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Court of Appeal, Fourth District, Division 2, California.

Carol A. MAHER, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD of the State of California, Respondent. SAN CLEMENTE GENERAL HOSPITAL;  et al., Real Parties in Interest.

Civ. 27621.

Decided: July 19, 1982

Byhower & Petherbridge Inc. and Merle C. Rabine, Santa Ana, for petitioner. Zonni, Ginocchio & Taylor and Leonard J. Silberman, Santa Ana, for real parties in interest San Clemente General Hospital and Insurance Co. of North America. Krimen, Brodie, Hershenson & Da Silva and Robert A. La Porta, San Francisco, for real party in interest State Compensation Ins. Fund. No appearance for respondent.


The WCAB trial judge (WCJ) found after hearing that Carol A. Maher (the applicant) did not sustain injury arising out of and in the course of her employment.   The applicant's petition for reconsideration was denied by the Workers' Compensation Appeals Board (the Board), and the applicant petitioned this court for a writ of review.   We issued the writ to review the matter.   We have concluded that the order of the Board should be affirmed.

On about April 20, 1979, the applicant applied for employment as a nurse's assistant at San Clemente General Hospital.   By law, all prospective employees of the hospital are required to undergo medical testing, including testing for tuberculosis.   The applicant was tested on April 21.   On April 23 she was informed by the hospital's director of nursing services that the tuberculosis test was positive.   The applicant was told that if she desired to continue to work at the hospital, treatment would be required and that she could obtain treatment from the public health department or from her private physician.

The applicant sought and obtained treatment at the Orange County Health Department.   She suffered a “significant adverse reaction to both ethambutol and rifampin resulting in nausea, vomiting, diarrhea, weight loss, weakness, visual disturbances and neurologic disturbances and ․ deficit.”

While undergoing treatment, the applicant continued to work at the hospital until July 24, 1979, when she was admitted to the hospital as a patient because of her symptoms.

Citing Roberts v. U. S. O. Camp Shows, Inc. (1949) 91 Cal.App.2d 884, 205 P.2d 1116, applicant contends that incapacity caused by illness from vaccination or inoculation may properly be found to have arisen out of the employment where such treatment is submitted to pursuant to the direction or for the benefit of the employer.   Applicant then argues that the rule should be the same with respect to illness resulting from treatment where such treatment is submitted to pursuant to the direction of or for the benefit of the employer.   Both the rule claimed to be stated by the Roberts case and the rule argued for are far too broad.

While few facts are set forth in the Roberts decision, it is stated that Mr. Roberts was a musician employed by the defendant U. S. O. Camp Shows, Inc. and, given the nature of the employer, one would surmise that the immunization inoculations Mr. Roberts had were required purely because of the nature of the work, including overseas travel.   Contrastingly, in the case at bench the need for treatment was not caused by the employment;  the need for treatment resulted from the applicant's wholly preexisting disease, tuberculosis.   Thus, the WCJ and the Board were correct in concluding that the applicant's disability did not arise out of and occur in the course of her employment by hospital.

We are not required in this case to determine what the rule is as to medical testing for employment (see King v. Arthur (1957) 245 N.C. 599, 96 S.E.2d 846, 849, and cases cited and discussed), because no illness or disability resulted from the tuberculosis test itself.


KAUFMAN, Associate Justice.

MORRIS, P. J., and TROTTER, J., concur.

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