MIHESUAH v. WORKERS COMPENSATION APPEALS BOARD

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

Henry E. MIHESUAH, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD of the State of California and Union Oil Company, Respondents.

Civ. 35622.

Decided: May 02, 1975

Van Bourg, Allen, Weinberg, Williams & Roger, P. C., Barry J. Williams, Oakland, for petitioner. Frank H. Batlin, Philip M. Miyamoto, Raymond G. Agnew, San Francisco, for respondent (Workers' Compensation Appeals Board). Herlihy, Herlihy, Jones & Nelson, Jack Sisk, Los Angeles, for respondent (Union Oil Co. of California).

Petitioner Henry E. Mihesuah received multiple injuries in an industrial accident. After protracted proceedings upon his application for benefits pursuant to the workers' compensation law, respondent Workers' Compensation Appeals Board (hereinafter ‘Board’) filed an opinion and decision after reconsideration in which it affirmed a referee's prior determination that petitioner had sustained a 77% permanent disability. We granted review for the principal purpose of considering petitioner's contentions (1) that a multiple-disability rating of 92% is commanded by pertinent provisions of the permanent disabilities rating schedule which apply in his case and (2) that the rating so scheduled is conclusive upon the Board. We reject both of the stated contentions but, for related reasons which will appear, we annul the Board's opinion and decision and remand the cause to it for further proceedings.

Petitioner's accident occurred on April 29, 1969. After initial proceedings upon his application of industrial benefits, the Board filed an opinion and order after reconsideration in which it denied benefits upon the ground that his cause of action was barred by the statute of limitations. Division Three of this court granted review, annulled the opinion and order, and remanded the cause to the Board for further proceedings. (Mihesuah v. Workmen's Compensation Appeals Bd. (1972) 29 Cal.App.3d 337, 105 Cal.Rptr. 561.) The consequences of the reopened proceedings are before us on the present review.

When the accident occurred on April 29, 1969, petitioner was 46 years of age and working for respondent Union Oil Company as an automotive mechanic. He sustained severe injuries to his chest and to his left knee. (See Mihesuah v. Workmen's Compensation Appeals Bd., supra, 29 Cal.App.3d 337 at pp. 338–339, 105 Cal.Rptr. 561.) The chest injury was treated by Mortimer A. Benioff, M. D., a pulmonary specialist. The knee injury was treated by A. M. Auerbach, M. D., an orthopedist. One written report by Dr. Benioff, and several reports by Dr. Auerbach, were filed in the course of petitioner's reopened proceeding.

In 1973, a Board referee submitted to the Permanent Disability Rating Bureau (hereinafter ‘Bureau’) an official form upon which she (the referee) identified petitioner and requested a permanent disability rating by the Bureau, stating:

‘A recommended permanent disability rating is requested based on the following: Date of injury: 4–29–69. Age at injury: 46. Compensation rate: $52.50. Occupation: Diesel mechanic.

‘Back and left lower extremity disability sufficient to limit applicant to semi-sedentary work.’ (Emphasis added.)1

On August 24, 1973, a bureau rating specialist returned the Form 75 to the referee showing on it (see CEB, § 15.20) a standard rating of 60%, formulary adjustments for petitioner's age and occupation, and a recommended permanent disability rating of 69% as the result. (See id., §§ 15.19, 15.21.) On motions by respondent Union Oil Company and petitioner, the referee conducted a hearing on November 8, 1973, at which the specialist was cross-examined by counsel for both parties. He testified that in formulating the recommended permanent disability rating of 69% he had worked from the referee's Form 75 instructions only (see test at fn. 1, ante) and that he had not ‘had the use of multiple disability rating tables.’

In her ‘Findings and Award’ and a report filed on December 13, 1973, the referee stated her detemination that petitioner had ‘sustained [a] 77ermanent disability’ and awarded him permanent disability indemnity accordingly. On December 31, 1973, respondent Union Oil Company filed a petition for reconsideration. In her report on the petition, filed on January 14, 1973, pursuant to the Board's rules (see CEB, § 10.25), the referee reviewed the medical evidence pertaining to both of petitioner's injuries, acknowledged in effect that she had erroneously based her determination of his permanent disability on his chest injury only,2 and recommended to the Board that respondent Union Oil Company's petition for reconsideration be granted as to his permanent disability.

