concluded, 'His symptoms are not too disabling and he has been able to continue working as a cook.' After working only one week at Sweden House, petitioner was dismissed because of his difficulty standing and lifting.

Dr. Dedinsky has reported further visits with petitioner on December 12, 1968, February 14, 1969, and May 22, 1969. ⁵ All these reports and petitioner's testimony before the referee on March 4, 1969, indicate (1) that petitioner continues to suffer from his bursitis condition and the consequence of his three injuries, (2) that petitioner continues to receive treatment for his injuries, and (3) that Dr. Dedinsky has neither repeated nor withdrawn his weight lifting limitation. Continuing to seek work, petitioner requested the assistance of the Department of Rehabilitation. Upon the department's advice petitioner returned to school to learn basic mathematics and English so that he could secure other employment.

At the request of petitioner's attorney, Dr. Messinger thoroughly examined petitioner on November 29, 1968, and rendered a conclusion which the referee quoted, 'The patient has been advised to continue under the care of Dr. John Dedinsky. I do not think this case will be ready for closure for at least another year. He still should be in a modified work category, trying to avoid squatting and kneeling wherever possible, as well as, trying to avoid contusing the right elbow.'

Petitioner filed an application for workmen's compensation benefits for the three injuries on January 22, 1969, and the three cases ⁶ were consolidated for a hearing held on March 4, 1969. The referee found that petitioner's occupation is that of a Du-All Saw operator and bar stockkeeper; that his condition arose from injuries in the course of his employment; that his condition is not yet permanent and stationary; that he did not suffer temporary disability beyond March 21, 1968; and that petitioner is entitled only to further medical treatment reasonably necessary to cure the effects of the injury.

Having filed a timely petition for reconsideration, petitioner contended that he continues to be temporarily disabled and deserves an award of temporary disability compensation until he can return to work. The referee filed a report and recommended denial of reconsideration. After summarizing the medical history of petitioner's condition, the referee concluded, 'The general tenor of the medical reports, especially when considered in the light of other factors, suggests that the doctor's cautions were more in the nature of prophylactic advice rather than rigid restrictions.'

On May 22, 1969, the appeals board filed an order denying reconsideration. ⁷ The petitioner sought a writ of review from the Court of Appeal for the First Appellate District, Division Four, which denied the petition without opinion on September 18, 1969. We granted a hearing to decide whether the appeals board can satisfy the requirements of Labor Code, section 5908.5 ⁸ in denying a petition for reconsideration by incorporating by reference the referee's report. We also undertook consideration of the issue whether the appeals board's denial of temporary disability compensation rests upon substantial evidence.

2. The appeals board may deny of petition for...