MERCIER v. City of Los Angeles, legally uninsured, Real Party in Interest.

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Court of Appeal, Second District, Division 1, California.

Patrick F. MERCIER, Petitioner, v. WORKMEN'S COMPENSATION APPEALS BOARD of the State of California, Respondent, and City of Los Angeles, legally uninsured, Real Party in Interest.

Civ. 43936.

Decided: May 22, 1975

Lewis & Marenstein, and Alan B. Marenstein, Los Angeles, for petitioner. Burt Pines, City Atty., John T. Neville, Asst. City Atty., and William G. Lorenzetti, Deputy City Atty., for respondent City of Los Angeles. No appearance for Workmen's Compensation Appeals Bd. Charles P. Scully, and Kathryn E. Ringgold, San Francisco, for amicus curiae, California Applicants' Attorneys Ass'n.

The petition herein for review of an order of the Compensation Appeals Board was denied by this court (without written opinion).

The petitioner sustained two industrial injuries (a back injury in May 1970 and a heart injury in August 1971) and the board had found permanent disability of 34 1/2 per cent as to the first injury, and 75 per cent as to the second injury and ordered that the 34 1/2 per cent should be deducted from the 75 per cent—thereby reducing the disability to 40 1/2 cent. By reason of the reduction the petitioner will not be entitled to receive the lifetime weekly payments he would have been entitled to receive for a permanent disability of 70 per cent.

The Supreme Court granted a hearing and issued a writ of review to be heard by that court when the proceeding was ordered on calendar. Thereafter, the Supreme Court retransferred the cause to this court for reconsideration in the light of State Compensation Ins. Fund v. Industrial Acc. Com. (Hutchinson), 59 Cal.2d 45, 27 Cal.Rptr. 702, 377 P.2d 902.

Petitioner Patrick F. Mercier, a police officer who had been employed by the City of Los Angeles since 1949, sustained an industrial injury to his back in May 1970. Upon application for Workmen's Compensation benefits, a recommended permanent disability rating was issued on September 27, 1972, for 34 1/2 per cent permanent disability based upon a restriction that he not engage in heavy lifting and repetitive bending. An award for compensation was made pursuant to the 34 1/2 per cent rating.

In August 1971 he sustained an industrial injury to his heart. Upon his application for Workmen's Compensation benefits, a recommended permanent disability rating was based, in part on the following specifications: ‘1. Heart disability and arteriosclerosis, more than slight and less than moderate. Applicant should avoid severe emotional stress. . . . Apportion out 34 1/2 per cent.’ The permanent disability rating for the subsequent injury (heart) was 75 per cent; however, because there was a rating instruction to ‘Apportion out 34 1/2 per cent’ for the prior back disability, the 34 1/2 per cent was deducted from the 75 per cent, leaving a recommended disability of 40 1/2 per cent. The permanent disability of 75 per cent would have entitled the petitioner to be paid a certain amount weekly (apparently $24) during the remainder of his life (after he has been paid the award of $8,505, payable in weekly amounts of $52.50). The deduction of the 34 1/2 per cent resulted in the petitioner's not being entitled to lifetime payments.

Section 4659 of the Labor Code provides, in part: ‘The payment of permanent disabilities . . . shall be computed and allowed as follows: . . . If 70 percent or over, 1.5 percent of the average weekly earnings for each 1 percent of disability in excess of 60 percent to be paid during the remainder of life . . ..’

Section 4750 of the Labor Code provides: ‘An employee who is suffering from a previous permanent disability or physical impairment and sustains permanent injury thereafter shall not receive from the employer compensation for the later injury in excess of the compensation allowed for such injury when considered by itself and not in conjunction with or in relation to the previous disability or impairment.

‘The employer shall not be liable for compensation to such an employee for the combined disability, but only for that portion due to the later injury as though no prior disability or impairment had existed.’

Petitioner asserts that the Workmen's Compensation Appeals Board, by subtracting the 34 1/2 per cent back-disability from the 75 per cent heart-disability (leaving a total disability of 40 1/2 per cent) deprived him of the life-pension disability benefits which he would have been entitled to receive for the heart disability alone. (He would have been entitled to the life-pension benefits because the finding as to heart disability exceeded 70 per cent [Labot Code, section 4659, supra].) He states, in effect, that it is illogical to conclude that an employee who suffers a back disability (of 34 1/2 per cent) and a heart disability (of 75 per cent) is less disabled, by reason of the two disabilities, than he would have been if he had suffered only the heart disability. It is petitioner's position that the two injuries are separate and distinct disabilities and are not overlapping.

