PACIFIC EMPLOYERS INSURANCE COMPANY v. WORKMEN COMPENSATION APPEALS BOARD

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

PACIFIC EMPLOYERS INSURANCE COMPANY, a corporation, Petitioner, v. WORKMEN'S COMPENSATION APPEALS BOARD of the State of California, Subsequent Injuries Fund, and F.G. Secrist, Respondents.

Civ. 34799.

Decided: December 30, 1969

Robert E. Perkins, Jr., Los Angeles, for petitioner. Everett A. Corten and Richard E. Ryan, San Francisco, for respondent Workmen's Compensation Appeals Bd. Thomas C. Lynch, Atty. Gen., and Jerold A. Prod, Deputy Atty. Gen., for respondent Subsequent Injuries Fund. No appearance for respondent F. G. Secrist.

Respondent F. G. Secrist, born March 20, 1927, was employed on August 17, 1964 as a construction carpenter by Jackson Bros., petitioner's insured, when he fell approximately fifteen to twenty feet from a ladder to the ground.   As a result of the fall, he sustained severe injuries to both heels and ankles.

Prior to the 1964 injury, Secrist had suffered two previous injuries.   In 1943, when he was sixteen years of age, he was involved in an elevator accident and lost the great toe and a portion of the second toe of each foot.   In 1962 Secrist suffered a head injury which caused him to be subject to dizziness and blackouts, but he was able to control these problems by daily medication.

Despite these handicaps, Secrist had performed all the duties of a carpenter over the years without difficulties and without wearing special shoes.   The medical examiners agree that he now has permanent disability in the lower extremities which necessitates the use of ankle braces and a cane and limits him to sedentary work.

Secrist filed claims for permanent disability indemnity against petitioner and the Subsequent Injuries Fund.   The referee found that Secrist was entitled to an award against petitioner for permanent disability of 70 percent, after apportionment, and was entitled to an award against the fund based upon a combination of all disabilities which totaled 91 1/414 percent permanent disability.   In her opinion on decision, the referee stated:  “It is the opinion of the referee that his rehabilitation from the toe amputations was as complete as it could be short of recovering his toes.   For that reason, of the 80% permanent disability, 70% is apportioned to this injury, and 10% to the prior amputations.”

Both the petitioner and the fund petitioned for reconsideration, and their petitions were granted.   Petitioner objected to the finding of rehabilitation, contending that the 70 percent permanent disability was excessive and that the referee should have apportioned more of Secrist's disability to his 1943 toe amputations.   The fund contended that the referee had apportioned too much of the disability to the 1943 toe amputations, thereby compounding the liability of the fund without allowing any deduction for Secrist's subsequent, and virtually complete, rehabilitation.

Upon reconsideration, the appeals board referred Secrist to the medical bureau for examination.   Thereafter, it prepared new findings of the factors of permanent disability in which it detailed specific objective and subjective factors of disability relating to the heels and ankles only as outlined by the medical examiner.   It also included the general factor of necessity for use of ankle braces and a cane.   The 1964 ankle-heel injury was assigned the recommended rating of 86 percent.

In a separate request for rating directed to the rating bureau, the board repeated the factors of permanent disability relating to the heels and ankles and added factors relating to the head disability and loss of the toes.   It described the toe disabilities in detail by specifying the exact points of amputation, the particular degree of limited motion in particular joints, and a 75 percent limitation of motion in the remaining toes of the right foot, indicating that the heel and ankle disabilities were subsequent to the toe and head disabilities.   The recommended rating was 93 1/414 percent.   All that can be determined from the record as to the method of rating is contained in the rating report.   It reflects that the rating specialist added 61, 25, and 4 1/414 to obtain a figure of 90 1/414 and, by use of the table for rating multiple disabilities, combined this total with 15 1/212 to obtain the final recommended rating of 93 1/414 percent.

Awards issued accordingly against petitioner for permanent disability rated at 86 percent and against the fund for the difference between 86 percent and 93 1/414 percent.

