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

REYNOLDS ELECTRICAL & ENGINEERING COMPANY, Inc., a corporation, Petitioner, v. INDUSTRIAL ACCIDENT COMMISSION of the State of California and Furl M. Buckner, Respondents.

Civ. 29879.

Decided: March 25, 1966

Herlihy & Herlihy, Los Angeles, for petitioner. Everett A. Corten, San Francisco, and Edward A. Sarkisian, Los Angeles, for respondent Commission. Jack R. Berger, Los Angeles, for respondent Buckner.

Review of a decision of the Industrial Accident Commission.

The petitioner Reynolds Electrical & Engineering Company, Inc., hereinafter referred to as Reynolds, is a corporation organized and existing under the laws of the State of Texas. It had qualified to do business in the State of California and had designated C. T. Corporation System as its agent in the State of California for the service of process. As of the date of the claimed injury of its employee, Reynolds was insured for liability under the workmen's compensation law of Nevada but was uninsured for liability under the workmen's compensation law of California.

On November 30, 1962, the employee of Reynolds, Burl M. Buckner, filed an application for hearing with the California Commission wherein he alleged that he had suffered an injury to his heart during the period from January 15, 1962 to and including July 9, 1962 in the course and scope of his employment as a structural iron worker with Reynolds on the job site at Ely, Nevada. No personal service of process was initially made on Reynolds and a hearing was had before the commission on July 17, 1963 without an appearance by or on behalf of Reynolds. On September 24, 1963 the commission issued its findings and award. These findings and the award were annulled and set aside as a result of a motion to quash the service of the application.

Thereafter proper service of the application was effected and hearing thereon was had. On June 28, 1965 the commission issued its findings and award holding that Reynolds was liable for benefits under the workmen's compensation law of California by reason of the fact that, although the injury occurred in Nevada, the contract of employment was consummated in California. Additionally, it was found that Buckner had sustained permanent disability in the amount of 73 per cent as a result of his injury in Nevada and that Reynolds was not entitled to apportionment of such disability to a preexisting condition relative to the present heart condition. There was also imposed against Reynolds a monetary penalty of 10 per cent of all compensation benefits, both past and future, upon the grounds that it had unreasonably refused to provide compensation benefits under the workmen's compensation law of California during the pendency of the proceedings before the California Commission.

Both Reynolds and Buckner petitioned for reconsideration. The petition for reconsideration on the part of Reynolds was denied and the petition for reconsideration of Buckner was granted. On reconsideration the commission made minor changes in favor of Buckner with respect to the award relating to the reimbursement for medicallegal expense and for self procured medical treatment.

Reynolds' attack upon the award is (1) that the evidence is insufficient to sustain the finding that the contract of employment was entered into in the State of California; (2) that the evidence does not justify the finding that Reynolds should be assessed a 10 per cent penalty for unreasonable delay in the furnishing of compensation benefits and (3) that the evidence does not justify the finding that the industrial injury resulted in a permanent disability without apportionment of a part of such disability to known preexisting factors contributing to the overall present and future disability of the applicant.

The evidence before the commission as it relates to the contract of employment is in substance as follows. Buckner, the applicant, was a structural steel worker whose residence was situated in Lancaster, California. He had been previously employed by Reynolds during the year 1952 and some time in 1955. Before the start of his work in January 1962, Wilfred Bayer, the assistant structural superintendent of Reynolds, whom he had known for approximately 20 years, called Buckner on the telephone and asked him if he wanted to go to work and Buckner responded in the affirmative. Thereupon Bayer stated, ‘[C]ome on.’ Bayer was in Mercury, Nevada, and Buckner was at his home in Lancaster at the time of this conversation. At this time, Reynolds was in need of structural steel workers and requisitioned, through the union hiring hall at Los Angeles, approximately 20 men including Buckner. This requisition was approved by E. J. Hutchins, structural superintendent of Reynolds. Bayer had suggested certain names of iron workers, including Buckner, to Hutchins, and had called the iron workers union in Los Angeles to have proper forms drawn up for the referral of Buckner to the work site at Ely, Nevada. Bayer had done this personally so that the only thing Buckner had to do was go by the union and pick up a referral slip. Bayer testified in substance that it is common practice to bring workers from out of state to work at the Nevada work site. That these men come to the work site before working and fill out various payroll as well as security forms in the personnel office and then wait until they are referred to the job site. That during this time they are paid subsistence allowance as well as travel expenses to Nevada and, if they cannot get security clearance, they are terminated and returned home and are paid their fare home. That the personnel department does not interview the man as to his qualifications to do the job; that the only thing they do is take payroll information and security clearance information so that security clearance can be obtained for the worker. Buckner testified in substance that upon his arrival at the work site he filled out the forms in the personnel office regarding security checks and payroll information, and went to work; that there had been no interview regarding his qualifications for the job.

