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

GENERAL FOUNDRY SERVICE and California Casualty Insurance Company, Petitioners, v. WORKERS' COMPENSATION APPEALS BOARD of the State of California;  William Edwin Jackson and California Employment Development Department, Respondents.


Decided: April 29, 1985

Sedgwick, Detert, Moran & Arnold, Thomas G. Rajspic, C. Gordon Taylor, Michael W. Laughlin, San Francisco, for petitioners. Samuel E. Meredith, Goshkin, Pollatsek, Meredity & Lee, Inc., San Francisco, for amicus curiae on behalf of petitioner California Workers' Compensation Institute. Steven Kazan, Victoria L. Edises, Oakland, for respondent William Edwin Jackson. No appearance for respondent Workers' Compensation Appeals Bd.

In this case we consider whether the Workers' Compensation Appeals Board may refuse to hold a progressive disability permanent and stationary solely on the ground that further deterioration is probable.

The applicant for workers' compensation benefits, William Edwin Jackson, born in 1922, worked as a molder for General Foundry Service from 1952 until April 17, 1981.   During that period, he was exposed to asbestos and silica which admittedly caused injury to his lungs.   He became aware of his lung problem in 1977 and stopped work in 1981 when advised by his doctors to avoid further exposure to dust.   He filed for workers' compensation benefits and on January 10, 1983, in an opinion after reconsideration, the board found that Jackson had been temporarily totally disabled beginning April 18, 1981, because he was unable to return to his regular occupation due, at least in part, to the industrial injury to his lungs.   The board ordered total temporary disability payments to continue indefinitely and, in its opinion, reasoned that, although the injury was permanent in the sense that it was irreversible, it was not ratable as a permanent disability because the medical reports unanimously agreed that the injury will continue to get worse.

 Petitioners and amicus curiae, California Workers' Compensation Institute, challenge the position taken by the board that temporary disability payments may continue when all medical opinion is in agreement that an employee's deteriorating condition will probably never become stationary.   They raise the specter of life-long temporary disability inconsistent with the usual application of temporary disability payments to compensate for wage loss during a healing period.   The question of whether temporary disability payments can continue where a disease has no traditional healing period is of particular importance in the instant case because temporary disability may not be apportioned between industrial and nonindustrial injuries (Granado v. Workmen's Comp. App. Bd. (1968) 69 Cal.2d 399, 402, 71 Cal.Rptr. 678, 445 P.2d 294) and because a worker only partially disabled may receive total temporary disability payments if this partial disability results in a total loss of wages.  (Pacific Employers Ins. Co. v. Industrial Acc. Com. (1959) 52 Cal.2d 417, 422, 340 P.2d 622;  see generally 1 Herlick, Cal. Workers' Compensation Law (3d ed. 1984) Partial Disability-Total Wage Loss, § 6.11, p. 145.)

 The Labor Code does not define the term “temporary disability” and, in practice, its duration depends upon the definition of the term “permanent disability.”  “In general, temporary disability indemnity is payable during the injured worker's healing period from the injury until the worker has recovered sufficiently to return to work, or until his/her condition reaches a permanent and stationary status.”  (Huston v. Workers' Comp. Appeals Bd. (1979) 95 Cal.App.3d 856, 868, 157 Cal.Rptr. 355;  see also W.M. Lyles Co. v. Workmen's Comp. App. Bd. (1969) 3 Cal.App.3d 132, 136, 82 Cal.Rptr. 891.)   This permanent stage is ordinarily considered to have been reached when further change for better or worse is not reasonably to be anticipated under usual medical standards (Sweeney v. Industrial Acc. Com. (1951) 107 Cal.App.2d 155, 159, 236 P.2d 651) or, as defined by the applicable administrative rules:  “A disability is considered permanent after the employee has reached maximum improvement or his condition has been stationary for a reasonable period of time.”  (Cal.Admin.Code, tit. 8, § 9735.)

 These explanations suffice when the injury is one that may improve with time or medical attention or one which will stabilize.   They produce a problem where, as here, the injury is one for which the prognosis is continuing deterioration over an indefinite period.   Must the employer, by an indefinite period of temporary disability, forego forever the benefits of apportionment or must the employee, by a premature permanent disability rating, risk being foreclosed from a full rating by the five year limit to reopening for further disability?  (See Lab.Code, §§ 5803, 5814.)   Neither solution to the problem of progressive disease is equitable.

A prognosis of continuing deterioration presents no obstacle to a finding of permanent disability once the disability is total.  (See, e.g., Industrial Indem. Exch. v. Ind. Acc. Com. (1949) 90 Cal.App.2d 99, 202 P.2d 850.)   At that point, a change in the employee's condition could not affect the rating.   Furthermore, there is no uncertainty in the rating to be attached to the disability—total disability cannot exceed 100 percent.   A prognosis of continuing deterioration, however, need not preclude a rating for permanent disability even if, at the time of the award, the disability is not total.