On March 13, 1974 (while the petition for reconsideration was pending), the Board itself submitted another Form 75 to the Bureau upon which it stated the factors of petitioner's permanent disability as follows:

‘CHEST: Post traumatic deformity, susceptibility to infection and decrease in respiratory function which in and of itself would limit applicant [petitioner] to light work.

‘LEFT KNEE: Moderate to severe medial and lateral instability which requires wearing knee brace if applicant [petitioner] has to walk for any length of time and limits him to semi-sedentary work. He can do light lifting but little bending which involves the injured knee. He can do light work which involves some sitting or some standing but cannot place strains on knee such as those involved in lifting over 25 pounds, long periods of standing, and repetitive bending or stooping.’ (Emphasis added.)3

The second Form 75 reached the same Bureau specialist who had recommended the 69% permanent disability rating on August 24, 1973. He returned it to the Board on March 26, 1974, this time showing a standard rating of 70%, formulary adjustments for petitioner's age and occupation, and a recommended permanent disability rating of 74% as the result.

In a letter written to the Board after the newly-recommended rating has been served on the parties, petitioner's counsel challenged the 74% rating and again requested a further hearing for the purpose of cross-examining the rating specialist. Respondent Union Oil Company also requested a further hearing for that purpose.

On April 5, 1974 (before any further hearing was conducted as requested), the Board granted respondent Union Oil Company's still-pending petition for reconsideration of the award made by the referee on December 13, 1973. In its ‘Opinion and Order Granting Reconsideration,’ the Board stated that it was ‘constrained to reevaluate’ the 77% figure of permanent disability stated in the 1973 award because the referee, in theretofore requesting a recommended rating by the Bureau (see text at fn. 1, ante), had failed ‘to separately describe all factors of permanent disability’ as required by Hegglin v. Workmen's Comp. App. Bd. (1971) 4 Cal.3d 162, 93 Cal.Rptr. 15, 480 P.2d 967 (which the Board cited in the opinion and order).

A further hearing was conducted before a second referee on May 22, 1974, at which the rating specialist was cross-examined by counsel for respondent Union Oil Company and petitioner. The second referee then ordered the matter referred to the Board ‘for further action,’ and submitted to it a report dated May 24, 1974 (‘Minutes of Hearing and Summary of Evidence’), in which he recounted the specialist's testimony. Our summary of that testimony paraphrases and quotes the referee's May 24 report, with some interpolation and emphasis added in the quoted passages, as follows:

In arriving at the 74% rating, the specialist had considered nothing except ‘the factors of disability’ stated to him in the Board's request of March 13, 1974. (See text at fn. 3, ante.) With respect to the ‘factors relating to the chest alone,’ he assigned a standard rating of 50% which, after adjustment for petitioner's age and occupation, produced a permanent disability rating of 56% attributable to the chest injury. Working from the ‘factors relating to the left knee alone,’ he assigned a standard rating of 60% which, similarly adjusted, produced a permanent disability rating of 69% for petitioner's knee injury.

‘He [the specialist] arrived at a 70% standard rating on these factors because the factors involved two area [sic], respiratory and left knee. The factors suggest a minimum of 60% for semi-sedentary work limitation [as to petitioner's knee] and additional disability related to the respiratory complaints limiting to light work, suggesting an overall disability greater than 60%. In his opinion, the factors suggested a disability of sedentary work or 70tandard.’ 4 This was his opinion although he agreed that ‘[u]sing multiple tables and combining a 60% [sic] and 56% rating the rating would be 92%.’

