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

PULLMAN KELLOGG, DIVISION OF PULLMAN, INCORPORATED, Eldorado Insurance Company, Petitioners, v. WORKERS' COMPENSATION APPEALS BOARD of the State of California and Martin G. Normand, Respondents.

Civ. 54764.

Decided: July 19, 1979

Rowen, Swanson & Rose and Joel D. Swanson, Sherman Oaks, for petitioners. Steven Roseman and John Sherman, Los Angeles, for respondent Martin G. Normand.

Petitioners Pullman Kellogg, Division of Pullman Incorporated (hereinafter “Pullman”) and its workers' compensation insurance carrier, Eldorado Insurance Company (hereinafter “Eldorado”), contend that the Workers' Compensation Appeals Board (“Board”) erred in annulling the decision of the workers' compensation judge which apportioned one-half of the injured worker's permanent disability as nonindustrial and in lieu thereof finding that all of the injured worker's permanent disability was industrially caused.

Respondent Martin G. Normand, the injured employee herein, while employed as a plumber-pipefitter by various employers, sustained injury arising out of and occurring in the course of his employment to his lungs. Normand has been engaged in plumbing-pipefitting since approximately 1936. Over the course of his employment Normand was exposed to various substances consisting of fumes and dust from welding, soldering, lead burning, lead wiping, and lead calking. He also was exposed to steel fumes, plastic fumes, asbestos, and diatomaceous earth from transit pipe. Normand was last exposed to such hazardous substances in his employment in October 1976. As a result of this exposure on an industrial basis, Normand suffers from chronic obstructive pulmonary disease with chronic bronchitis and emphysema.

Pursuant to Labor Code section 5500.5, the liability for Normand's occupational injury is limited to his employers during the last five years of employment. Accordingly, the employers during the five-year period from October 1971 through October 1976, are entirely liable for the industrially related disability and there is no apportionment to industrial exposure prior to October 1971. (Lab.Code, s 5500.5; Flesher v. Workers' Comp. Appeals Bd. (1979) 23 Cal.3d 322, 152 Cal.Rptr. 459, 590 P.2d 35.) During part of such five-year liability period, Normand was employed by Pullman. Eldorado was Pullman's workers' compensation insurance carrier from January 1, 1974 through March 1976. Pursuant to Labor Code section 5500.5, subdivision (c), Normand elected to proceed on his claim against Kellogg and Eldorado. (See Schrimpf v. Consolidated Film Industries (WCAB en banc opinion, 1977) 42 Cal.Comp.Cases 602.) Under the election procedure, Normand only need prove his claim against Kellogg/Eldorado who must pay the entire award. However, Kellogg/Eldorado are entitled to seek contribution from the other employers and carriers within the five-year liability period. (Lab.Code, s 5500.5, subd. (e).)

Normand first noticed symptoms in 1970; these symptoms consisted mainly of fatigue. In 1972, Normand became aware of breathing difficulty and sought medical treatment at that time. Normand continued to have breathing problems and was under medical care but continued working intermittently. In 1973, Normand was diagnosed as having chronic obstructive pulmonary disease and emphysema. Normand last worked in October 1976.1

The industrial relationship of Normand's lung condition is not here disputed. We are only asked to review the question of whether or not part of Normand's permanent disability should be apportioned as nonindustrial. The basis of Pullman/Eldorado's assertion that there should be apportionment is that Normand smoked one pack of cigarettes a day from 1934 until approximately 1972, when he stopped smoking.

The medical evidence on the question of apportionment consists of medical reports by Samuel J. Sills, M.D., who reported on behalf of Normand, and William F. Bierer, M.D., who reported on behalf of Pullman/Eldorado.

Commenting upon apportionment, Dr. Sills, in his report of August 11, 1977, stated:

“It is my opinion that there was sufficient exposure over a period of years to aggravate the patient's chronic bronchitis. His chronic bronchitis and obstructive pulmonary disease is due to two factors. One his own air pollution by smoking thirty pack years and the other by the numerous fumes and dusts and welding fumes, etc. that he was exposed to over a period of years. We find no evidence of pneumoconiosis as far as the x-ray is concerned. The principal finding was that of obstructive lung disease with trapping of air. I, therefore, would have to note that the probable cause for this patient's pulmonary pathology is due 50% To his smoking history and 50% To the various fumes over a forty year period.

“It is my opinion that one would have to prorate the patient's disability among his various employers since there probably was an accumulative effect rather than to blame one particular employment period.

“. . .my

“It is my opinion that his chronic obstructive pulmonary disease and emphysema with the bronchitis from which he is suffering was due 50% To his industrial exposure and 50% Due to his own air pollution by his smoking history of thirty pack years.”

In his report on May 22, 1978, Dr. Bierer stated, in pertinent part:

“I feel that at the present time, the patient has a 50% Respiratory disability resulting in restriction to sedentary work only. . . .

“. . . th

“I feel that of this 50% Disability, 90% Of this is due to a long smoking history. Ten percent is due to cumulative industrial exposures to soldering fumes from the age of 16 to 52. The patient has worked for almost 100 different contractors over the years and it would be impossible to apportion this among the various employers.”

