AFSHARIANI v. WORKERS COMPENSATION APPEALS BOARD

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Court of Appeal, Second District, Division 4, California.

Novart AFSHARIANI, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD;  John Chuchian and State Compensation Insurance Fund, Respondents.

B011202.

Decided: August 26, 1985

Baziak and Winters, and Ronald S. Winters, Los Angeles, for petitioner. Krimen, Brodie, Hershenson & Da Silva, and Louis Harris, San Francisco, for respondent State Compensation Ins. Fund. Richard W. Younkin, William B. Donohoe, Alvin R. Barrett, San Francisco, for respondent W.C.A.B.

Petitioner Novart Afshariani, the dependent widow of George Afshariani, deceased, seeks review of the decision after reconsideration by respondent Workers' Compensation Appeals Board rescinding the findings and award of the workers' compensation judge (WCJ) that petitioner (applicant) is entitled to benefits for the industrially caused death of George Afshariani.   We hold that the Board erred in rescinding the WCJ's findings and award.

George Afshariani had been employed as an accountant in Iran for 20 years when he immigrated to the United States in 1979.   In October 1979, he commenced employment as an accountant for defendant John Chuchian, a certified public accountant.   On September 8, 1982, while so employed, Mr. Afshariani sustained a myocardial infarction resulting in his sudden death.   His widow, applicant Novart Afshariani, seeks death benefits for herself and two of their daughters, Frieda and Irene, as total dependents under Labor Code section 4702, claiming that Mr. Afshariani's death resulted from job stress during the September 8, 1981 through September 8, 1982, period of his employment by defendant Chuchian.1

Mrs. Afshariani testified that while employed by Mr. Chuchian, her husband complained of difficulty in learning the United States accounting system and of the low pay he received from his employer.   He had no other job while employed by Chuchian.   He did not tell her everything, and hid things about his job, because she was ill and he did not want to upset her.   He did not smoke or drink, and did not suffer from hypertension or diabetes.

Mrs. Sarkissian, a daughter of Mr. Afshariani, testified that she was very close to her father and they spoke every day, including discussion of his job with Chuchian, which was the only job he had after October 1979.   He worked 8 a.m. to 6 p.m. weekdays, took work home three or four nights a week for two or three hours a night, and worked Saturdays.   The first few months he was not paid, apparently because Chuchian had “signed his permanent residence.”   He received $600 a month in 1980, and his salary was increased in steps to $1,200 a month.   He was not paid for all the overtime hours he worked.   He never had a vacation.   He complained that his workload was too much and he was not appreciated by his employer.   He found that use of his native language in connection with his workload was stressful.   He also felt that his employer treated him as though he were uneducated and inexperienced, despite his 20 years of accounting experience in Iran.   He often discussed leaving his employer, but could not do so because Chuchian had “got him his residence card.”

Mrs. Sarkissian testified further that her father had no physical problems, never complained about any problems with his heart, never took medication, had no emotional problems until the last two years prior to his death, and was not under treatment by any physician, except once or twice for the flu.   On the day of his death he only worked a half-day until noon because he was “shivering” and did not feel well.   His employer told him to go home and rest.   He went home, had a heart attack, and died.

Mrs. Sarkissian also testified that the “upheaval” in Iran was not responsible for her father's coming to this country;  his property was still intact there;  and he came to the United States to be nearer his five daughters.

Mr. Chuchian testified that decedent commenced working for him in September 1980;  however, he admitted giving decedent Christmas bonuses in 1979, 1980, and 1981.   Despite offers of a vacation, decedent continued working.   He did not know whether decedent took work home, but felt he did not because it was against company policy.   He had to give decedent a good deal of supervision because tax work is different in Iran and the United States.   Decedent was a proud man.   He showed his appreciation of decedent by salary increases every six months.   Decedent complained of family financial strain and difficulty in getting his money out of Iran, as well as being upset over the political upheaval there.

The medical evidence consisted of reports and testimony of two physicians, Drs. Alpern and Weingarten, neither of whom had opportunity to examine Mr. Afshariani prior to his death.   There was no autopsy.   The death certificate indicated myocardial infarction with coronary artery disease as the cause of death.

Based upon the death certificate and decedent's medical and job history as reported by the Afshariani family, it was Dr. Alpern's opinion that job stress caused decedent's myocardial infarction.   He stated that stress is a risk factor in causing or accelerating coronary arterial disease and decedent had experienced none of the other risk factors that could have contributed thereto.

