Wilkinson v. Workers' Comp. Appeals Bd.

• Decision Date: 25 May 1977
• Citation: 19 Cal.3d 491,138 Cal.Rptr. 696,564 P.2d 848
• Parties: , 564 P.2d 848 Ronald C. WILKINSON, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD, Taurean Restaurant et al., Respondents. L.A. 30446.
• Court: California Supreme Court

Page 696

138 Cal.Rptr. 696

19 Cal.3d 491, 564 P.2d 848

Ronald C. WILKINSON, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD, Taurean Restaurant et al., Respondents.

L.A. 30446.

Supreme Court of California, In Bank.

May 25, 1977.

As Modified June 23, 1977.

Banks & Leviton and Eugene Leviton, Santa Ana, for petitioner.

Charles L. Swezey, Philip M. Miyamoto, Thomas J. McBirnie, Jr., San Francisco, Evans, Dalbey & Cumming, Andrew W. Barclay and Barry F. Evans, Hollywood, for respondents.

TOBRINER, Acting Chief Justice.

This is a petition for writ of review by applicant Roland Wilkinson, who incurred successive industrial injuries to both knees and obtained an award of $7,175 based upon a determination that each accident caused 15 1/4 percent permanent disability. Wilkinson claims he should have received an award of $8,662.50 based upon a combined disability for both injuries of 30 1/2 percent. We sustain Wilkinson's contention and annul the decision of the board.

Under the doctrine established in Bauer v. County of Los Angeles (1969) 34 Cal.Comp.Cases 594, whenever a worker, while working for the same employer, sustains successive injuries to the same part of his body and these injuries become permanent at the same time, the worker is entitled to an award based on the combined disability. Rejecting both the suggestion of the board that Bauer should be limited to life pension cases and the contention of the employer that Bauer has been impliedly overruled by our decision in Fuentes v. Workers' Comp. Appeals Bd. (1976) 16 Cal.3d 1, 128 Cal.Rptr. 673, 547 P.2d 449 we apply the Bauer doctrine to the facts of the instant case and direct an award based on the combined disability of 30 1/2 percent.

Applicant Wilkinson was employed as a cook at the Taurean Restaurant in La Habra, Orange County, during the spring of 1972. On April 15, 1972, while carrying a grease trap downstairs to a barrel, he slipped and injured both knees. He reported the injury but did not stop work or seek medical attention. On June 30, 1972, he fell again while carrying a stockpot, injuring his back and both knees. Following this second injury he received medical treatment and, on direction of the treating physician, ceased working as a cook, a job which requires prolonged standing. The referee found that both injuries arose out of and occurred in the course of employment; that finding is not challenged before this court.

Although medical treatment successfully cured the back injury caused by the second fall, Wilkinson's knees continue to pain him, especially when he engages in prolonged, repetitive, or forceful acts which strain his knees. He has limited flexion in both knees, and some atrophy of the leg muscles.

Wilkinson applied for workers' compensation benefits for both injuries. On April 17, 1973, the workers' compensation judge found that his injuries were not stable and awarded only temporary disability benefits. At the hearing of February 20, 1974, the workers' compensation judge determined that the injuries had become permanent, inferentially at the same date. ¹ Thus Wilkinson sustained injuries to the same portion of his body, while working for the same employer, and these injuries became permanent at the same time: the three elements essential for application of the Bauer doctrine.

Because of evidence that Wilkinson had prior knee problems caused by athletic injuries, the judge ordered 50 percent of the objective disability (the limited flexion and muscle atrophy) apportioned to those prior nonindustrial injuries. After deducting the disability allocated to such prior injuries, the rating specialist found a total combined disability attributable to the two industrial accidents of 30 1/2 percent. The judge apportioned the industrial disability caused by the injuries of April 15 and June 30 equally between the two injuries, rating each at 15 1/4 percent. Applying the formula subsequently approved by Fuentes v. Workers' Comp. Appeals Bd., supra, 16 Cal.3d 1, 128 Cal.Rptr. 673, 547 P.2d 449, for calculation of benefits in multiple injury cases, the judge awarded Wilkinson $3,587.50 for each injury, or a total of $7,175.

Wilkinson sought reconsideration, contending that he should have received a total award of $8,662.50, based upon a total disability of 30 1/2 percent. The board granted reconsideration, but subsequently adopted the findings of the workers' compensation judge and affirmed his award. Wilkinson now petitions for review of the board's determination.

