LUMBERMEN MUT CASUALTY CO v. INDUSTRIAL ACCIDENT COMMISSION

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District Court of Appeal, Second District, Division 2, California.

LUMBERMEN'S MUT. CASUALTY CO. et al. v. INDUSTRIAL ACCIDENT COMMISSION et al.

Civ. 15223.

Decided: May 03, 1946

J. L. Kearney, Herbert S. McCartney, and Howard J. Scott, all of Los Angeles, for petitioners. R. C. McKellips, of San Francisco, and Edward A. Sarkisian and John A. Rowe, Jr., both of Los Angeles, for Industrial Accident Commission.

Joseph Cacozza obtained an award from respondent commission for $30 weekly payments to be made by Guy F. Atkinson Company. Petitioners seek an annulment of such award on the grounds (1) that the evidence does not support the finding that applicant's injury arose out of and occurred in the course of his employment, (2) and that petitioners were denied due process of law in several designated respects. Inasmuch as the award must be annulled upon the first ground an enlarged statement of the second point will not be necessary.

Cacozza had worked for respondent Atkinson Company in 1943 and 1944, first as a carpenter and then after November 6, 1944, at lighter work as a derrick operator until February 7, 1945. On that day he arrived at his home before 6 o'clock, ate his dinner, read his paper, listened to his radio and retired at 10:30. Finding himself dizzy on awaking at 4 a. m. he returned to his bed and slept until he was awakened by his alarm at 6 o'clock when he discovered that his right side, leg and arm were numb. He exhibited no symptoms except ‘generalized feeling of tiredness' which had attended him for some time prior to his disability. Having been advised by his physicians that he had suffered a stroke of apoplexy and that it had been brought on by excessive overwork and long hours, he instituted this proceeding for compensation. The referee who heard the matter made a finding in statutory language that Cacozza had ‘sustained injury arising out of and occurring in the course of his employment, consisting of cerebral apoplexy’; and awarded him compensation payable weekly during the continuance of his disability. In his ‘Report of Referee’ he recited that applicant was in his fifty-seventh year at the time of his stroke; that he ‘sat down at his work and worked the levers and brakes with his hands and feet’; that the hours with the employer were very long; that he worked from 8 o'clock a. m. for ten to twenty hours a day; frequently worked until 2 or 3 o'clock in the morning; had often asked for relief without success. Notwithstanding the reviewing referee's recommendation that a rehearing be granted on the ground ‘that applicant has not proved his case,’ the commission denied the rehearing and approved of the award.

For a workman to be entitled to an award by the commission he must show that he sustained his injury arising out of and during the course of his employment, and that such injury proximately caused the disability of which he complains. Labor Code, § 3600. And if the injury is by disease, the relation of cause and effect between the employment and the disease must be established and ‘it must affirmatively appear that there exists a reasonable probability that the employee contracted the disease because of his employment.’ Bethlehem Steel Co. v. Industrial Accident Commission, 21 Cal.2d 742, 744, 135 P.2d 153, 154. The burden rests upon the applicant to establish that his disability is due to an injury received in the course of his employment. Labor Code, § 5705.

No untoward incident occurred in the life of applicant on his last day of work for his employer. He had worked but ten hours. He had on that day sat at his work, as he did on all other days as derrick operator, and had manipulated his machine only when loading rock onto barges. While the hearing referee states that applicant would commence work at 8 a. m. and ‘frequently’ work until 2 or 3 o'clock next morning, the payroll statement contained the notation that ‘this record shows the hours of employment but does not reflect the actual hours of work because this employee, in operating the derrick, was necessarily on duty but actually working only when loading of barges was in progress.’

But whether applicant worked long hours is in itself immaterial. The question is whether his employment proximately caused his disability. This could have been determined only by medical experts. William Simpson Construction Co. v. Industrial Accident Commission, 74 Cal.App. 239, 243, 240 P. 58; Pacific Employers Insurance Co. v. Industrial Accident Commission, 47 Cal.App.2d 494, 500, 118 P.2d 334. See Labor Code, § 5703. Such proof is wholly wanting.

