Vela v. Workmen's Comp. Appeals Bd.

• Decision Date: 29 December 1971
• Citation: 22 Cal.App.3d 513,99 Cal.Rptr. 387
• Court: California Court of Appeals Court of Appeals
• Parties: Marcos A. VELA, Petitioner, v. WORKMEN'S COMPENSATION APPEALS BOARD of the State of California and Johns-Manville Products Corporation, Respondents. Civ. 28181.

Page 387

99 Cal.Rptr. 387

22 Cal.App.3d 513

Marcos A. VELA, Petitioner, v. WORKMEN'S COMPENSATION APPEALS BOARD of the State of California and Johns-Manville Products Corporation, Respondents.

Civ. 28181.

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

Dec. 29, 1971.

Hearing Denied Feb. 23, 1972.

Marcus & Ury, Inc. by Maurice S. Marcus, Pleasant Hill, for petitioner.

Rupert A. Pedrin, Jon L. Gateley, San Francisco, for respondent Workmen's Compensation Appeals Bd.

MOLINARI, Presiding Justice.

In this proceeding a writ of review has been issued for the purpose of reviewing the appeals board's decision that petitioner's admittedly industrially-caused asbestosis caused no temporary disability, and for the purpose of determining whether the provision in said decision that petitioner is entitled to medical treatment for the asbestosis requires that his employer pay for the medical treatment for petitioner's nonindustrial rheumatoid arthritis on the basis that the asbestosis has made it more difficult to treat the arthritis.

Petitioner filed an application for adjudication of his claim alleging that he had suffered a cumulative industrial injury to his lungs while employed as a machine tender (asbestos shingle machine) by the Johns-Manville Products Corporation for a period of 33 years from 1935 to August 12, 1968. The injury was shown to be asbestosis, a species of the genus pneumoconiosis, which is a chronic disease of the lungs caused by the inhalation of large quantities of dust. The referee, in findings adopted by the appeals board (hereinafter 'the Board'), found that petitioner contracted asbestosis as a result of having inhaled asbestos dust during the 33 years of his employment. This finding has not been challenged.

The record discloses that petitioner left his employment with Johns-Manville because he was suffering from rheumatoid arthritis. He was 50 years old at that time. Neither petitioner nor his treating physicians were aware of the presence of asbestosis at the time petitioner left his employment. The diagnosis of asbestosis was made after petitioner was hospitalized and treated for his arthritis. For some three or four years prior to his admission to the hospital on August 13, 1968, petitioner had suffered from and been treated for multiple painful joints. These joints involved the cervical spine, the temporal mendibular joints, the shoulders, elbows, wrists, hands, hips, knees and ankles. Prior to his hospitalization he had experienced much swelling of the joints, pain on motion, limitation of motion and generalized atrophy.

The principal issues before the referee and the Board were (1) whether petitioner was disabled by the nonindustrially-caused rheumatoid arthritis as well as by the industrially-caused asbestosis as to entitle him to temporary disability for the industrially-caused condition when the latter condition existed before he stopped work because of the nonindustrial condition; and (2) whether the industrial injury caused, aggravated or accelerated the nonindustrial condition thereby making the employer responsible for the treatment of both the industrial and nonindustrial conditions. In dealing with these issues the referee and the Board were confronted with conflicting medical testimony which we summarize below.

Dr. Roger Wilson, called as a witness for petitioner, testified that asbestosis is never stationary and will inexorably progress; that the rheumatoid arthritis to the degree suffered by petitioner is disabling; that his inability to work is due to his arthritis; that petitioner was only able to do 'bench work'; that if dust were present he would exclude him from working; that the lung condition and the arthritis are mutually independent; that the lung condition was not accelerated as a result of the arthritis; and that it is difficult to say what disability petitioner may have as a result of the lung condition.

Dr. William C. Kuzell, called by petitioner, testified that asbestosis is progressive; that there is no treatment for it; that the progress of asbestosis affects the rheumatoid condition; that one method of treating the rheumatoid condition is by physical exercise, but that petitioner was unable to exercise because of shortness of breath resulting from the asbestosis; and that petitioner was very limited in his ability to work.

Another witness for petitioner, Dr. Harlan Watkins, Jr., testified that petitioner's arthritis had improved to a considerable degree since he was hospitalized for that condition; that the lung disease had progressed; that petitioner would be severely disabled by the lung disease even if the arthritis did not exist; that petitioner was unable to do anything involving physical effort and that he had shortness of breath even at rest; that when petitioner came to him for treatment he was totally disabled by the arthritis; that any patient with rheumatoid arthritis is much more susceptible to pneumoconiosis; and that any progressive debilitating disease can aggravate the arthritis.

Dr. Ephraim Engleman, called by the employer, testified that petitioner had a pulmonary condition consisting of asbestosis or pneumoconiosis and that while he was ambulatory it was quite apparent that he was disabled; that petitioner is suffering from this disease as well as from rheumatoid arthritis; that the rheumatoid arthritis was not aggravated nor exacerbated in any way by the lung condition; that he could not give an opinion as to the disability petitioner would suffer because of the lung condition if he did not also have arthritis; that if petitioner did not have the lung condition he would recommend a period of extended rest along with directed physical exercise as part of the treatment for the arthritis; and that he could not state what the result would be if that course of treatment were not followed.

The report of Dr. H. Corwin Hinshaw, admitted in evidence on behalf of the employer, states that the pulmonary condition has not progressed since an examination made approximately three months previously; that petitioner could be performing his usual duties if it were not for his rheumatoid arthritis; that the arthritis has not affected his pulmonary condition; and that the pulmonary condition has not caused or aggravated petitioner's rheumatoid arthritis.

The referee determined that, based on the medical record, petitioner sustained a compensable injury consisting of pulmonary asbestosis as a result of his employment; that petitioner became disabled as a result of rheumatoid arthritis which is not related to his employment either causally or by way of aggravation; that he is totally disabled as a result of the arthritis and that, therefore, the industrial injury has not caused compensable loss of time from work; that petitioner's lung condition is not stationary and permanent at this time; and that, therefore, the issue of permanent disability is deferred. The referee also found that petitioner was entitled to further medical treatment to cure or relieve him from the effects of the asbestosis. Petitioner filed a petition for reconsideration which was denied by the Board.

Petitioner argues that when an employee, who while disabled because of a nonindustrial condition, is also found to be disabled by an industrially-caused condition, the injured employee is entitled to temporary disability indemnity for the industrially-caused condition when the same existed before he stopped work because of the nonindustrial condition. He further contends that there is substantial evidence on the basis of the entire record to indicate that at the time he stopped working he was also disabled because of his industrially-caused condition. The Board contends that its decision is within its powers and is supported by substantial evidence.

Before reaching the merits of these respective contentions we reiterate the substantial evidence standard which applies in the judicial review of the evidence in workmen's compensation cases. That standard is that we must review the Entire record to determine whether the Board's conclusion was supported by substantial...