In Dahlbeck v. Industrial Acc. Com. (1955) 135 Cal.App.2d 394, 400, 287 P.2d 353, the commission denied an award for subsequent injury (Lab.Code, § 4751) because the prior injury had not become “permanent” at the time of the subsequent injury.   The court first addressed the question of whether an injury may be considered permanent despite the fact that it has not become stationary.   The court commented:  “ ‘ “Ordinarily the term permanent, when applied to a personal injury means lasting during the future life of the injured party.” ’  [Citation.]  True, this is not an exclusive definition, for a condition may be considered permanent ‘ “where further change—for better or worse—is not reasonably to be anticipated under usual medical standards.” ’   [Citation.]  But that language does not imply that a condition which is progressive and ultimately fatal cannot be permanent either as a matter of semantics or one of ascertaining actual legislative intent.   The application of the commission's rule would preclude consideration of any such progressive disability.   No reason other than easy practical application of the law suggests itself in support of the view that one whose occupational disease has been arrested may receive the benefit of a subsequent injury award when one who is fatally stricken as a result of industrial injury (e.g., silicosis, asbestosis, radiation toxemia, carbon tetrachloride poisoning) may not enjoy the beneficent balm of that same statute.   There are doubtless innumerable accidental injuries and occupational diseases which lend themselves readily to application of rule 10925 (e.g., the hand and wrist injuries of petitioner) but that fact affords no basis for an argument that more serious and unalterably progressive disabilities must be excluded or, indeed, that any permanent disability should be so treated.   The workers who are so afflicted are more in need of the additional award than are those whose disability has become stationary.”  (Ibid.)

The court then considered the fact that the rating of the permanent but progressive condition had to be made at a specific point in time and commented:  “It is common and necessary practice in fixing a normal award to evaluate the disability at the time of award, in view of conditions then existing, and after peering into the future and determining so far as possible the reasonable probabilities.   The award is based on an appraisal of all these elements, past, present and prospective.”  (Dahlbeck v. Industrial Acc. Com., supra, 135 Cal.App.2d at pp. 400–401, 287 P.2d 353.)   As to “evaluating the future progress of a disability that has not come to rest” the court pointed out:  “It is a thing that courts and juries do every day in personal injury actions.   And, while the triers of the facts must confine themselves to awards based upon reasonable certainty, the medical evidence need not reach any such degree of positive assertion.  [Citations.]  The commission and its referees should be deemed no less competent to perform this task than is the ordinary jury.”  (Id., at p. 401, 287 P.2d 353.)

 There are thus two circumstances in which a progressive disability can be considered permanent for rating purposes—(1) when the disability is total and further deterioration would be irrelevant for rating purposes and (2) when the prognosis of the disease is sufficiently ascertainable to make a rating determination.   When either of these circumstances exist, they substitute for the requirement that a disability be “stationary” as well as “permanent” to be “ratable.”

 It is possible that one or both of these circumstances exist in the instant case but apparently the board did not consider either possibility.   The board concluded that the disability was “total” but it did so by the use of a concept which is peculiar to the determination of benefit payments for a partial temporary disability.   When an employee's temporary partial disability is such that it effectively prevents him from performing any duty for which he is skilled, then the burden shifts to the employer to show that suitable work is available to him.   If there is no showing by the employer that the work is available and offered, the wage loss is deemed total and the injured worker is entitled to total temporary disability benefits.   (Pacific Employers Ins. Co. v. Industrial Acc. Com., supra, 52 Cal.2d at pp. 420–422, 340 P.2d 622;  Transport Indem. Co. v. Ind. Acc. Com. (1958) 157 Cal.App.2d 542, 546, 321 P.2d 21;  Huston v. Workers' Comp. Appeals Bd., supra, 95 Cal.App.3d at p. 868, 157 Cal.Rptr. 355.)   Jackson's condition came within this so-called “odd-lot doctrine” because he could not work in the dusty environment of his regular work.   This inability to work in a dusty environment should be considered in obtaining a permanent disability rating (see 1 Herlick, Cal.Workers' Compensation Law, supra, Describing Disability, § 7.33, pp. 212–215) but it does not operate to convert a partial permanent disability into a total disability.

We note that the board invites comparison with its decision in Piedemonte v. Western Asbestos (1981) 46 Cal.Comp.Cases 475 as support for its conclusion that Jackson's condition cannot be ratable as a permanent disability as long as it can reasonably be expected to get worse.   In Piedemonte, an employee sustained injury to his lungs from exposure to asbestos but the disability had not yet manifested itself.   The workers' compensation judge held that the employee suffered no permanent disability.   The employee was concerned that if injury had been established he would be barred from claiming workers' compensation benefits if his condition did not manifest disability until after the five year period to reopen had passed.   The board resolved this problem by deleting the workers' compensation judge's finding of “no permanent disability” and substituting a finding that “Applicant's condition is not yet permanent and stationary.”  (P. 483.)   The board in Piedemonte was concerned with “date of injury” and a disability which had not yet manifested itself and not with whether a disability which had manifested itself was “temporary” or “permanent.”   The board itself in a later decision cited Piedemonte for the proposition “that application of the statute of limitations, being a disfavored defense, may result in one finding for that purpose and different findings for other purposes.”  (Nino v. County of Los Angeles (1982) 47 Cal.Comp.Cases 370, 373.)   Furthermore, the court in J.T. Thorp, Inc. v. Workers' Comp. Appeals Bd. (1984) 153 Cal.App.3d 327, 345, 200 Cal.Rptr. 219, in a decision concerned with the “date of injury” in an asbestos case and agreeing with the result in Piedemonte, remarked that “Piedemonte 's concern with avoiding a finding of ‘no permanent disability’ no longer seems appropriate.”   Piedemonte 's reasoning as to the significance of the progressive nature of asbestosis is not persuasive authority for the issue at hand.

The decision of the board is annulled and the cause is remanded for further proceedings consistent with this opinion.

ANDERSON, Presiding Justice.

POCHE and CHANNELL, JJ., concur.

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