In apportioning Wilkinson's industrial disability between the injuries of April 15 and June 30 and in finding an equal division of disability, the board relied on Labor Code section 4750. That section provides that: 'An employee who is suffering from a previous permanent disability or physical impairment and sustains permanent injury thereafter shall not receive from the employer compensation for the later injury in excess of the compensation allowed for such injury when considered by itself and not in conjunction with or in relation to the previous disability or impairment. ( ) The employer shall not be liable for compensation to such an employee for the combined disability, but only for that portion due to the later injury as though no prior disability or impairment had existed.'

In apportioning Wilkinson's disability pursuant to Labor Code section 4750, the board acted contrary to the policy it established in Bauer v. County of Los Angeles, supra, 34 Cal.Comp.Cases 594, in which it announced en banc that whenever a worker sustains successive industrial injuries to the same part of his body while working for the same employer, and these injuries become permanent at the same time, the board should render a single award for the combined disability. Wilkinson correctly points out that the facts of his case come within the Bauer doctrine, and that under Bauer he would be entitled to an award based on his combined disability of 30 1/2 percent. Respondent board, however, suggests the Bauer doctrine should be limited to cases involving a claim for a life pension; respondent employer argues that Bauer has been impliedly disapproved by our decision in Fuentes v. Workers' Comp. Appeals Bd., supra, 16 Cal.3d 1, 128 Cal. 673, 547 P.2d 449. For the reasons we shall explain, we reject respondents' contentions, and uphold the application of the Bauer doctrine to the present case.

In Bauer the worker incurred successive back injuries while employed by the same employer. Since the combined disability exceeded 70 percent, the worker sought a life pension pursuant to Labor Code section 4659. The employer, however, contended that an award based on the combined disability was barred by the requirement of Labor Code section 4750 that the subsequent injury must be 'considered by itself and not in conjunction with . . . the previous disability.'

Replying to the employer's contention, the board stated that: 'We are not convinced . . . that Labor Code Section 4750 is applicable to the successive back injuries. . . . (A)pplicant's back disability as caused by Both injuries became permanent and stationary on the same date. This being so, in a real sense as to the subsequent injury there Was no pre-existing permanent disability. Therefore, the single disability as caused by both injuries can be combined . . .' (34 Cal.Comp.Cases at p. 598.)

The board relied upon a prior panel decision in Revere Copper and Brass v. W.C.A.B. (Dunlap) (1969) Cal. Comp.Cases 532. In that case a worker suffered three successive heart injuries which became permanent at the same time but rated separately at 66 1/2 percent, 67 percent, and 67 percent. Instead of awarding the worker a pension from the Subsequent Injuries Fund based upon the latter two injuries (see Lab.Code, § 4751), the board combined the injuries to find a total permanent disability of 100 percent, thus awarding Dunlap a life pension from the employer. Noting the similarity between the two cases, the board in Bauer concluded that 'the Dunlap method of awarding indemnity is applicable to applicant's back injuries herein and is the fairest, most equitable solution as to all parties.' (34 Cal.Comp.Cases at p. 599.) Board decisions subsequent to Bauer have followed the doctrine established in that case. (See Industrial Indemnity Co. v. Workmen's Comp. App. Bd. (Soliz) (1970) 35 Cal.Comp.Cases 614; A. Abbey & Howard Scrap Metal Co. v. Miller (1972) 37 Cal.Comp.Cases 236.)

The Bauer doctrine is consistent with the language of section 4750, which requires apportionment only when the employee 'is suffering from a Previous permanent disability or physical impairment.' Thus the section does not require apportionment in all cases of successive injuries, but only in cases of successive permanent disabilities. If the worker incurs successive injuries which become permanent At the same time, neither permanent disability is 'previous' to the other, and section 4750 hence does not require apportionment.

Bauer also serves the practical purpose of avoiding the necessity for apportioning disability in a class of cases in which, because of the nature and timing of the injuries, any apportionment is likely to be unsupported by substantial evidence. The present case illustrates the point. Wilkinson did not seek medical help until after his second injury, with the result that the medical experts were only able to view the combined effect of both injuries. Although Dr. Roback indicated that the injury of June 30, 1972, was more serious than the injury of April 15, 1972, neither he nor any other medical expert suggested an apportionment of Wilkinson's disability between the two industrial injuries. ² Thus on the record before us on review, we can discern no substantial evidence to support the board's apportionment of the award equally between the two injuries. ³

The deficiency in the evidentiary support for the board's decision in the present case goes...