STARK v. WORKERS COMPENSATION APPEALS BOARD

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

Leo George STARK, et al., Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD, Richard Fargel, and State Compensation Insurance Fund, Respondents.

Civ. 24534.

Decided: August 13, 1981

Goebel & Monaghan, Brian D. Monaghan and John Metz, San Diego, for petitioner. William Donohoe, San Francisco, for respondent Workers' Compensation Appeals Board. Arthur W. Jones, San Diego, for respondent Richard Fargel. Krimen, Brodie, Hershenson & Da Silva and Robert A. La Porta, San Francisco, for respondent State Compensation Insurance Fund.

The employee's widow, Mrs. Stark, seeks review of a decision of the Workers' Compensation Appeals Board (Board) after reconsideration which found the employee's death did not occur on the job and was not industrially caused.   She contends (1) the procedure followed after reconsideration violated Labor Code section 115 because two out of the three commissioners who heard the matter on reconsideration were different from the members who originally voted for reconsideration, and (2) substantial evidence does not support the finding of no industrial causation.

I

First, the procedural contention:  The initial order granting reconsideration, made November 4, 1980, was signed by Commissioners Glow and Martin, with Commissioner Swezey dissenting.   The opinion and decision after reconsideration, dated January 20, 1981, was signed by Commissioner Swezey, with Deputy Commissioner Younkin concurring.   There is also a statement that Commissioner Glow did not participate.   It is alleged this procedure violates Labor Code section 115.

The statute provides:

“Actions of the appeals board shall be taken by decision of a majority of the appeals board except as otherwise expressly provided.

“The chairman shall assign pending cases in which reconsideration is sought to any three members thereof for hearing, consideration and decision.   Assignments by the chairman of members to such cases shall be rotated on a case-by-case basis with the composition of the members so assigned being varied and changed to assure that there shall never be a fixed and continued composition of members.   Any such case assigned to any three members in which the finding, order, decision or award is made and filed by any two or more of such members shall be the action of the appeals board unless reconsideration is had in accordance with the provisions of Article 1 (commencing with Section 5900), Chapter 7, Part 4, Division 4 of this code.   Any case assigned to three members shall be heard and decided only by them, unless the matter has been reassigned by the chairman on a majority vote of the appeals board to the appeals board as a whole in order to achieve uniformity of decision, or in cases presenting novel issues.”  (Italics added.)

The statutory language quoted is clear.   It requires cases in which reconsideration is sought to be assigned to three members of the Board.   Such cases shall be heard and decided only by those three members, unless the matter is reassigned by the chairman upon a majority vote of the Board as a whole.   The statute makes no provision for substitution of members as here occurred.   On the other hand, the statute is also incomplete in not providing a specific remedy for such situations as the death or incapacity of a member, or the expiration of his appointed term, while the reconsideration is still pending.   It provides for reassignment to the whole Board in situations posing conflict of decision or novel issues but not for replacement of members unable to act.

Labor Code section 121 provides the chairman may appoint certain persons as deputy appeals board members, provided no more than two deputies may act as members at any one time, and no act of a deputy is valid unless concurred in by at least one regular member.   It is argued section 121 permits the substitution which took place here, even though it is not expressly authorized by section 115.  (See also § 7 giving board members the power to delegate responsibility.)

 The issue is not of constitutional dimension.   In general, an administrative agency may delegate a hearing function to a subordinate, providing the persons who ultimately adjudicate the matter consider and appraise the evidence and do not wholly rely on the judgment of the subordinate who heard the testimony.  (Morgan v. United States, 298 U.S. 468, 481, 56 S.Ct. 906, 911–912, 80 L.Ed. 1288;  Estate of Varian v. Commissioner of Internal Revenue (9th Cir. 1968) 396 F.2d 753;  Au Yi Lau v. United States Immigration and Naturalization Service (D.C. Cir. 1977) 555 F.2d 1036;  Cal. Shipbuilding Corp. v. Ind. Acc. Com., 27 Cal.2d 536, 544, 165 P.2d 669.)   The crux is whether the hearing accorded the complainant was meaningful.  (Bates v. Sponberg (6th Cir. 1976) 547 F.2d 325, 332;  Greer v. Board of Education, 47 Cal.App.3d 98, 110, 121 Cal.Rptr. 542).   It follows from this proposition a fortiori the persons deciding a case after grant of reconsideration need not be the same persons who decided to grant reconsideration.

