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Court of Appeal, First District, Division 4, California.

Henry GRANADO, Petitioner, v. WORKMEN'S COMPENSATION APPEALS BOARD, Haslett Warehouse and California Casualty Indemnity Exchange, Respondents.

Civ. 24644.

Decided: January 22, 1968

Marcus, Sherbourne & Rucka, by N. Michael Rucka, Pleasant Hill, for petitioner. John W. Moore, San Francisco, for respondent, California Casualty Indemnity Exchange. Everett A. Corten, Selma Mikels, San Francisco, for respondent, Workmen's Compensation Appeals Bd.

This proceeding presents the question whether the Workmen's Compensation Appeals Board may apportion the responsibility for temporary disability benefits and medical treatment in a case where the workman suffered a non-industrial injury followed some years later by an industrial injury. We hold that under the circumstances of this case apportionment is a question of fact for determination by the Workmen's Compensation Appeals Board, and that the apportionment made by the Board is supported by substantial evidence.

Petitioner Granado is a truck driver. In 1961, as a result of a nonindustrial automobile accident, he sustained injuries which included the fracture of a cervical vertebra. There is evidence that the neck injury caused degenerative arthritis—a condition which can remain asymptomatic for a period of months or even years before causing disability. In fact, petitioner was able to work without difficulty until he sustained further injury to his neck in 1965, when he was involved in a truck accident in the course of his employment with respondent Haslett Warehouse Company.

Applicant was totally disabled following the 1965 accident for about two months; during that period he received temporary disability benefits and medical treatment at the expense of the insurer and no question of apportionment is presented in relation thereto. On June 15, 1965, applicant returned to work. At about the same time he filed an application for permanent disability benefits alleging injuries to his ‘face, head, neck, right leg.’ He continued at work until February 10, 1966, when renewed impairment attributed to neck injuries caused him to cease work. Temporary disability benefits were resumed, but these were terminated on March 31, 1966, when the insurser discovered the details of the 1961 accident.

After a hearing before a referee, an award was entered requiring the insurer again to resume paying benefits for a temporary total disability as of April 1, 1966. Upon the insurer's petition for reconsideration, the Appeals Board made a finding that the new and further period of temporary disability beginning on February 10, 1966, was attributable one-half to the old injury and one-half to the 1965 industrial injury. This implies a finding, which was made upon conflicting evidence, that there was no aggravation or ‘lighting up’ of the first injury, and that the portion of temporary disability attributed to the first injury resulted from the normal progress of that condition Accordingly, the Appeals Board apportioned renewed temporary disability benefits one-half to the new injury and one-half to the nonindustrial 1961 injury, with the result that Granado will receive from the in surer only one-half of his medical costs and one-half the temporary disability benefits he would otherwise have received.

Petitioner first attacks the sufficiency of the evidence to support the Board's determination. We have reviewed the medical evidence and find that it does afford substantial support to the Board's determination. We cannot overturn a factual determination made upon substantial evidence.

‘Whether a disability results in whole or in part from ‘the normal progress of a preexisting disease’ [citation] or represents a fully compensable lighting up or aggravation of a pre-existing condition is a question for the Commission to determine, and its award will not be annulled if there is substantial evidence to support it.' Argonaut Ins. Co. v. Industrial Acc. Com. (2962) 57 Cal.2d 589, 593, 21 Cal.Rptr. 545, 547, 371 P.2d 281, 283.

The contention upon which petitioner principally relies is one of law: that it is not permissible to apportion a temporary disability partially to an industrial injury and partially to a preexisting condition. Apportionment of permanent disability benefits among successive injuries is required by Labor Code section 4663 and has become commonplace. (See Ferguson v. Industrial Acc. Com. (1958) 50 Cal.2d 469, 326 P.2d 145; Colonial Ins. Co. v. Industrial Acc. Com. (1946) 29 Cal.2d 79, 172 P.2d 884; Tanenbaum v. Industrial Acc. Com. (1935) 4 Cal.2d 615, 617, 52 P.2d 215.) No apportionment is made between the industrial injury and the ‘lighting up’ or aggravation of any prior condition. (Southern Cal.Edison Co. v. Ind. Acc. Com. (1965) 238 Cal.App.2d 567, 48 Cal.Rptr. 46.) Apportionment of permanent disability is permissible, however, between an industrial injury (including any attendant ‘lighting up’ of a pre-existing condition) and the natural progress or symptoms of the preexisting condition.

We have found no case dealing directly with the question whether an apportionment is to be made under Labor Code section 4663, as interpreted in Tanenbaum and succeeding cases, where temporary disability benefits are in question. In Fred Gledhill Chevrolet v. Ind. Acc. Com. (1964) 62 Cal.2d 59, 63, 41 Cal.Rptr. 170, 173, 396 P.2d 586, 589, the Supreme Court pointed out that it was an open question ‘whether the apportionment provisions apply at all to compensation for temporary disability.’ But in Royal Globe Ins. Co. v. Industrial Acc. Com. (1965) 63 Cal.2d 60, 45 Cal.Rptr. 1, 403 P.2d 129, the Supreme Court held that where temporary disability is the cumulative result of successive industrial injuries an apportionment is to be made between the insurance carriers. (Also see Fibreboard Paper Products Corp. v. Industrial Acc. Com. (1965) 63 Cal.2d 65, 45 Cal.Rptr. 5, 403 P.2d 133.)

