SUBSEQUENT INJURIES FUND v. INDUSTRIAL ACCIDENT COMMISSION

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District Court of Appeal, Second District, Division 3, California.

SUBSEQUENT INJURIES FUND of the State of California, Petitioner, v. INDUSTRIAL ACCIDENT COMMISSION of the State of California, Charles O. Allen, Alden Equipment Company and Liberty Mutual Insurance Company, Respondents. *

Civ. 25389.

Decided: July 17, 1961

Stanley Mosk, Atty. Gen., Edward M. Belasco, Norman L. Epstein, Henry G. Ullerich, Deputy Attys. Gen., for petitioner. Everett A. Corten, San Francisco, and Edward A. Sarkisian, Los Angeles, for respondent, Industrial Accident Commission.

We have under review an order made by the respondent commission against petitioner, Subsequent Injuries Fund, hereinafter called the ‘Fund.’ The question presented: Is an employee who, prior to an industrial injury has an unknown but permanent impairment of hearing which has not interfered with his work, entitled to an award against the Fund if the loss of hearing increases the percentage of permanent disability caused by the industrial accident?

Briefly stated the facts in the present case are: In 1955 the applicant sustained a serious injury when struck by a box of bolts dropped from an upper level on his upper back, neck and head. Neither prior to that accident nor thereafter did he have any symptoms of deafness. In August of 1956, applicant fell from 20 to 30 feet and landed on his hands and head. He immediately developed symptoms of injury to his inner ear and deafness.1 After the second accident he was examined by an independent medical examiner appointed by the commission, specializing in otology, who reported to the commission that the applicant then had a 37 per cent loss of hearing in his left ear, 95 per cent loss of hearing in his right ear and a binaural loss of hearing of 44 per cent. He stated that despite the fact that the applicant stated that he had not noted any difficulty in hearing prior to his second accident, he was of the opinion that prior to said accident applicant had a hearing loss of 25 per cent in each ear (due to the previous exposure to high frequency noise levels) and that 12 per cent of the deafness he then found in the left ear and 70 per cent of the deafness in the right ear was due to the industrial accident.

Based upon this report the referee submitted to the commission's disability rating specialist, as one of the elements for rating combined permanent disability, the loss of hearing as set forth in the report of the independent medical examiner which we have heretofore noted. Upon receiving the report of the disability rating specialist the referee gave a rating of 79 per cent total disability due to injuries received in the second industrial accident and an additional 6 1/212 per cent due to the preexisting loss of hearing and awarded the applicant additional compensation and a life annuity based upon that increased percentage of total disability.

Other than the opinion expressed by the independent medical examiners and that of an otologist who examined him for the compensation insurance carrier of applicant's employer, to the same general effect, there was no evidence that applicant was deaf prior to the second accident or that if deaf it had in anywise interfered with his ability to work or to obtain employment.

Both parties rely upon the opinion of the Supreme Court in Ferguson v. Industrial Acc. Com., 50 Cal.2d 469, 326 P.2d 145. Petitioner justifiably refers to the language used by the court in the cited case wherein it is stated (in 50 Cal.2d on page 477, 326 P.2d on page 149): ‘Further, we are of the view that as indicated by the Sub-committee report mentioned in the Strauss case, as suggested by the commission in the Urquiza case [citation] and as is implicit in the legislative language, the statute contemplates that the previous condition must be actually ‘labor disabling,’ * * *' (emphasis ours) and the further language there used by the court (in 50 Cal.2d on page 479, 326 P.2d on page 150):

‘To summarize, we hold that to qualify for resort to the Subsequent Injuries Fund an employe must show that prior to the occurrence of the subsequent industrial injury he had attained the factual status of the ‘permanently partially disabled’ and that such previously incepted disability was labor disabling, * * *' (Emphasis ours.)