 The fund, having obtained a more favorable decision, has not sought review.   However, since under the provisions of Labor Code, section 4751 the award against it necessarily stands on the findings and award against petitioner, an award against the fund cannot be final until determination of the claim for the subsequent injury.  (Cf. Marsh v. Workmen's Compensation Appeals Bd., 257 Cal.App.2d 574, 579–580, 65 Cal.Rptr. 69.)

In its petition for review petitioner renews the contentions urged below, contending that the uncontradicted medical evidence compels a finding that Secrist is limited to sedentary work as a result of the successive injuries to his feet;  that there can be no rehabilitation where there is loss of a member;  and that therefore its liability should have been determined by deduction of the rating attributable to loss of the toes from the overall disability rating.

 The basic preliminary question in this case, as in all cases of successive injuries, is whether the disability caused by the subsequent injury is separate and independent from any prior disability or, when added to the prior disability, effects a combined disability which rates either higher or lower than the total of the separate factors.1  Here the appeals board has in effect, determined that bilateral disabilities of the heels and ankles are separate and independent from pre-existing bilateral disabilities of the toes.   We find it difficult to accept the proposition that a heel and ankle disability could be separate and independent from a pre-existing toe disability of the same foot or that a subsequent disability of heel and ankle of one foot could be separate and independent from pre-existing toe disability of the opposite foot.   To rate separate is to ignore any effect of the combined disability on the whole extremity or on the whole man.

In order to determine the propriety of the action of the appeals board in light of the provisions and purposes of the subsequent injuries legislation (Labor Code § 4750 et seq.) and case law, we must examine the opinion of the board.   In reference to the contentions of petitioner, the board simply states that it relied upon the opinion of the medical examiner in finding the factors of disability and on the recommendations of the rating specialist in making the rating.   In reference to the contention of the fund, the board states that from the description of disabilities attributable to both feet prior and subsequent to the 1964 injury “it appears that applicant has a permanent disability of 90 1/414 percent, indicating that the permanent disability rating specialist added 4 1/414 percent for the condition of applicant's feet as it preexisted the within injury.”

 The method used by the appeals board in describing the factors of disability makes it impossible to determine whether there is any overlapping disability between the factors described as attributable to the 1964 injury and the factors described as attributable to the 1943 injury.   In determining the liability of the petitioner, the board did not submit any factors of disability attributable to the initial foot injury to the rating expert for rating;  it submitted them only to obtain the composite rating of all disability in order to determine the extent of the award against the fund.   The rating specialist rates only as instructed and has no discretion to determine the question of overlapping disabilities on his own.   Furthermore, even if it were reasonable to assume that the board did determine the question of overlap, the opinion of the board fails to comply with Labor Code, section 5908.5 which requires that the board state the evidence relied upon and the reasons for its decision.   The purpose of the requirement is to assist the reviewing court to ascertain the principles relied upon, to help the appeals board avoid careless or arbitrary action, and to make the right to review or of seeking review more meaningful.  (Evans v. Workmen's Compensation Appeals Bd., 68 Cal.2d 753, 68 Cal.Rptr. 825, 441 P.2d 633.)

 The board's failure to comply with Labor Code, section 5908.5 is not cured by the extended discussion of reasons for the board's decision in the answer filed by the board's attorneys to the petition for review.  (B–L Ranch, Inc. v. Workmen's Compensation Appeals Bd., 266 Cal.App.2d 192, 73 Cal.Rptr. 124.)

 Petitioner met the burden of producing evidence of pre-existing disability in the feet.   Its contention on reconsideration was that the referee had not apportioned a sufficient percentage to the preexisting foot disability.   After granting reconsideration and receiving a new medical opinion, the board evaded the apportionment issue.   Petitioner was entitled to have that issue heard and determined in the light of the board's redetermination of the factors of disability.

For the foregoing reasons the findings and awards against petitioner and the Subsequent Injuries Fund are annulled.   The matter is remanded to the appeals board for further proceedings consistent with this opinion.

FOOTNOTES

FOOTNOTE.  

1.   For an excellent discussion of this problem, see 53 California Law Review 279, et seq.

FEINERMAN,* Associate Justice Pro Tem. FN* Assigned by Chairman of the Judicial Council.

COBEY, Acting P.J., and ALLPORT, J., concur.