That same result was reached after extensive discussion in an analogous case, Metropolitan Water Dist. v. Adams, 19 Cal.2d 463, 122 P.2d 257 (discussed in 6 Witkin, Cal.Procedure (2d ed. 1971) Appeal, §§ 489, 603).   In that case, seven justices of the Supreme Court, including pro tem Justice Pullen, voted to grant a hearing and rendered a 4 to 3 decision in which Justice Pullen participated in the majority.   When a petition for rehearing was filed, pro tem Justice Pullen had left the court and Justice Houser had returned.   Rehearing was granted by the three dissenters plus Justice Houser.   Upon final decision, the court rejected a challenge to this procedure, stating the event of grant of rehearing is separate and distinct from the event of deciding the appeal;  there is no requirement the acting justices be identical.   Rehearing is granted by the court acting as an agency rather than by any particular members and is an aspect of the court's inherent power to reverse, modify or correct its judgments while they remain under its control rather than a personal power of any particular justices.   The court further noted the nonapplicability of the constitutional provision requiring concurrence in a decision of four justices actually present at argument, since no oral argument is normally permitted on petitions for rehearing.   The court cited other jurisdictions in which as a matter of practice and judicial policy no rehearing is granted unless a member of the court concurring in the majority opinion desires a rehearing but went on to point out those decisions rest on no fundamental right and are not binding on California courts.  (For a discussion of the differing practice in American jurisdictions, see Louise and Degnan (1956) Rehearing in American Appellate Courts, 44 Cal.L.Rev. 627, 649–655.)

In summation, it is not constitutionally required either that the person hearing the evidence decide the matter or that the person deciding the case pass on the question of reconsideration.   Of course, there are frequently statutory or state constitutional requirements requiring some percentage of those hearing the evidence to decide the matter, which must be observed;  but these provisions are not normally construed as applying to petitions for reconsideration or rehearing.1

The matter then is strictly controlled by statute, and it has been noted when the power to rehear or reconsider is conferred on an administrative agency by statute, the agency must exercise the power in accordance with the mode the statute prescribes.  (Koehn v. State Board of Equalization, 166 Cal.App.2d 109, 113, 333 P.2d 125.)   The agency's construction of the statute is entitled to weight.  (Id., at p. 115, 333 P.2d 125.)

 Here, the governing statutes are Labor Code sections 115, 121, and 7.   The Board construes them as permitting substitution of deputies for commissioners not available to act.   We find that construction not unreasonable because there is no express statutory provision otherwise to handle situations where replacement is necessary.   We conclude section 115 precludes reassignment of cases pending after reconsideration simply at the whim of the Board;  but when reassignment becomes necessary because of such objective events as incapacity, resignation or death of a board member, then substitution of a deputy or other replacement is permitted.

 Here, the record shows no reasons for replacement of Martin and Glow.   Also there is no assignment to three participating commissioners (or deputies) as the statute requires.   The nonparticipation of Glow caused only a two-member panel to hear the matter on reconsideration, in direct violation of section 115.   Reversal is therefore necessary on this ground.

II

On the substantive issue, the facts are:  Decedent was a 67-year-old man who was an apartment manager.   He had a stroke which came on over a span of a few hours.   The issue is whether the symptoms manifested on the job while he was working on the premises or off the premises while he was shopping and running errands.   In general, the evidence showed he did a good deal of maintenance work regularly on the premises, some of it involving moving heavy washing machines so as to clean behind them.   Many of the tenants were elderly widows who were constantly asking him to do repairs for them.   He found the work tension producing, stressful, and also he had somewhat of a perfectionist's attitude, feeling pressure to do everything very carefully and to respond to all demands on him.  (For example, he carefully washed out the garbage dumpster with chlorine after every trash haul and was very fussy about keeping up with little maintenance tasks such as gardening along walkways, washing under the laundry room appliances and changing light bulbs.)   Because of the stress and burden on his time, he had decided to quit the job just about the time the stroke occurred, which was shortly before Christmas.   He was somewhat overweight at that time and suffered from hypertension but was not seeing a doctor or under any medical regime.