Based upon this language by the Supreme Court petitioner forcibly argues that inasmuch as applicant's prior deafness had not in fact disabled him, interfered with his ability to pursue employment as a steel worker or interfered with his ability to obtain employment and was not even such as to be noticed by him, his condition was not ‘labor disabling’ and therefore did not constitute grounds for an award against the Fund. With this contention we would agree were it not for the further language used by the court in the same decision (50 Cal.2d on pages 477, 478, 479, 326 P.2d on page 149): ‘the prior injury under most statutes should be one which, if industrial, would be independently capable of supporting an award. It need not, of course, be reflected in actual disability in the form of loss of earnings [as this court has already held in Smith v. Industrial Acc. Com. (1955), 44 Cal.2d 364, 367 [2, 3] [288 P.2d 64]], but if it is not, it should at least be of a kind which could ground an award of permanent partial disability. This must be so, because when the second-injury question later arises, the prior injury must be one capable of accounting separately for a portion of the ensuing disability, as distinguished from condition rendered disabling only as the result of ‘lighting up’ by the second injury.' This construction is also supported by the language of Labor Code, section 4663, hereinafter quoted.

‘The rule is, of course, that where a disability is due entirely to an industrial injury and the lighting up or aggravation of a preexisting condition by such industrial injury, the employer is required to compensate for the entire disability so caused (within the limits defined in Lab. Code, § 4663) and there is no apportionment of disability as between the industrial accident on the one hand and that due to the industrially caused aggravation of the employe's preexisting physical condition. But if the entire disability is partly due to industrial disability growing out of the immediate injury (including such industrially caused aggravation or lighting up of a preexisting dormant condition) and, in part, to a nonindustrial disability resulting from normal symptoms, effects or progress of a preexisting disease or condition, then there is an apportionment of the percentage of the disability due to the industrial cause (the injury) and the percentage due to the disease itself and its symptoms, effects and progress apart from the injury. In the language of section 4663 of the Labor Code, ‘In case of aggravation of any disease existing prior to a compensable injury [italics added], compensation shall be allowed only for the proportion of the disability due to the aggravation of such prior disease which is reasonably attributed to the injury.’ * * * It is, of course, with the apportionment prescribed by section 4750 and the contribution award contemplated by section 4751 that the parties to this litigation are directly concerned.

‘From the several applicable statutory provisions which have been referred to, it appears that both employe and employer, in relationships subject to the Workmen's Compensation Act, will be well advised to be diligent in ascertaining, at the very inception of the employment relation, all available or discoverable facts relevant to the prospective employe's physical condition. This should subserve the interest of both employe and employer. In many cases it may result in alerting the employe to possibly incipient processes of disease at a time when they can be interrupted or corrected; it may disclose conditions which will indicate that, for the personal safety or financial welfare of all concerned, certain types of activity should be avoided by some employes or that they possess peculiar aptitude for other endeavors. Certainly periodic medical examinations of all those engaged in industry would not be inimical to the interests of employer, employe, insurance carrier, or the State of California acting as the Subsequent Injuries Fund. The statutes we have discussed and the conclusions we have reached are consistent with both the interests of the parties and the objectives of the legislation.’ (Emphasis ours.)

It seems to us apparent from the language we have just quoted from the decision that our Supreme Court, despite its statement therein that the prior condition must be ‘labor disabling,’ did not intend to hold that there must be evidence that the applicant knew of his impaired physical condition or evidence that that condition in fact impaired his ability to labor or hindered him in obtaining employment, but it is only necessary that the evidence show that his prior impairment is such that when he sustained an industrial injury which permanently disables him, that that disability will be increased by reason of the prior disability, provided, of course, that the percentages of permanent disability are within the limits set forth in section 4751 of the Labor Code.2

We recognize that the conclusion we have reached is directly contrary to what was seemingly the legislative intent as reflected by the report of the Assembly Interim Committee which is quoted in 50 Cal.2d on page 476, 326 P.2d 145 of the report of the decision of the Supreme Court in Ferguson v. Industrial Acc. Com., supra, but we can come to no other conclusion in the face of the language used by that court. Having reached this conclusion, it is evident that the award here must be affirmed for the commission found, on the basis of the report of the independent medical examiner, that applicant's percentage of total disability was increased by 6 1/212 per cent due to his preexisting but unknown and nondisabling deafness.

The award is affirmed.

FOOTNOTES

1.  Prior to his second injury applicant had for 18 years been engaged as a steel worker and exposed to high frequency noises. He testified, however, that prior to the second accident he had not any difficulty in hearing, any head noises or vertigo and he made the same statements to all of the examining physicians.

2.  Under the provisions of section 4751 of the Labor Code, the industrial injury must cause 40 per cent of permanent total disability and the combined permanent disability must be equal to 70 per cent of total.

NOURSE, Justice pro tem.

SHINN, P. J., and FORD, J., concur.

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