WILKINSON v. WORKMEN COMPENSATION APPEALS BOARD

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

Ronald C. WILKINSON, Petitioner, v. WORKMEN'S COMPENSATION APPEALS BOARD of the State of California, et al., Respondents.

Civ. 44612.

Decided: January 08, 1975

Banks & Leviton, Inc., Eugene Leviton, Santa Ana, for petitioner. at Evans, Dalbey & Cumming, Andrew W. Barclay, Hollywood, for respondent California Cas. Indem. Exchange. Thomas J. McBirnie, San Francisco, for respondent Workmen's Compensation Appeals Bd.

On October 3, 1974, this court issued a writ of review in the above matter returnable on December 20, 1974. By this petition petitioner seeks judicial review of the opinion and decision after reconsideration of the Workmen's Compensation Appeals Board. For reasons to be stated the action of the Board must be reversed.

On August 24, 1972, Ronald C. Wilkinson filed an application with the Workmen's Compensation Appeals Board, case number 72 DOW 3455, for injuries to both knees and his back occurring June 30, 1972. On January 10, 1973, a second application was filed with the Board, case number 73 BGN 5317, for injuries to both knees occurring April 15, 1972. On April 17, 1973, an award of temporary disability was made in case 72 DOW 3455 and on the same date an award of compensation for self-procured medical was made in case 73 BGN 5317.1 Thereafter supplemental proceedings were had jointly in both cases on a permanent disability rating. The following findings and awards were made on February 20, 1974:

1. In 72 DOW 3455 ‘This injury [June 30, 1972] caused permanent disability of 15 1/4%, after apportionment, equivalent to 51.25 weeks, payable at the rate of $70.00 per week, in the total sum of $3,587.50.’

2. In 73 BGN 5317 ‘This injury [April 15, 1972] caused permanent disability of 15 1/4%, after apportionment, equivalent to 51.25 weeks, payable at the rate of $70.00 per week, in the total sum of $3,587.50.’

Petitioner concedes that the awards were made consistently with the method used by the Board and approved by the courts under Labor Code section 47502 and 4658 prior to the amendment of the latter section effective April 1, 1972, but suggests that the amendment and other considerations require a change in the traditional method of apportionment of the percentage of permanent disability in arriving at the actual dollar amount of the award. Petitioner points out that under the amended section 4658 he should be entitled to a total award of $8662.50 on a disability rating of 30 1/2 per cent or $149.50 more than the aggregate of the two 15 1/4 per cent awards, and in support thereof contends that section 4750 is not applicable.

In view of the contention being made it is unnecessary for us to consider the propriety of the percentage of permanent disability or the cumulative number of benefit weeks attributed by the Board to each of the injuries. Our decision requires simply that we determine whether the Board was correct in using the percentage of permanent disability assigned to each injury separately or should have used the total in computing the number of benefit weeks to be allowed for permanent disability.

We conclude that the Board erred in considering the percentages separately since the finding of April 17, 1973, negates the existence of any ‘previous permanent disability’ at the time of the second injury. There is no finding as to the date upon which any injury became permanent as a result of the first accident. We must therefore conclude that it was after the second accident. Therefore section 4750 has no application and that the 30 1/2 percentage of permanent disability is to be applied under section 4658.

The order of the Board is reversed and the cause is remanded for further proceedings consistent with the views expressed in this opinion.

FOOTNOTES

1.  We note that on April 17, 1973, it was expressly found in each case that applicant's condition was not yet permanent and stationary.

2.  Section 4750 provided since its amendment in 1945 as follows:‘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.'

ALLPORT, Associate Justice.

FORD, P. J., and POTTER, J., concur.

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