Petitioner apparently relies upon a footnote in the Royal Globe opinion, 63 Cal.2d at 62, 45 Cal.Rptr. at 3, 403 P.2d at 131, in which Mr. Justice Peters observed: ‘It should be noted that we are here involved only with apportionment between insurance carriers. There can be no apportionment as to the imjured worker. Both Royal Globe and State Fund may be held fully liable (jointly and severally) to him [citations] * * *.’ It is contended that the language just quoted amounts to a holding that no apportionment is proper in a case such as ours where the effect of an apportionment ‘as to the injured worker’ would be to deny benefits for that part of the disability which is attributable, under the evidence, to the natural consequences of a nonindustrial condition. The context in which the quoted language appears leads us to the conclusion that it was intended to apply only to the circumstances of the Royal Globe case, i. e., where all of the injuries among which the ultimate temporary disabilities are to be apportioned are industrially caused. The Royal Globe holding is that after prompt payment of benefits had been assured by an order holding ‘at least the last employer fully liable * * *’ a separate proceeding should be conducted to apportion liability among the affected insurers. (63 Cal.2d at 63, 45 Cal.Rptr. at 4, 403 P.2d at 132.)

In 2 Hanna, California Law of Employee Injuries and Workmen's Compensation (2d ed. 1967) section 13,03, subdivision 6, it is declared that ‘there is no apportionment made between the effects of injury and preexisting conditions, so far as the employ's right to temporary disability indemnity is concerned, * * *’ No authority is given for this statement, and it appears likely that the author intended to report the actual practice of the Workmen's Compensation Appeals Board (and its predecessor, the Industrial Accident Commission) rather than declare a doctrine of law. This possibility is supported by the position which the Industrial Accident Commission took in the Royal Globe case that although it may apportion temporary disability it followed a ‘general policy of disallowing apportionment of temporary disability and medical benefits.’ (63 Cal.2d 62, 45 Cal.Rptr. at 3, 403 P.2d at 131.) We must determine whether a change in that general policy or departure from it is permissible. Labor Code section 4663 provides: ‘In case of aggravation of any disease existing prior to a compensable injury, 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.’ This language, which does not distinguish between permanent disability and temporary disability, was first enacted in 1917 (1917 Cal.Stats., ch. 586, § 3) as part of a list of definitions of terms for use in any portion of the Workmen's Compensation statute. Consistent with the apparent original intention of the enactment, section 4663 now appears at the end of an article which deals with both permanent and temporary disability benefits.

No reference is made in section 4663 to either temporary or permanent disability; instead the statute refers generically to ‘a compensable injury’ and ‘the disability.’ Moreover, the placement of the section at the end of an article dealing with both types of disability compensation suggests the conclusion that the apportionment provision modifies and affects both the permanent and the temporary disability provisions.

The policy underlying section 4663 supports the same conclusion.

‘There is no doubt that section 4663 providing for apportionment of payments for disability partly caused by pre-existing disease was, as one factor at least, motivated by a legislative desire that employers should be encouraged to employ and continue in employment persons suffering from such conditions.’ (Pacific Gas & Elec. Co. v. Ind. Acc. Com. (1961) 56 Cal.2d 219, 222, 14 Cal.Rptr. 548, 549, 363 P.2d 596, 597.) This policy is equally applicable to permanent and temporary disability benefits. The employer is encouraged to hire such employees by the limitation of liability for disability compensation to those disabilities actually arising out of and caused by the employment, to the exclusion of those resulting from the normal progress of preexistent physical conditions. If either temporary or permanent disability compensation were required as a matter of law to cover preexisting conditions, this policy would be obstructed.

Petitioner seeks to distinguish between the purposes of temporary and permanent disability payments. ‘The primary element of temporary as distinguished from permanent disability is loss of wages.’ (Fred Gledhill Chevrolet v. Ind. Acc. Com., supra, 62 Cal.2d 59, 62, 41 Cal.Rptr. 170, 173, 396 P.2d 586, 589.) Petitioner argues that his preexisting arthritic condition was already reflected in the wages he was receiving at the time of the industrial accident, and thus should not reduce the amount of temporary disability (wage loss) compensation. But this argument ignores the fact that his dormant arthritic condition did not reduce his salary as a truck driver, but was found by the Board to have contributed to the second period of temporary disability.

Petitioner points out that apportionment of the medical costs for treatment of the conditions causing temporary disability may prevent him from obtaining necessary medical attention, thereby delaying his recovery and return to the labor market. But section 4663 takes no account of this factor with respect to medical benefits awarded in connection with either a permanent or a temporary disability award.

In conclusion, we point out a limitation of our holding. This is a comparatively unusual case, in which the onset of the period of temporary disability for which benefits have been awarded was delayed for a considerable period after the second injury. In the more usual case, where temporary disability immediately and continuously follows the second injury, it may well be that under the evidence it will be impossible to distinguish between some theoretical component of disability resulting from the normal progress of the preexisting condition and a ‘lighting up’ of that condition which is compensable under Tanenbaum v. Industrial Acc. Com., supra, 4 Cal.2d 615, 617, 52 P.2d 215, and the many cases which have followed the doctrine laid down in that decision. Here the Appeals Board did make that distinction and its determination is supported by substantial evidence.

The award is affirmed.

CHRISTIAN, Associate Justice.

DEVINE, P. J., and RATTIGAN, J., concur.

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