As to permanent disability, the workers' compensation judge found that the injury herein resulted in Normand being limited to sedentary work. Relying upon Dr. Sills' opinion, the workers' compensation judge apportioned 50 percent of the permanent disability as nonindustrial.

Normand then sought reconsideration by the Board. The Board annulled the finding of apportionment based upon the ground that the apportionment as stated by both Dr. Sills and Dr. Bierer was not in accord with proper legal principles. In its “Opinion and Order Denying Reconsideration, Granting Reconsideration and Decision After Reconsideration,” the Board panel unanimously stated:

“In order to support an apportionment, medical evidence must be based on the probability that part of the disability either existed before the injury or would have occurred even in the absence of the industrial injury. Such (evidence) must include facts or opinion as to what the disability would have been in the absence of the injury. (See e. g. Berry v. WCAB (1968), 68 Cal.2d 786, 69 Cal.Rptr. 68, 441 P.2d 908; Zemke v. WCAB (1968), 68 Cal.2d 794, 69 Cal.Rptr. 88, 441 P.2d 928.) The medical evidence in this case does not meet this criterion. In his report of October 11, 1977, Dr. Samuel J. Sills apportioned only causation . . . .

“In his report of May 22, 1978 Dr. William Bierer noted that (Normand's) disease was progressing over the previous ten to fifteen years before it became symptomatic. (Dr. Bierer apportioned 90 percent of the disability to Normand's smoking) . . . .

“We are persuaded that neither the report of Dr. Sills nor that of Dr. Bierer meet the test of Berry and Zemke. The doctors do not tell us what disability, if any, applicant would have had in the absence of the work exposure. Accordingly, apportionment cannot be based upon the foregoing medical evidence. . . .”

Petitioners Pullman and Eldorado now seek review of the Board's decision not to apportion any of the permanent disability as in part nonindustrial.

“The statutes governing apportionment generally are Labor Code sections 46632 and 4750.3 Their purpose and limitations are cogently stated in Gardner v. Industrial Acc. Com., 28 Cal.App.2d 682, 684, 83 P.2d 295, 297: ‘(The Workers' Compensation Appeals Board) is not authorized, in computing the percentage of permanent disability of an employee caused by an industrial injury, to include any percentage of such disability attributable to a prior industrial or nonindustrial disease or injury; nor is it justified in including in an award any amount as compensation for the disability attributable solely to the prior injury or disease and for which the employment was in no wise (sic) responsible.’ ” (State Comp. Ins. Fund v. Industrial Acc. Com. (Quick ) (1961) 56 Cal.2d 681, 684, 16 Cal.Rptr. 359, 360, 365 P.2d 415, 416.) (Fns. omitted.)

The question here is whether the Board erred in annulling the workers' compensation judge's decision to rely upon Dr. Sills in apportioning the disability as 50 percent nonindustrial. Thus, the persuasiveness of Dr. Bierer's opinion is not actually relevant here. The inquiry is whether Dr. Sills' opinion may be relied upon for apportionment.

It is, of course, well established that medical opinion which assumes an incorrect legal theory of apportionment cannot constitute substantial evidence upon which the Board may base an apportionment finding. (Zemke v. Workmen's Comp. App. Bd. (1968) 68 Cal.2d 794, 798, 69 Cal.Rptr. 88, 441 P.2d 928; Berry v. Workmen's Comp. App. Bd. (1968) 68 Cal.2d 786, 791, 69 Cal.Rptr. 68, 441 P.2d 908.)

Here, we observe that Dr. Sills was Normand's own selected physician. As Dr. Sills reported on behalf and at the request of Normand, at the time of trial the workers' compensation judge could properly assume that Normand was satisfied that Dr. Sills' opinion on apportionment was in accord with proper legal principles since Normand neither sought clarification from Dr. Sills nor at the time of trial requested time to obtain a supplementary report. Normand's contention subsequent to the time of trial that Dr. Sills' report did not constitute a valid basis for apportionment was too tardy. Normand cannot now claim that a medical report He offered into evidence is defective. Accordingly, we hold the Board erred in annulling the workers' compensation judge's finding of 50 percent apportionment.

The Board's decision below as it concerns apportionment is annulled. The cause is remanded to the Board with directions to reinstate the workers' compensation judge's finding that 50 percent of the permanent disability was nonindustrial and to modify the award of permanent disability accordingly.


1.  Not before this court is whether there were actually “multiple” occupational injuries (see City of Los Angeles v. Workers' Comp. Appeals Bd. (Calvert) (1978) 88 Cal.App.3d 19, 151 Cal.Rptr. 679), as such issue was not raised by any party via a petition for reconsideration (see Lab.Code, s 5904).

2.  Labor Code section 4663 provides: “In case of aggravation of any disease existing prior to a compensable injury, compensation shall be allowed only for the proportion of the disability due to the aggravation of such prior disease which is reasonably attributed to the injury.”

3.  Labor Code section 4750 provides: “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 latter 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 with a combined disability, but only for that portion due to the later injury as though no prior disability or impairment had existed.”

BEACH, Associate Justice.

ROTH, P. J., and FLEMING, J., concur.