The foregoing circumstances furnish a sufficient basis to support the commission's finding that there was an offer of employment made by Bayer, who was then in Nevada, to Buckner, who was then in California, and that the acceptance of that offer was made by Buckner in California. The evidence is sufficient to support the conclusion that when Buckner left his home in Lancaster, California, to go to the job site at Ely, Nevada, it was not to find a job or obtain one if he could but that he had a job and was going to it. The contract of employment having been consummated in California, the commission had jurisdiction to hear and determine the application. (Lab.Code, § 5305; Commercial Cas. Ins. Co. v. Industrial Acc. Comm., 110 Cal.App.2d 83, 242 P.2d 13; Chicago Bridge etc. Co. v. Industrial Acc. Comm., 226 Cal.App.2d 309, 38 Cal.Rptr. 57; Globe Cotton Oil Mills v. Industrial Acc. Comm., 64 Cal.App. 307, 221 P. 658; Friedman Bag Co., Inc. v. Shrier, 194 Cal.App.2d 561, 565, 15 Cal.Rptr. 38.

As to whether the commission was justified in assessing a 10 per cent penalty on the award, the law provides as follows: ‘When payment of compensation has been unreasonably delayed or refused, either prior to or subsequent to the issuance of an award, the full amount of the order, decision or award shall be increased by 10 per cent.’ (Lab.Code, § 5814.) The evidence relating to the applicant's injury and the furnishing of workmen's compensation benefits shows in substance that some time in June 1962, on the job site at Ely, Nevada, while the applicant was working on one of the towers approximately 80 feet from the ground, he experienced pain in his chest beginning at the left breast bone. This pain lasted 10 to 15 minutes and was of such severity that he had to lie down on one of the beams on which he was working, until the pain passed. He did not report this incident to his supervisor. Immediately prior to this incident, he and his fellow employees had been engaged in pushing large heavy steel beams into place. He went to work as usual on July 9, 1962 and shortly after lunch, while he was engaged with others in loading pads of lumber on a truck, he experienced a sharp pain in the left chest area. A short time later when he went to the tower to continue working he again felt pain in his chest. At this time his foreman observed that something was wrong, whereupon the applicant told him about the chest pain. The applicant was then placed in a truck and driven to the first aid area. From the first aid area he was taken to the company dispensary in Mercury, Nevada. The doctor at the dispensary gave the applicant some nitroglycerine pills to take and recommended that he see a Dr. Miller at the Sunrise Hospital in Las Vegas. He was examined by Dr. Miller and went home in Nevada for the night but returned the following morning because of his chest pain and was then hospitalized and treated by Dr. Miller. Upon discharge, he was told to return to his home in Lancaster, California, and to see a doctor there immediately upon his return. He was not given the name of a doctor to see. Upon his return home to Lancaster the applicant saw a Dr. Busby who treated him and who has continued to treat him for his heart condition. Medical and hospital treatment in Nevada after the applicant left the company dispensary was self procured as was his treatment after having returned to California.

The employer was charged with knowledge of the circumstances under which the contract of employment was made. The employer knew that the applicant had suffered a disabling injury on July 9, 1962, while he was working in the course and scope of his employment. The employer also knew some time prior to the filing of its motion to quash service of process in the proceeding before the California commission, that its employee was seeking workmen's compensation benefits under the workmen's compensation law of California based upon an injury claimed to have been sustained in the course and scope of his employment while on the job site at Ely, Nevada. The commission order granting the motion to quash service of process was made on October 11, 1963. No workmen's compensation benefits were paid by the employer and the employee made application for and received unemployment benefits from the State of California in the sum of $2,060. The commission, under the foregoing circumstances, was justified in finding that the payment to the applicant of workmen's compensation benefits had been unreasonably delayed or refused. (Argonaut Ins. Co. v. Industrial Acc. Comm., 210 Cal.App.2d 267, 26 Cal.Rptr. 470.)

On the question of apportionment, the commission had before it the testimony of the applicant wherein he stated that prior to the incidents in June and July 1962 he had no complaints with reference to his chest or heart. This history was before the medical expert who testified before the commission. The commission also had before it the report and testimony of Dr. Kritzer, an independent medical examiner appointed by the commission. Dr. Kritzer's report shows that the applicant was 53 years of age on the date of his examination on February 15, 1965. It goes into the history of the patient including a history of the accident. It gives a detailed account of the various examinations and tests which were made in aid of a diagnosis.

In Dr. Kritzer's report he states ‘I have taken a very careful history, performed a thorough physical, reviewed the entire file, received a number of things from Dr. Wasserman, as well as through the Industrial Accident Commission, and I am of the following opinion.