Dr. Weingarten, reporting on behalf of defendant insurer, conceded that decedent's sudden death at age 57 probably resulted from myocardial infarction, and that stress can play a role in developing coronary artery disease.   Nevertheless, Dr. Weingarten concluded that insufficient information was available to form a medical opinion that job stress was a factor in decedent's death, since, in order to form an opinion he needed information as to decedent's “cholesterol or if he had hypertension,” as well as a stress test.   Dr. Weingarten stated further that he did not find job stress a risk factor in accounting work;  decedent did nothing irregular other than work long hours;  and the chills experienced by decedent at work on the day of his death could have been indicative of fever and were not necessarily a pre-symptom of myocardial infarction.

The WCJ found that decedent died as a result of myocardial infarction caused and accelerated by job stress.   In his report on reconsideration, the WCJ stated that he found Dr. Alpern's opinion the better reasoned and more persuasive medical opinion;  that the daughter's testimony as to job stress was reliable and credible;  and that by observing Mr. Chuchian's demeanor and the inconsistencies in his testimony, it lacked credibility.   The WCJ concluded that Dr. Weingarten's opinion lacked persuasion, especially since, if as claimed by Dr. Weingarten there had to be a medical examination and treadmill test of the decedent while still alive, then no worker who had not gone to a physician on a regular basis before death could ever be shown to have sustained industrial injury resulting in death.   Also, the WCJ found unpersuasive Dr. Weingarten's conclusion that there was no stress in accounting work.

The Board granted reconsideration;  and, in a 2–1 decision, rescinded the WCJ's findings and found that decedent did not sustain industrial injury resulting in his death.   The Board majority accepted the WCJ's credibility resolutions as to the lay witnesses and concluded that decedent was subjected to “some degree” of job stress.   However, the Board majority then briefly compared the medical opinions of Drs. Alpern and Weingarten, and concluded:  “Inasmuch as no autopsy results are available and there is otherwise so little information about the decedent's physical condition prior to his death, we find the views of Dr. Alpern to be less convincing than the opinion of Dr. Weingarten.   We therefore conclude that applicant has failed to meet her burden of proving by a preponderance of the evidence that George Afshariani's death was related to the stress of his employment.   Accordingly, we will grant reconsideration and reverse the decision of the WCJ.”

The dissenting member of the panel in effect adopted the WCJ's findings and concluded that reconsideration should be denied for the reasons stated in the WCJ's report.

Since the Board majority based its decision on asserted failure of applicant to meet her burden of proof, as well as on the Board's power to reweigh the evidence and substitute its findings for the WCJ's findings, we address the matter in both aspects.

 Applicant had the initial burden of proving by a preponderance of the evidence that Mr. Afshariani's employment contributed to his death.  (§§ 3202.5, 5705;  Wehr v. Workers' Comp. Appeals Bd. (1985) 165 Cal.App.3d 188, 193–194, 211 Cal.Rptr. 321;  California State Polytechnic University v. Workers' Comp. Appeals Bd. (1982) 127 Cal.App.3d 514, 520, 179 Cal.Rptr. 605;  Clemmens v. Workmen's Comp. App. Bd. (1968) 261 Cal.App.2d 1, 6, 68 Cal.Rptr. 804;  O'Hare v. Industrial Acc. Com. (1941) 44 Cal.App.2d 629, 633, 112 P.2d 915;  Wray v. Industrial Acc. Com. (1964) 29 Cal.Comp.Cases 248, 249;  see Haft v. Lone Palm Hotel (1970) 3 Cal.3d 756, 91 Cal.Rptr. 745, 478 P.2d 465;  Lundberg v. Workmen's Comp. App. Bd. (1968) 69 Cal.2d 436, 71 Cal.Rptr. 684, 445 P.2d 300;  Donovan v. Workers' Comp. Appeals Bd. (1982) 138 Cal.App.3d 323, 187 Cal.Rptr. 869;  1 St. Clair, Cal. Workers' Compensation Law & Practice (3d ed. 1985) § 4.4, p. 62.)   Section 3202.5, enacted by the Legislature in 1982, effective January 1, 1983, provides:  “Nothing contained in Section 3202 shall be construed as relieving a party from meeting the evidentiary burden of proof by a preponderance of the evidence.   ‘Preponderance of the evidence’ means such evidence as, when weighed with that opposed to it, has more convincing force and the greater probability of truth.   When weighing the evidence, the test is not the relative number of witnesses, but the relative convincing force of the evidence.” 2

