Zenith Insurance Co. v. Workers' Comp. Appeals Bd.
| Decision Date | 01 October 1981 |
| Citation | 176 Cal.Rptr. 920,124 Cal.App.3d 176 |
| Parties | ZENITH INSURANCE COMPANY, Petitioner, v. The WORKERS' COMPENSATION APPEALS BOARD of the State of California and Dorothy Thweatt, Respondents. Civ. 25606. |
| Court | California Court of Appeals Court of Appeals |
Chernow & Lieb and Alex S. Chernow, Encino, for petitioner.
Banks, Leviton, Kelley, Drass & Kelsey, Inc. and Seth J. Kelsey, Santa Ana, for respondent.
Petitioner Zenith Insurance Company (Zenith), a workers' compensation carrier, seeks review and annulment of a Workers' Compensation Appeals Board decision awarding full death benefits, medical benefits, and burial expenses to the widow of an employee who died of work-induced congestive heart failure. Zenith maintains that 50 percent of the contributing cause of death was a cumulative heart injury sustained by the employee during an earlier period of employment and that therefore the board should have permitted the widow to recover only 50 percent of the death and other benefits from its insured.
In Pacific Gas & Elec. Co. v. Ind. Acc. Com. (1961) 56 Cal.2d 219, 14 Cal.Rptr. 548, 363 P.2d 596, our Supreme Court held that the Legislature made no provision for apportionment of death benefits and that absent express legislative direction, such benefits are not apportionable. Zenith contends that Labor Code section 3208.2 which was added in 1968 nullified the Pacific Gas & Elec. decision and mandates apportionment of the death and other benefits awarded in this case. 1 The section provides in pertinent part that when "death results from the combined effect of two or more injuries ... all questions of fact and law shall be separately determined with respect to each such injury, including ... the apportionment between such injuries of liability for ... any death benefit." For reasons stated below, we hold that the high court's decision has not been abrogated by section 3208.2 and that under our workers' compensation law, death benefits, medical benefits and burial expenses are not apportionable.
The pertinent facts are not in dispute. From July 1963 to July 1967, the decedent was employed by D.N., Inc. In July 1967, while so employed decedent suffered a myocardial infarction necessitating hospitalization for two weeks. He suffered a second attack in 1968 while employed by an insurance company. In 1970 or 1971 he underwent coronary artery bypass surgery. About a month after the surgery decedent was able to resume most of his normal activities. In May or June 1976, he was employed by Grove Gunite Corporation (Grove) in a management capacity. In August 1976, he was again hospitalized for two or three weeks because of his heart condition. In November 1977, he suffered a major attack while on his way to a bank to arrange financing for Grove. Between December 1977 and January 1978, he worked for a few hours a day but after January he ceased working.
In February 1978, the employee filed two separate applications for workers' compensation benefits for cumulative injuries to his heart, one for the period of employment with Grove and the other for the period of employment with D.N., Inc. Following a consolidated hearing on the applications, the judge issued findings and award in the Grove case in which he apportioned 50 percent of the employee's permanent disability to the cumulative heart injury suffered during his employment with Grove. In the D.N., Inc. case, the judge decided he lacked jurisdiction to award benefits because more than five years had elapsed from the date of the injury to the filing of the application. On the employee's petition for reconsideration in the D.N., Inc. case, the board remanded the matter to the trial judge for further proceedings and findings on the statute of limitations issue, particularly as to whether the claim was barred under section 5412 because applicant knew or should have known at the time of his 1967 heart attack that it may have been industrially caused. 2 Before further proceedings could be had in the D.N., Inc. matter, the employee died. His widow then amended the Grove application to one for death benefits At the hearing on the application for death benefits, Grove's compensation carrier argued that section 3208.2 required apportionment of 50 percent of the death benefits to the cumulative heart injury sustained by decedent during his employment with D.N., Inc. so that the award against Grove should be for only 50 percent of the benefits. The judge denied the requested apportionment and awarded the widow (the sole dependent) full death benefits of $50,000, reimbursement of medical expenses in the sum of $6,782.92 and burial expenses of $1,500. The board granted the carriers' petition for reconsideration but in its opinion on reconsideration ruled that section 3208.2 did not require apportionment and affirmed the award after reducing the burial expenses to $1,000, the maximum then allowable. 4 First, the board noted that section 3208.2 has been held to operate prospectively only so that an injury occurring before its operative date (Jan. 1, 1969) may be merged into a later cumulative injury. The board added, however, that even if the statute applied and foreclosed the merger, under the Pacific Gas & Elec. decision, an employer is liable for full death benefits upon a showing that the industrial injury hastened or contributed to the employee's death and the benefits are not apportionable by reason of any predisposing or other contributing cause.
and settled the D.N., Inc. case by a compromise and release agreement. 3
Zenith contends that when death results from the combined effects of two or more injuries, section 3208.2 requires apportionment of death benefits, costs of medical treatment and burial expenses, so that on the basis of the findings made in the employee's disability applications, Grove should have been liable to the widow for only 50 percent of the benefits awarded.