Applicant presented no satisfactory evidence that his pathological condition was caused by his working long hours. Not only did the hearing referee indicate that he based his conclusion upon the testimony of the applicant but he made no reference to the reports of the three physicians. Had he relied upon the statements of Dr. Garnett he could have made no award since that physician's report declared that applicant's ‘generalized and cerebrovascular arteriosclerosis and arterial hypertension have been present for months and probably years. This is based upon the present state of the sclerosis of the palpable and visible arteries. This process in the main is one of degeneration and senescence and is not increased or aggravated by occupation, except where unusual lifting or straining temporarily raises the blood pressure above the usual levels. * * * The man's lesion is a thrombus formation in an already damaged artery within the brain * * * facilitated by the decreased blood flow which occurs when the patient is at rest * * * this accident occurred in spite of rather than because of his occupation.’ Had he relied only upon the testimony of the physicians employed by applicant, towit, Drs. Daley and Petter, he would have been guided by no expert evidence at all. Dr. Daley merely observed that the long hours caused applicant ‘to become tense and fatigued,’ but did not venture to opine that such tenseness and fatigue might have caused the disability. Dr. Petter stated that the ‘condition was brought about by excessive overwork and long hours with no relief.’ Neither of the two gave any reason for his opinion, or showed qualification, or that he had made roentgen ray or fluoroscopic examinations. Neither disclosed a familiarity with the history of the case. Neither indicated any extent to which he had conducted his examination or gave any reason why there was a causal connection between Cacozza's occupation and the cerebral vascular thrombosis which disabled him. Neither of them explained why the occupational exertions of this man could have caused the formation of the ‘intra-vascular clot’ nor did they dispute Dr. Garnett's diagnosis. No reasons at all having been assigned for their opinions by Cacozza's physicians such opinions are without value for in opinion is worth no more than the reasons upon which it is based. This leaves the award without the indispensable medical opinion support.

But respondents contend that the opinions of Drs. Daley and Petter are the substantial evidence required rather than evidentiary matter they may have considered. Citing Young v. Bates Valve Bag Corporation, 52 Cal.App.2d 86, 97, 125 P.2d 840; Thomason v. Hethcock, 7 Cal.App.2d 634, 640, 46 P.2d 832. These were actions tried in courts of law. In the Young case the opinion of the expert electrician was based upon the facts contained in a hypothetical question and was subjected to cross questioning and redirect examination. The court refused to strike his opinion merely because it was based partially on the rules of the Industrial Accident Commission. Because other reasons were given and because it was based upon ‘the facts of the case’ the motion was denied. In the Thomason case the opinion of the physician had been received without objection.

The rules of the Commission allow a medical expert to present his evidence in the form of a written report. However, one rule requires that ‘The physician's report should include the history of injury, the patient's complaints, the sources of all facts set forth in the history and complaints, that is, whether furnished by the patient or by some other person, the findings on examination, the opinion and the reasons for such opinion. Such reasons should be set forth fully and in detail.’ Rules of Practice and Procedure, Industrial Accident Commission, § 2, Rule 11.

Compliance not having been made with such rule by the applicant, the reports of his medical experts are unavailing. No rule or statute is suggested that requires a defendant in any judicial or departmental proceeding to cross-examine adversary witnesses. That is a privilege to which resort is made by an opposing party only for the purpose of eliciting the whole truth or of demonstrating the unwisdom of the witness, his obtuseness, his inaccuracy of observation or memory, the error of his reasoning or other vice of his testimony. No unfavorable inference can arise from a party's failure to cross-examine a hostile witness. Western & A. R. Co. v. Morrison, 102 Ga. 319, 29 S.E. 104, 40 L.R.A. 84, 66 Am.St.Rep. 173. Having failed to present medical reports as required by the rules respondents may not now supply the deficiencies of Cacozza's evidence by complaining of petitioners' neglect to cross-examine before the hearing referee.

The award is annulled.

MOORE, Presiding Justice.

McCOMB and WILSON, JJ., concur.

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