We note, however, that in circumstances such as the instant case where the employee's sudden death is unexplained and there is scant, if any, medical evidence of his condition prior to death, the cases have held that the burden of proof necessarily shifts or eases.  (Wehr v. Workers' Comp. Appeals Bd., supra, 165 Cal.App.3d at p. 194, 211 Cal.Rptr. 321;  see Haft v. Lone Palm Hotel, supra, 3 Cal.3d 756, 91 Cal.Rptr. 745, 478 P.2d 465;  McAllister v. Workmen's Comp. App. Bd. (1968) 69 Cal.2d 408, 416, 71 Cal.Rptr. 697, 445 P.2d 313;  Donovan v. Workers' Comp. Appeals Bd., supra, 138 Cal.App.3d at p. 328, 187 Cal.Rptr. 869;  California State Polytechnic University v. Workers' Comp. Appeals Bd., supra, 127 Cal.App.3d at pp. 517, 519, 179 Cal.Rptr. 605.)

In fact, there is some support for the proposition that where the employee, by reason of sudden death, is unable to explain the circumstances of what happened to him at work, a presumption arises that the death is work connected.  (1 St. Clair, Cal. Workers' Compensation Law & Practice (3d ed. 1985) § 4.4(3), pp. 63–64, § 6.5(1), p. 130;  see Clemmens v. Workmen's Comp. App. Bd., supra, 261 Cal.App.2d 1, 68 Cal.Rptr. 804;  Foremost Dairies v. Industrial Acc. Com., supra, 237 Cal.App.2d 560, 47 Cal.Rptr. 173;  Ephraim v. Certified Sandblasting Co. (1968) 33 Cal.Comp.Cases 599;  Argonaut Insurance Co. v. Workmen's Comp. App. Bd. (1967) 32 Cal.Comp.Cases 207;  California Stevedore & Ballast Co. v. Industrial Acc. Com. (1964) 29 Cal.Comp.Cases 271.)   Admittedly, these cases are distinguishable on their facts from the case before us.

The quality of the medical evidence introduced in death cases has repeatedly been found sufficient where there is no prior medical history and the medical opinions were by nonexamining physicians.   The courts have clearly distinguished medical reports which are “pure conjecture” from those that are “speculative in a sense”;  the later having probative value, since medical reports often do not rest on scientific certainty and are, in that sense, speculative.   Even in cases not involving death of an employee, it has been held that despite the general rule that medical reports based on speculation do not constitute substantial evidence, words of conjecture in a medical report may be construed, in the proper context, as statements of medical probability;  and the trier of fact may choose the most persuasive among conflicting medical reports.  (Scott Co. v. Workers' Comp. Appeals Bd. (1983) 139 Cal.App.3d 98, 106, 188 Cal.Rptr. 537.)

 Hearsay evidence is, of course, admissible in workers' compensation cases (§ 5708) and may be weighed by the WCJ, and if determined to carry conviction, may support an award.  (See Skip Fordyce, Inc. v. Workers' Comp. Appeals Bd. (1983) 149 Cal.App.3d 915, 927, 197 Cal.Rptr. 626.) 3  Moreover, where, as here, medical evidence served to highlight the impossibility of ascertaining with absolute certainty whether decedent's job stress exposure contributed to his abrupt death, absolute certainty is not required.  (Id., at p. 929, 197 Cal.Rptr. 626;  Foremost Dairies v. Industrial Acc. Com., supra, 237 Cal.App.2d at p. 573, 47 Cal.Rptr. 173.)

 In the instant case the undisputed evidence that decedent's sudden death was caused by myocardial infarction, coupled with the credited lay testimony as to job stress and the apparent pre-death physical condition of the decedent, and the credible opinion of Dr. Alpern that job stress contributed to the myocardial infarction, constituted not only prima facie evidence sufficient to shift or ease applicant's burden of proof, but also was of more convincing force and greater probability of truth when weighed with that opposed to it.   As the WCJ and dissenting Board member correctly concluded (§ 3202.5), applicant met her burden of proof of industrial causation by a preponderance of the evidence.

Respondents' reliance on the Wehr case (supra, 165 Cal.App.3d 188, 211 Cal.Rptr. 321) as to burden of proof is misplaced.   In Wehr, applicant's dependents did not produce even “prima facie evidence that [the] death arose out of his employment”;  “there was simply no evidence of the cause of death itself, let alone evidence that the death was industrially related”;  and “[a]ll of the medical evidence ․ established that the cause of death was unknown and undetermined.”  (Id., at p. 194, 211 Cal.Rptr. 321.)   Thus, the Wehr court's determination that applicant in that case did not meet her burden of proof is not persuasive on that issue in the case before us.

Having concluded that applicant herein met her burden of proof, we turn to the question whether the Board erred in reweighing the evidence and rescinding the WCJ's finding of industrial injury.