As hereinabove stated, the first-injury rating of 34 1/2 per cent permanent disability was based upon a restriction precluding petitioner from heavy lifting and repetitive bending. The second-injury rating of 75 per cent was based on restrictions that petitioner should avoid severe emotional stress, that he should be limited to work which is between light and semi-sedentary, and that he is precluded from strenuous activities. The heart-injury restriction, that the petitioner ‘avoid severe emotional stress,’ was a limitation on petitioner's work-capacity to work which was substantially different from the limitations imposed on him regarding the back injury. It is the nature of the disability resulting from the second (heart) injury that is the principal factor for consideration in determining whether there is overlapping with the first injury.

Respondent City of Los Angeles asserts that each injury altered the petitioner's capacity to compete in the labor market, and therefore the second injury in compensable only to the extent of the alteration. Respondent city states further that the award as to the first injury (back) was based on a work restriction precluding petitioner from heavy lifting and repeated bending; and that at the time of the second injury (heart) he already had a work restriction based on the first injury—and thereby his capacity to compete in the open labor market had already been reduced substantially. Respondent city also states that the second injury caused a further decrease in petitioner's capacity to compete in the open labor marker—the second disability award having been based on a restriction limiting him to work which is between light and semi-sedentary. Respondent city also states that those restrictions were taken from the Workmen's Compensation Appeal Board's ‘Guidelines for Work Capacity,’ which state or rate permanent disability in terms of ability to perform work; that those guidelines apply to both spinal and heart disabilities; and that since the second injury caused a further reduction in work capacity, the petitioner should be compensated only for the increase.

The amicus curiae brief filed herein, in support of the petition for a writ of review, states that the first injury (back injury) related to an impairment of the petitioner's musculoskeletal system; and that the second injury (heart injury) related to an impairment of petitioner's vascular and heart function; that the pre-existing (back) disability (relating to the musculoskeletal system) was separate and distinct from the second disability (relating to vascular and heart function); that the Workmen's Compensation Appeals Board erred in making an apportionment for the pre-existing injury without taking into consideration that the pre-existing injury was an impairment of the back which was a separate disability from the second disability that was an impairment of the function of the heart and vascular system.

In the appeals board's opinion (rendered in making the award herein) it is stated that the applicant's (petitioner's) disability resulting from the second injury overlapped his pre-existing disability.

As above stated, the Supreme Court retransferred the matter of this petition for review to this court for reconsideration in the light of State Compensation Ins. Fund v. Industrial Acc. Com., 59 Cal.2d 45, 27 Cal.Rptr. 702, 377 P.2d 902. In that case the employee (Hutchinson), who had sustained a neck injury, was given a disability rating of 26 per cent by the Industrial Accident Commission; and for a subsequent lower-back injury the commission gave him a disability rating of 26 per cent. The Compensation Insurance Fund petitioned for reconsideration of the second award of 26 per cent, and contended that the award was an unwarranted pyramiding of compensation. The commission, in denying the petition, said that if separate parts of the body are injured in separate accidents, each injury must be rated separately and that the combined disability was immaterial. In that case the Supreme Court said (p. 53, 27 Cal.Rptr. p. 707, 377 P.2d p. 907): ‘[T]he disability resulting from a subsequent injury should be compensable only to the extent that it can be said that the employee's earning capacity or ability to compete has been decreased from what it was immediately prior to the second injury. The computation of this figure cannot be determined by a mechanical application of a method of apportionment based upon whether the injury occurs to the same anatomical part of the body. It must come from a consideration of the nature of the disability caused by the injury. If successive injuries produce separate and independent disabilities then each is properly rated separately without concern for the theoretical 100 per cent assigned to ‘total’ disability. . . . But if the subsequent injury, even if to a different part of the body, does not alter the earning capacity or ability to compete in the labor marker it is not compensable. And if it does alter these factors, it should be compensable only to the extent of the alteration.' In that case a rating expert had testified that if the factors upon which both awards were made were combined, the employee's combined disability would not be 52 per cent but would be something more than 26 per cent. The Supreme Court held therein that the disabilities overlapped and remanded the case to the commission for determination of the extent of the second disability.

In the present case the Workmen's Compensation Appeal Board, in rendering its opinion, cited the State Compensation Insurance Fund case, just referred to, and Truck Ins. Exch. v. Industrial Acc. Com., 235 Cal.App.2d 207, 45 Cal.Rptr. 178. In the Truck Insurance Exchange case, while an employee (Tarantino) was driving a truck, the truck overturned and he suffered an injury to his neck and low-back, and he also sustained a loss of gripping power in his right hand. He was awarded a permanent disability rating of 31 3/4 per cent. About two months later, while he was driving a truck (for another employer) he suffered a heart attack. By reason of the second injury (heart) he was awarded a permanent disability rating of 49 per cent. The Truck Insurance Exchange petitioned the Industrial Accident Commission for reconsideration of the second award on the ground that the commission erred in not making an apportionment for the first disability. In that case the Court of Appeal said (p. 209, 45 Cal.Rptr. 178) that the applicant's injuries have not entirely precluded his engaging in his calling as a truck driver; however, it has placed him in a category where he cannot drive certain types of trucks—his ability to compete has been decreased from what it was immediately prior to the second injury. It was also said therein (p. 213, 45 Cal.Rptr. p. 182) that the disabilities were not separate and independent, that is, ‘the rating for the heart disability was based upon a request [for rating] indicating that any gainful work requiring strenuous physical effort was precluded, and the rating for the prior disability was based upon a request [for rating] showing loss of rotation and flexion of the neck and back, loss of grip, and the suffering of ‘severe pain in low back upon much heavy lifting or upon continued or prolonged repetitive bending (italics added).’' The Court of Appeal remanded the case to the Industrial Accident Commission for determination of the extent of the second disability.