The stroke happened on December 21, 1976.   That day, the widow testified, she saw her husband working in the lobby in the morning sweeping floors and changing light bulbs.   He refused breakfast because he wanted to finish the job.   Later she saw him washing glass in the lobby.   Between 11:30 a. m. and 12 noon she went to the store and next saw him at 2 p. m. when she came home.   He was then in the apartment with their son John and was suffering stroke symptoms.   Shortly after her return, they called an ambulance.   Mr. Stark was then taken to Mission Bay Memorial Hospital, and he died December 30 without ever regaining consciousness.

The son testified he came to the apartment on December 21 between 10 and 10:30 a. m.   His father was washing windows.   His father wanted to go to the bank but said he had too much work to do to go at that time.   The dumpster had been cleaned that morning also.   John left and returned between 1:30 and 2 p. m. to take his father to the bank, some eight blocks away.   He found his father taking tools out of the back of his automobile.   The right side of his mouth drooped and his speech was slurred.   The son asked his father if he had something to drink.   His father said no and he went to get his checkbook to go to the bank.   It became apparent to John his father's right side was slumping and he was beginning to have difficulty moving.   John helped him into the car and drove him to the bank.   His father went in and when he re-emerged he was dragging his right leg.   At that point John became alarmed.   He helped his father into the car, returned to the complex and assisted him to the apartment where he lay down.   The wife returned, an ambulance was called, and he was taken to the hospital.

The hospital admission notes state “67 year old white male was admitted via MBMH emergency room and developed acute right sided hemiparesis while walking and shopping and being at a bank this afternoon.”   Similarly the discharge summary states “while the patient was Christmas shopping with his son ․”

There are three medical reports in evidence.   The first is by Dr. Ward Wilson Woods, neurologist.   Based on his review of the hospital records and the declarations of the widow and son, he gave the opinion the decedent's longstanding arterial hypertension was aggravated by his increased physical and psychological stress on the job as an apartment manager;  and further, the cerebral infarction which resulted in death almost certainly started while he was performing his job duties under the pressure described.   The second report, by Dr. Ralph D. Brown, the treating internist on duty at the hospital when the decedent came in, stated the patient apparently had an extremely physically strenuous day when his stroke occurred.   He also states there may be some inaccuracies in the hospital records, for it was not then perceived these details might be important.   It is probable the work load and acute stress he suffered that day significantly increased his blood pressure causing a stroke to occur when a vessel ruptured.

The third report is by internist Dr. Douglas Davidson and is the evidence on which the Board relied.   Based on the review of the medical file at the hospital, including the admission history referred to, “[t]he information that has been developed does not indicate that the decedent was performing extremely stressful or unusual physical activities on that date.   He apparently felt well enough to proceed on a trip elsewhere in the city.   The actual collapse or attack occurred while walking on the streets.”   The doctor also refers to a 10-year history of untreated hypertension.   He concludes the activity of being an apartment manager on December 21, 1976, did not bring about the stroke.

The compensation judge found decedent was not injured in the course of his employment.   The sole basis?—the hearsay entry of unknown origin in the hospital records that decedent was “Christmas shopping” when the stroke (hemiparesis) occurred.   Mrs. Stark gave a history to the admitting personnel at the hospital but her testimony as a percipient witness to her husband's activities on the morning before the stroke absolutely contradicts the hospital record.   Decedent's son, John, was also a percipient witness to the father's activities and absolutely contradicts the hearsay entry.   Also of significance is the fact that the emergency room handwritten notes do not contain any hint of a history of “Christmas shopping.”