 Where, as here, the WCJ's finding of compensable injury is supported by solid, credible evidence, it is to be accorded great weight.  (Lamb v. Workmen's Comp. Appeals Bd. (1974) 11 Cal.3d 274, 281, 113 Cal.Rptr. 162, 520 P.2d 978.)   Although the Board is empowered to resolve conflicts in the evidence, to make its own credibility determinations, and upon reconsideration to reject the WCJ's findings and enter its own findings, nevertheless the Board's decision must be supported by substantial evidence “in the light of the entire record.”  (Id., at pp. 280–281, 113 Cal.Rptr. 162, 520 P.2d 978, original emphasis;  see § 5952;  Garza v. Workmen's Comp. App. Bd. (1970) 3 Cal.3d 312, 317, 90 Cal.Rptr. 355, 475 P.2d 451.)   This standard is not met by simply isolating evidence which supports the Board and ignoring other relevant facts of record which rebut or explain that evidence.  (Ibid.)

 Moreover, in making its own findings the Board should resolve all reasonable doubts in favor of the employee in accordance with the section 3202 rule of liberal construction.  (Wehr v. Workers' Comp. Appeals Bd., supra, 165 Cal.App.3d 188, 195, 211 Cal.Rptr. 321;  see Cal. Const., art. XIV, § 4;  Lab.Code, § 3202;  Price v. Workers' Comp. Appeals Bd. (1984) 37 Cal.3d 559, 565, 209 Cal.Rptr. 674, 693 P.2d 254;  Lamb v. Workmen's Comp. Appeals Bd., supra, 11 Cal.3d at p. 280, 113 Cal.Rptr. 162, 520 P.2d 978;  Garza v. Workmen's Comp. App. Bd., supra, 3 Cal.3d at p. 317, 90 Cal.Rptr. 355, 475 P.2d 451;  Rodgers v. Workers' Comp. Appeals Bd. (1985) 168 Cal.App.3d 567, 572–573, 214 Cal.Rptr. 303.)   This rule of liberal construction is binding on the Board and this court.  (Lamb v. Workmen's Comp. Appeals Bd., supra, 11 Cal.3d at p. 280, 113 Cal.Rptr. 162, 520 P.2d 978;  Garza v. Workmen's Comp. App. Bd., supra, 3 Cal.3d at p. 317, 90 Cal.Rptr. 355, 475 P.2d 451.)

 Consequently, our function is to consider the weight or persuasiveness of all of the evidence, as contrasted with that tending to support the Board's decision, for unless we do so we have not reviewed the entire record.   (Insurance Co. of North America v. Workers' Comp. Appeals Bd. (1981) 122 Cal.App.3d 905, 910, 176 Cal.Rptr. 365;  Hulbert v. Workmen's Comp. Appeals Bd. (1975) 47 Cal.App.3d 634, 639, 121 Cal.Rptr. 239.)   We must examine all relevant facts for fairness, reasonableness and proportionality in the scheme of the workers' compensation laws (Universal City Studios, Inc. v. Workers' Comp. Appeals Bd. (1979) 99 Cal.App.3d 647, 658, 160 Cal.Rptr. 597), and where the Board's decision is not within the realm of what a reasonable trier of fact could find, the decision is not supported by substantial evidence and must be annulled.  (Insurance Co. of North America v. Workers' Comp. Appeals Bd., supra, 122 Cal.App.3d at p. 911, 176 Cal.Rptr. 365;  Universal City Studios, Inc. v. Workers' Comp. Appeals Bd., supra, 99 Cal.App.3d 647, 160 Cal.Rptr. 597;  see Skip Fordyce, Inc. v. Workers' Comp. Appeals Bd., supra, 149 Cal.App.3d at p. 921, 197 Cal.Rptr. 626.)

 The Board cannot properly disregard or ignore competent and substantial evidence on a crucial issue (Lamb v. Workmen's Comp. Appeals Bd., supra, 11 Cal.3d at p. 283, 113 Cal.Rptr. 162, 520 P.2d 978), such as an inference of industrial causation arising from a competent medical opinion (Lundberg v. Workmen's Comp. App. Bd., supra, 69 Cal.2d at p. 441, 71 Cal.Rptr. 684, 445 P.2d 300);  and the Board must accept as true the intended meaning of evidence both uncontradicted and unimpeached.  (Lamb v. Workmen's Comp. Appeals Bd., supra, 11 Cal.3d at p. 281, 113 Cal.Rptr. 162, 520 P.2d 978;  Garza v. Workmen's Comp. App. Bd., supra, 3 Cal.3d at pp. 317–318, 90 Cal.Rptr. 355, 475 P.2d 451;  LeVesque v. Workmen's Comp. App. Bd. (1970) 1 Cal.3d 627, 639, 83 Cal.Rptr. 208, 463 P.2d 432.)