A distinguishing factor regarding the case just referred to and the present case is that in the present case there is a restriction that petitioner ‘avoid severe emotional stress.’

In Pacific Gas & Elec. Co. v. Ind. Acc. Com., 126 Cal.App.2d 554, 272 P.2d 818, an employee received a permanent disability award of 25 1/2 per cent arising out of an accident in which he sustained some loss of motion in his left ankle and foot, and some damage to the lower part of his leg. About nine years later he was knocked down and run over by a truck, and he sustained fractures of the pelvis and injuries to his chest, neck, and head. This second injury caused a one-inch shortening of his right leg. By reason of the second injury the Industrial Accident Commission awarded him a permanent disability rating of 77 per cent. In that case the Court of Appeal said (p. 556, 272 P. 818) that in cases such as that one, the commission must consider the later injury apart from the prior disability. The award therein of 77 per cent for the second injury was affirmed.

In Hegglin v. Workmen's Comp. App. Bd., 4 Cal.3d 162, 93 Cal.Rptr. 15, 480 P.2d 967, an employee suffered an injury to his neck and right knee; and as a result of the injuries surgical operations were performed on the knee and the back. Multiple blood transfusions were administered to the employee in connection with the back operation, and as a result of the transfusions he contracted serum hepatitis. A permanent disability award of 71 per cent was made by the appeals board. The petitioner (employee) in that case was asserting (p. 168, 93 Cal.Rptr. 15, 480 P.2d 967) that the appeals board gave him no permanent disability rating for the hepatitis condition, and that (p. 169, 93 Cal.Rptr. 15, 480 P.2d 967) the board, in requesting a disability rating, failed to describe in full the factors of disability relating to his back injury. In that case the Supreme Court said (p. 171, 93 Cal.Rptr. p. 20, 480 P.2d p. 972): ‘It is apparent from the Board's decision that it felt that the inability to lift mote than 25 pounds caused by the back injury and the fatigue caused by the hepatitis each separately precluded Hegglin from performing heavy work, but that the combination of the two conditions resulted in no greater disability. The Board concluded that the two conditions overlapped, and to the extent of the overlap only one rating should be given. Petitioner, however, contends that the two conditions do not overlap; that the back injury affects his physical strength in the performance of heavy work; whereas, the hepatitis affects his stamina.’ The Supreme Court held therein (pp. 171–172, 93 Cal.Rptr. p. 20, 480 P.2d p. 972) that the two factors of disability therein (back injury and impairment of liver function, with their respective disability consequences) were entirely separate and distinct factors of disability; that (p. 172, 93 Cal.Rptr. 15, 480 P.2d 967) the two factors impose separate limitations on petitioner's capacity to work; and (p. 172, 93 Cal.Rptr. 15, 480 P.2d 967) that since the back condition and the hepatitis condition were separate factors of disability, each of them should have been described in the request to the rating bureau. (This cited case pertains to an asserted overlap of two factors of disability which comprise part of the permanent disability suffered by petitioner as a result of a single accident; and the present case pertains to the asserted overlap of a permanent disability resulting from one accident, with a permanent disability resulting from another accident.) Irrespective of those differences, the importance of the Hegglin case with respect to the present case is that in the Hegglin case the Supreme Court ruled that two disabilities involved therein (Back and liver) were separate and distinct disabilities and were not overlapping.

As indicated in the amicus curiae brief, apparently the Appeal Board, in concluding that the second disability therein overlapped the first disability, overlooked the ruling by the Supreme Court in the Hegglin case (supra) to the effect that the back injury therein (which impaired the musculoskeletal system) was separate and distinct from the liver injury (which impaired the glandular and digestive system).

In the present case the back injury was an injury to the musculoskeletal system, and the heart injury was an injury to the vascular system—resulting in a restriction that petitioner should avoid severe emotional stress and should not engage in strenuous activities. The second (heart) disability herein was separate and distinct from the first (back) disability, and was not overlapping.

The award is annulled, and the case is remanded to the Workmen's Compensation Appeals Board for determination (in accordance with views herein expressed) of the extent of permanent disability caused by the second accident.

WOOD, Presiding Justice.

LILLIE and HANSON, JJ., concur.