 In a civil proceeding governed by the Evidence Code, a patient's hearsay statement reciting a history of or the cause of his condition contained in a hospital record does not satisfy the business records hearsay exception requirement that the source of such information must be such as to indicate reliability or trustworthiness.  (Jefferson, Cal.Evidence Benchbook, § 4.5, p. 91;  People v. Williams, 187 Cal.App.2d 355, 9 Cal.Rptr. 722.)   At best, such record, if foundations were laid, would be admissible to show the information on which the treating doctor acted.  (Johnson v. Aetna Life Insurance Co., 221 Cal.App.2d 247, 252, 34 Cal.Rptr. 484.)

 However, hearsay—at least evidence recognizable as hearsay—may be admitted in workers' compensation proceedings.  (State Comp. Ins. Fund v. Indus. Acc. Com., 195 Cal. 174, 231 P. 996;  Sada v. Industrial Acc. Com., 11 Cal.2d 263, 268, 78 P.2d 1127) and its hearsay character “does not necessarily stamp it with insubstantiality.”  (Cal-Nat Airways, Inc. v. Workmen's Comp. App. Bd., 268 Cal.App.2d 93, 98, fn. 5, 73 Cal.Rptr. 815.)   However, no case has been found where hearsay evidence standing alone has upheld a finding of jurisdiction, let alone a denial of jurisdiction.   As is stated in II Herlick, Calif. Workers' Comp. Law Handbook, page 616:

“In cases permitting a finding based upon a hearsay statement, there have been supporting circumstances, although the courts have not held that corroboration is necessary in compensation proceedings.”

Here to support a finding of no jurisdiction, the compensation judge relied, not upon admissible “hearsay,” but upon an entry of unknown origin, deficient in every quality of reliability or trustworthiness.

The question remains:  Does this entry constitute “substantial evidence” to support a finding of lack of jurisdiction to make an award to petitioner widow?

Our review of this question is limited to a determination of whether the Board's decision upholding the compensation judge is supported by substantial evidence in light of the entire record.  (Lab. Code, § 5952;  LeVesque v. Workmen's Comp. App. Bd., 1 Cal.3d 627, 637–640, 83 Cal.Rptr. 208, 463 P.2d 432.)  Mendoza v. Workers' Comp. Appeals Bd., 54 Cal.App.3d 820, 127 Cal.Rptr. 173, makes this enlightening observation:

“The substantial evidence test is not a vehicle for this court to superimpose its judgment upon that of the Board.   Nor does it permit this court to accept ‘any’ evidence or ‘some’ evidence as a basis for the Board's decision.   The Supreme Court expressly disapproved such departures from the proper scope of judicial review.  [Citation.]  Relevant facts which rebut or explain the supportive evidence must be taken into account [citations].   It is the reviewing court's duty to determine from the whole record whether the contradicting and conflicting evidence so discredits the supportive evidence as to render it insubstantial [citation].   Thus, the need for substantial evidence and the aspect of using the whole record are two sides of the same coin.”  (Id., at p. 823, 127 Cal.Rptr. 173.)

 To be “substantial” means that such evidence must be of ponderable legal significance.   The word cannot be deemed synonymous with “any” evidence.   It must be reasonable in nature, credible and of solid value.   It must be substantial proof of the essentials which the law requires.  (People v. Bassett, 69 Cal.2d 122, 139, 70 Cal.Rptr. 193, 443 P.2d 777.)

 In reviewing the whole record before us, the first of the principal causes of distrust is the plain simple unreliability of the admitted hospital entry.   Its parentage is unknown.   Factors normally lending the quality of trustworthiness, therefore believability, to the entry are totally lacking.   Second, the facts represented are contradicted by detailed accounts from percipient witnesses.  (See Independence Indem. Co. v. Indus. Acc. Com., 2 Cal.2d 397, 410, 41 P.2d 320.)   The hospital entry stands alone.   It is not supported by a single inference that may be drawn from any other source.   (Sada v. Industrial Acc. Com., supra, 11 Cal.2d 263, 268, 269, 78 P.2d 1127.)   In short, it is uncorroborated low grade hearsay—inadmissible for the truth of the matter stated in any civil proceeding.   Its admission and use here flies in the face of the fundamental legislative policy that the Worker's Compensation Act must be liberally construed in the employee's favor.   (Lab.Code, § 3202.)   This rule of construction applies to facts as well.   (Lundberg v. Workmen's Comp. App. Bd., 69 Cal.2d 436, 71 Cal.Rptr. 684, 445 P.2d 300.)