In Pacific Gas & Elec. Co. v. Ind. Acc. Com., supra, 56 Cal.2d 219, 14 Cal.Rptr. 548, 363 P.2d 596, the commission had awarded full death benefits to the employee's dependents based on a finding that death was the result of a work-related back injury combined with a nonindustrial cancer. The employer contended that when an industrial injury combines with a preexisting disease to cause death, section 4663 requires apportionment of death benefits in the proportion that each factor contributes to the death. 5
In holding that death benefits were not apportionable, the court pointed out that section 4663 and sections 4750-4755 relating to payments from the Subsequent Injury Fund deal with apportionment of compensation for disability and that the Legislature had made no provision for apportionment of death benefits payable to dependents. The court viewed the absence of such provisions as reflecting a legislative choice to make death benefits nonapportionable. The court referred to the fact that in cases of total dependency, the Legislature provided for death benefits in fixed amounts without regard to the employee's earnings and stated that it must be assumed "that the Legislature has determined that it is socially desirable to make a reasonably adequate provision for such dependents in every case of industrially caused death without regard to other considerations." (56 Cal.2d 222-223, 14 Cal.Rptr. 548, 363 P.2d 596.) The court turned aside the employer's argument that it was unfair to require it to pay full death benefits where a preexisting disease is a contributing factor, saying: "It is inherent in this system that the statutory recovery, whatever it may be, shall be allowed in every case to which the statute Thus, unless the Pacific Gas & Elec. decision has been voided by section 3208.2, death benefits are not apportionable.
makes it applicable, and apparent hardship in individual cases to either employer, employee or dependents (unless expressly provided for by the statute) must be disregarded in view of the social desirability of the system as a whole." (Id., at p. 223, 14 Cal.Rptr. 548, 363 P.2d 596.)
Section 3208.1, section 3208.2, and an amendment to section 5303 were enacted in 1968 as a legislative package known as the anti-merger legislation which was designed to deal with the judicially-evolved doctrine of merger of specific injuries into cumulative trauma injuries. (Stats.1968, 1st Ex. Sess., ch. 4, p. 31, operative Jan. 1, 1969.)
The concept of cumulative trauma injury had been judicially developed long before it was given legislative recognition and attention for the first time in 1968. (See Fruehauf Corp. v. Workmen's Comp. App. Bd., 68 Cal.2d 569, 574, 68 Cal.Rptr. 164, 440 P.2d 236; Fireman's Fund Indem. Co. v. Ind. Acc. Com., 39 Cal.2d 831, 834, 247 P.2d 148; Beveridge v. Industrial Acc. Com., 175 Cal.App.2d 592, 595, 346 P.2d 545; see Swezey, Repetitive Trauma As Industrial Injury in California, 21 Hastings L.J. 631.) Under the decisional law extant before the operative date of the anti-merger legislation, a cumulative injury could arise out of an employment period during which the employee may have suffered separate specific incidents which occasioned need for medical treatment or resulted in time lost from work. (Dow Chemical Co. v. Workmen's Comp. App. Bd., 67 Cal.2d 483, 493, 62 Cal.Rptr. 757, 432 P.2d 365.) In such circumstances, it was held that even though a portion of the employee's ultimate disability was shown to have been caused by specific injuries within an employment period otherwise barred by the statute of limitations, the employee was nevertheless entitled to full recovery on the theory that the specific injuries merged with the ultimate cumulative injury. ...
To continue reading
Request your trial
-
Applied Materials v. Workers' Comp. Appeals Bd.
...subject to later apportionment between the responsible employers or carriers. ( § 3208.2 ; Zenith Insurance Co. v. Workers' Comp. Appeals Bd. (1981) 124 Cal.App.3d 176, 189, 176 Cal.Rptr. 920.) The employer or its insurer has the burden of proof on apportionment because it is the employer w......
-
Clark v. Workers' Comp. Appeals Bd.
...the employee's claim for disability compensation. (Id. at p. 944, 193 Cal.Rptr. 12; also see Zenith Insurance Co. v. Workers' Comp. Appeals Bd. (1981) 124 Cal.App.3d 176, 187, 176 Cal.Rptr. 920.) Based on the holdings in Berkebile and Bianco, we conclude the death benefits application was n......
-
Buhlert Trucking v. Workers' Comp. Appeals Bd.
...statute of limitations." (Id., at pp. 501-502, fn. 5, 138 Cal.Rptr. 696, 564 P.2d 848; see also Zenith Insurance Co. v. Workers' Comp. Appeals Bd. (1981) 124 Cal.App.3d 176, 176 Cal.Rptr. 920.) There is nothing in this legislation which precludes an employee from recovery of medical expense......
-
Applied Materials v. Workers' Comp. Appeals Bd.
...is permitted, subject to later apportionment between the responsible employers or carriers. (§ 3208.2; ZenithInsurance Co. v. Workers' Comp. Appeals Bd. (1981) 124 Cal.App.3d 176, 189.) The employer or its insurer has the burden of proof on apportionment because it is the employer who benef......
-
To Merge or Not to Merge: That Is the Question
...benefits, the cost of medical treatment, and any death benefit. In Zenith Ins. Co. v. Workers' Comp. Appeals Bd. (Thweatt) (1981) 124 Cal.App.3d 176, the Court of Appeal held that "apportionment" as used in Labor Code section 3208.2 refers to apportionment of liability between carriers and ......