 In the instant case, the relevant and considered opinion of Dr. Alpern, expressly credited by the WCJ and corroborated by the testimony of the lay witnesses which was in turn credited by both the WCJ and Board, constituted substantial evidence of industrial injury.  (Liberty Mut. Ins. Co. v. Workers' Comp. Appeals Bd. (1981) 118 Cal.App.3d 265, 275, 173 Cal.Rptr. 349;  Market Basket v. Workers' Comp. Appeals Bd. (1978) 86 Cal.App.3d 137, 144, 149 Cal.Rptr. 872.)   Dr. Weingarten's contrary opinion, upon which the Board predicated its decision rescinding the WCJ's findings, was based on erroneous factual assumptions that there was no stress in accounting work and no unusual factor here other than long work hours.   Dr. Weingarten's conclusion that he could not form an opinion because he lacked clinical information as to pre-death hypertension and cholesterol overlooked the credited lay testimony that Mr. Afshariani's pre-death physical condition appeared sound, he did not smoke, drink or suffer from hypertension or diabetes, had no physical problems, never complained of heart problems, never took medication, was not under treatment by any physician, and experienced no emotional problems until after commencing his employment with Chuchian.   Moreover, Dr. Weingarten's conclusion that he could not form a medical opinion on job stress causation without pre-death examination and stress tests of Mr. Afshariani, justified the WCJ's determination that Dr. Weingarten's opinion lacked persuasion and Dr. Alpern's opinion was better reasoned and more persuasive.   Thus, the Board's contrary finding, based solely on Dr. Weingarten's isolated opinion, was not supported by substantial evidence in light of the entire record.  (See Place v. Workmen's Comp. App. Bd. (1970) 3 Cal.3d 372, 378, 90 Cal.Rptr. 424, 475 P.2d 656.)

In view of the foregoing, we conclude that the Board's decision rescinding the WCJ's finding that Mr. Afshariani's death arose out of and in the course of his employment must be annulled.

The decision after reconsideration by respondent Workers' Compensation Appeals Board is annulled;  and the decision of the WCJ is reinstated and affirmed.

FOOTNOTES

1.   All further section references herein will be to the Labor Code unless otherwise noted.  Section 4702, at the time of Mr. Afshariani's death in 1982, provided for a death benefit of $75,000 in the case of two or more total dependents.

2.   Although Mr. Afshariani's death occurred on September 8, 1982, prior to the January 1, 1983, effective date of section 3202.5, the trial herein commenced in 1984, well after said effective date.   Hence, considering that section 3202.5 is procedural in nature, its provisions would appear to be applicable herein (see Pacific Coast Medical Enterprises v. Department of Benefit Payments (1983) 140 Cal.App.3d 197, 204–205, 189 Cal.Rptr. 558), especially since Wehr (cited hereinabove, 165 Cal.App.3d 188, 211 Cal.Rptr. 321) held section 3202.5 applicable where the employee's death occurred before, but trial of his widow's death benefit claim occurred after, the effective date of section 3202.5.   We do note, however, that Wehr (id.) did not specifically address this issue;  and further, that section 3202.5 did not codify existing law (cf. Pacific Coast Medical Enterprises, supra, 140 Cal.App.3d 197, 189 Cal.Rptr. 558), since existing law at the time of its enactment was that the section 3202 rule of liberal construction did apply to burden of proof.  (Lamb v. Workmen's Comp. Appeals Bd. (1974) 11 Cal.3d 274, 280, 113 Cal.Rptr. 162, 520 P.2d 978.)   In any event, considered solely as to the bearer of the burden of proof, irrespective of whether or not the rule of liberal construction is applicable thereto, applicant here would have the burden of proof under section 5705 which was in existence at all times pertinent herein, and provides that the burden of proof rests upon the party holding the affirmative of the issue.

3.   Section 5708 provides:  “All hearings and investigations before the appeals board or a referee are governed by this division and by the rules of practice and procedures adopted by the appeals board.   In the conduct thereof they shall not be bound by the common law or statutory rules of evidence and procedure, but may make inquiry in the manner, through oral testimony and records, which is best calculated to ascertain the substantial rights of the parties and carry out justly the spirit and provisions of this division․”

WOODS, Presiding Justice.

McCLOSKY and ARGUELLES, JJ., concur.