The workers' compensation judge's finding on credibility is entitled to great weight but here substantial evidence does not support that finding.   Credibility findings should not be posited “upon circumstantial evidence, which, at best, was speculative and conjectural and which petitioner's uncontradicted testimony rebutted.”  (Garza v. Workmen's Comp. App. Bd., 3 Cal.3d 312, 319, 90 Cal.Rptr. 355, 475 P.2d 451.)

The testimony of the widow and the son at the hearing are replete with details showing the work the decedent did the day of his stroke, are remarkably consistent and are buttressed by the uncontradicted testimony in general about his regular duties.   Dr. Brown, Stark's attending physician, was made fully aware of decedent's activities on the day of injury and all of the circumstances surrounding the onset of the stroke symptoms.   His opinion (as well as Dr. Ward's) supports job causation as a medical probability.

In contrast, Dr. Davidson's conclusion as to the cause of the stroke appears to be purely speculation, not drawn from any demonstrable facts, but rather rests upon, as we have detailed, an erroneous factual assumption;  nor does the doctor explain why the likelihood of attribution to either pre-existing disease or to shopping activity is greater than that of attribution to on-the-job stress.   If we assume a proper admission of notation of the decedent's possibly having been “shopping” when the stroke happened, there is not a sufficient basis for a conclusion of no industrial causation, especially in light of the presumption in these matters favoring the employee.  (Lab.Code, § 3202.)   The value of Dr. Davidson's opinion is limited by its factual basis and “ ‘cannot rise to a higher level than its own inadequate premises.’ ”   (Turner v. Workmen's Comp. Appeals Bd., 42 Cal.App.3d 1036, 1044, 117 Cal.Rptr. 358, quoting Zemke v. Workmen's Comp. App. Bd., 68 Cal.2d 794, 801, 69 Cal.Rptr. 88, 441 P.2d 928;  see also Owings v. Industrial Acc. Com., 31 Cal.2d 689, 692, 192 P.2d 1.)   The chief value of the expert's testimony rests upon the material from which his opinion is fashioned and the reasoning by which he progresses from the materials to the conclusion.   (People v. Bassett, supra, 69 Cal.2d 122, 144, 70 Cal.Rptr. 193, 443 P.2d 777.)

We recognize the difficulty of resolving causation issues in heart attack and stroke cases.  (See, e. g., Williams (1980) Computation of Apportionment in Permanent Disability Cases Under California Workers' Compensation Law, 15 Cal.Western L.Rev. 395, 421–422.)   Here, however, where two physicians, one the treating physician, unhesitatingly attribute the stroke to work-related stress, where there is a detailed and credible description of such stress, and where the third, dissenting doctor, employed by the insurance carrier, states his factually unsupported opinion of no industrial relationship, we think substantial evidence does not support the unreasonable result of a conclusion of no industrial causation.   Whether apportionment in light of pre-existing disease may be appropriate, we do not know, but we find no support for the decision here which precludes any benefits at all.

The case is remanded to the Board for further proceedings to be heard by a three-member panel consisting of those of Commissioners Glow, Martin and Swezey who are then available, with substitutions authorized for such of those commissioners as are not available.   The Board shall consider the extent of industrial causation and compute the appropriate benefits to claimants in accordance with the principles we have stated.

I concur in the result remanding for further proceedings to be heard by the three-member panel described.   I believe any discussion of the evidence and apportionment is premature.

FOOTNOTES

1.   The provisions applying to California courts are California Constitution, article VI, sections 2 and 3 (Supreme Court and Courts of Appeal) requiring concurrence of 4, or 2 justices respectively, who were present at oral argument, to have a valid judgment.   In the Administrative Procedure Act the relevant statute is Government Code section 11521, stating if oral evidence is introduced before the agency, no member may vote unless he heard the evidence.  (See also Gov.Code, § 11517.)

STANIFORTH, Associate Justice.

BROWN, P. J., concurs.