‘I believe that the patient either had a subendothelial myocardial infarction in the anteroseptal area or he had a marked amount of insufficiency, enough to cause death of tissue somewhere in July 9, 1962. I believe he had [premonitory] symptoms of same in June of 1962. I also believe from reviewing the electrocardiograms that there is a strong possibility that the patient had an old anteroseptal myocardial infarction as well from the absence of R waves over the right side of the chest. I certainly believe that since this infarct started while the patient was in the midst of what for him is extremely strenuous activity, even though he had been used to performing same, that this activity either caused or aggravated the infarct itself. I believe that the patient at the present time is disabled from doing the type of activity he describes. I believe that he probably could be rehabilitated to some form of semi-sedentary activity or possibly some bench work, and I think his disability should rest on the fact that he should never be permitted to pick up objects more than 30 lbs. He cannot go up on heights because if he ever has any more attacks, he may fall and kill himself. He should never be asked to lift heavy weights or work longer than an 8 hour period of time, nor should he be asked to ascend upstairs rapidly, etc. He can do sedentary work and he can probably, from his descriptions, do some type of work at a counter where he would even have to stand for a few hours, as long as he has some periods when he can sit. I think his present disability is the result of his underlying coronary arteriosclerotic heart disease as well as the attack that he had on July 9, 1962. Since the patient has an electrocardiogram which shows some evidence possibly of an old anteroseptal infarction, this would figure in his present disability. I think 50% of his present disability is due to his old coronary arteriosclerosis which is in no way connected with his work and its subsequent progression. And 50% is due to the attack on July 9, 1962 at which time had had [sic] an infarction. I think the infarct in itself if not caused certainly was tremendously contributed to by the work he did immediately prior to it.’

At the hearing Dr. Kritzer was called and was cross-examined on the content of his report. His testimony at the hearing confirmed the diagnosis and prognosis contained in his report.1

The report and the doctor's testimony point unerringly to the fact that at the time of the incidents of June and July 1962, the applicant was suffering from arteriosclerosis which had progressed to the point that it contributed 50 per cent to his present disability. The fact that Dr. Kritzer was unable to pinpoint the exact day and hour when this disease would have become disabling to the extent indicated in nowise detracts from his medical opinion. He was a disinterested medical expert called on behalf of the commission to aid it in resolving the question of the cause of applicant's disability and the contribution, if any, that the underlying arteriosclerosis with which he was afflicted, made to such disability.

The diagnosis, treatment and prognosis of arteriosclerosis are matters within the knowledge of medical doctors, and are not matters within the common knowledge of laymen, and ‘whenever the subject under consideration is one within the knowledge of experts only, and is not within the common knowledge of laymen, the expert evidence is conclusive upon the question in issue. It follows that in such cases neither the court nor the jury can disregard such evidence of experts, but, on the other hand, they are bound by such evidence, even if it is contradicted by nonexpert witnesses. The same rule would, of course, apply to a proceeding before the Industrial Accident Commission.’ (William Simpson Const. Co. v. Ind. Acc. Comm., 74 Cal.App. 239, 243, 240 P. 58, 59; Hines v. Industrial Acc. Comm., 215 Cal. 177, 187, 8 P.2d 1021; Hartford A. & I. Co. v. Indus. Acc. Comm., 140 Cal.App. 482, 486, 35 P.2d 366; Lindsay v. County of San Diego Ret. Bd., 231 Cal.App.2d 156, 160, 41 Cal.Rptr. 737.) The testimony of the medical expert which is uncontradicted and is in no way impeached or discredited, may not be arbitrarily disregarded. (Wirz v. Wirz, 96 Cal.App.2d 171, 176, 214 P.2d 839, 15 A.L.R. 2d 1129; Witkin, Cal. Evidence, § 198, p. 219; Krause v. Apodaca, 186 Cal.App.2d 413, 417, 9 Cal.Rptr. 10; Gomez v. Cecena, 15 Cal.2d 363, 366, 101 P.2d 477; Herbert v. Lankershim, 9 Cal.2d 409, 475, 71 P.2d 220.)

In the case at bench, the only evidence before the commission, relating to the heart disease with which the applicant was afflicted and the contribution which the underlying arteriosclerosis made to the applicant's disability, was found in the report and testimony of Dr. Kritzer. This evidence disclosed that 50 per cent of the applicant's disability was attributable to the progressive arteriosclerosis and 50 per cent to the industrial accident of July 1962. This evidence is in no way impeached or discredited. Under these circumstances the commission was not authorized to arbitrarily disregard it. And, where the medical testimony shows that some portion of the applicant's disability is due to his preexisting nonoccupational heart disease and a portion is due to the industrial injury, it is error to deny apportionment. (Southern Cal. Edison Co. v. Industrial Acc. Comm.,2 238 Cal.App.2d 567, 48 Cal.Rptr. 46; City of Glendale v. Industrial Acc. Comm., 153 Cal.App.2d 213, 314 P.2d 182; Bowler v. Industrial Acc. Comm., 135 Cal.App.2d 534, 539, 287 P.2d 562.)

The award is annulled and the cause is remanded to the respondent commission with directions to apportion the award in accordance with the views expressed herein.



1.  ‘THE COURT: Doctor, the apportionment that you have given in this matter, what is the exact basis for this apportionment, doctor? WITNESS: I will tell you this is a disease which is similar to the last straw breaking a camel's back. A man can have and you can see the autopsies of people who today have accidents 80% closure of a vessel of normal caliber. All of these vessels have no symptoms whatsoever. Yet we may get 95% non-disabling and asymptomatic persons. To say that the last 5% were caused by all the problems and the prior 80% caused nothing is, medically speaking, kind of really foolish to some extent. So, a man who has had an electrocardiogram with evidence of an old infarct would of necessity had to have arteriosclerosis in order to get a new infarct, who, while it is perfectly true was asymptomatic was a candidate for symptoms at any one particular time who did a piece of work that tipped him over the edge at this particular time. So far as I am concerned had he done that piece of work without having prior problems or prior arteriosclerosis he would have had no symptoms whatsoever and he would have had no infarct whatsoever. That had he done that piece of work without having possibly a more severe arteriosclerosis, without having a lesser severe arteriosclerosis not having a prior infarct, then actually knocked out part of the heart, his symptoms following the infarct would have been less than you know, at the present time would have been less then they are. It is for that reason that you must give some kind of an account to the basic underlying disease that causes this symptomatology and that is how I, and I believe the aggravation that leads to his present disability by virtue of either infarction or ischemia, whatever he had during that particular time would approximately equal about half of his present disability and that all that all the prior foundation that led to this thing would be equal to the other half. Now, that is medically speaking. I get into the problem quite frequently. I think there is something different legally but medically this is the way it is.‘THE COURT: Doctor, can you say, as a medical probability, regardless of an industrial injury, the natural progression of the atherosclerosis would lead to a part or portion of the present disability at this time? A At this time I can't say that, no, but I can tell you his chances are considerably greater after having one infarct that he is going to have another one eventually within some period of time.‘THE COURT: Now, we have a man that has present certain disabilities at this time. You placed him under certain work restrictions. In effect, the man has certain symptomatology, so you have work restrictions plus symptoms? A Yes.‘THE COURT: Can you say that regardless of the industrial injury, just due to the natural progression of his coronary artery disease and the prior old heart destruction, would the applicant have a part or portion of the present disability, which includes symptoms and work restrictions? A Yes, I think he would have some of them from just insufficiency at this time, yes.‘THE COURT: Can you give us that on an apportion basis as to the percentage? A It is difficult regarding all of these other things that I am talking about.‘THE COURT: My question is specific, regardless of the industrial injury, forget the industrial injury ever occurred. A It's a hard thing to do.‘THE COURT: I know, doctor. I realize that and counsel realizes that and the Appellate Court realizes that apportionment is a most difficult thing that we have to deal with, but someone has to do it. Now, we have a man that has some heart damage, a natural progression of an underlying disease which keeps going forward, can you say that at this time regardless of the industrial injury he will have certain symptomatology, and if so, is it related to his present disability? A Well, yes, I think the percentage is that which I put down stands. I say this, had he not had the previous coronary artery disease and the previous destruction of his heart and had a coronary occlusion I think he would have 50% less disability that he now has.‘THE COURT: Let's do it my way. First, the fact is, of course, he may have had this, is that correct, but he had no symptoms? A That's right.‘THE COURT: As far as you have indicated in your testimony that you cannot say that he would have any infarct is a medical probability on the date he had it? A No, I don't say that. Nobody could say that.‘THE COURT: He was a candidate for an infarct? A Yes.‘THE COURT: But you can't say in June or July, regardless of his industrial injury and working during that time he would have had an infarct? A Yes.‘THE COURT: But can you say that regardless of the work in June or July he would have certain symptomatology or disability at this time? A I couldn't answer that.’

FN2. Advance Report Citation: 238 A.C.A. 671..  FN2. Advance Report Citation: 238 A.C.A. 671.

FRAMPTON, Justice pro tem.* FN* Retired judge of the superior court sitting under assignment by the Chairman of the Judicial Council.

FORD and KAUS, JJ., concur.

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