On August 6, 1974, the Board filed the ‘Opinion And Decision After Reconsideration’ presently under review. As pertinent, it stated therein: ‘The Board granted reconsideration in this case, among other things, to reevaluate the nature and extent of applicant's [petitioner's] permanent disability in view of the referee's acknowledged failure to separately describe all of the factors. Thereafter, new instructions were prepared and forwarded to the Rating Bureau,5 whose recommended rating thereon resulted in a special hearing to cross-examine the rating specialist. . . .

‘As far as the nature and extent of applicant's permanent disability is concerned, the factors contained in our instructions to the Rating Bureau dated March 13, 1974, were taken directly from the uncontroverted reports of Dr. Auerbach and Dr. Benioff. The rating specialist's conclusions thereupon are similarly uncontradicted.’

The Board then quoted the referee's report of the rating specialist's testimony as follows:

“He arrived at a 70% standard rating on these factors because the factors involved two area [sic], respiratory and left knee. The factors suggest a minimum of 60% for semi-sedentary work limitation and additional disability related to the respiratory complaints limiting to light work, suggesting an overall disability greater than 60%. In his opinion, the factors suggested a disability of sedentary work or 70% standard.

“The rating for the left knee [alone], after adjustment for age and occupation, would be . . . 69%. The rating for the chest [alone] would be . . . 56%.

“Using multiple tables and combining . . . the rate would be 92%.”

‘Thus, it appears to us that there is evidence to support a rating of no less than 69% and no more than 92%. However, the rating specialist testified that in his judgment 70% standard was warranted under the circumstances. His opinion is not only well within the range of evidence available to him, but is also uncontradicted. Therefore, we are of the opinion that applicant sustained a 74% permanent disability as the result of his injury [sic] herein is fully justified by the evidence.

‘. . .

‘For the foregoing reasons, IT IS HEREBY ORDERED that the Findings and Award filed herein on December 13, 1973, . . . [is] . . . adopted and affirmed as the Decision After Reconsideration of the Appeals Board.'6

Because the questions on review involve the use and effect of the ‘permanent disabilities rating schedule’ in the evaluation of petitioner's permanent disability, we find it necessary to identify the schedule and its pertinent provisions at this point. The master schedule is a single document which is adopted, and amended from time to time, by the administrative director of the Division of Industrial Accidents (of the Department of Industrial Relations) under the authority vested in him by subdivision (b) of Labor Code section 4660.7 (See Department of Motor Vehicles v. Workmen's Comp. Appeals Bd. [Payne] (1971) 20 Cal.App.3d 1039, 1043, 98 Cal.Rptr. 172; CEB, §§ 15.7, 15.11–15.12.) It is currently published in a 1966 edition under the title ‘Schedule For Rating Permanent Disabilities Under Provisions Of The Labor Code Of The State of California’ and the designation ‘DIA Form 302 (rev. 6–66)’ (see CEB, § 15.7); we hereinafter cite it on occasion as ‘Form 302.’

The original 1966 edition of Form 302 included a ‘Supplement’ which commenced at page 75 and which included the so-called ‘multiple disabilities rating schedule’ at page 81 (‘Rating Multiple Disabilities') and 82 (‘Table For Determining Multiple Disability Ratings'). The multiple disabilities rating schedule still appears at those pages of the master schedule, but has been affected by successive amendments of the latter as adopted by the administrative director effective January 1, 1970, and January 1, 1973 (hereinafter the ‘1970 amendment’ and the ‘1973 amendment,’ respectively.)8

As it pertains to the common case where the Board evaluates a single disability caused by one industrial accident, the use of the permanent disabilities rating schedules.—i. e., the master schedule—has been established by long experience. (See CEB, §§ 15.7–15.21.) The use of the multipe disabilities rating schedule, which derives from the same statutory basis as the master schedule (Lab.Code, § 4660 [quoted in fn. 7, ante]; see Subsequent Injuries Fund v. Industrial Acc. Comm. [Rogers] (1964) 226 Cal.App.2d 136, 148 [fn. 7], 150–155, 37 Cal.Rptr. 844) has been established by judicial direction in the case of multiple, ‘overlapping’ disabilities caused by separate accidents. (State Compensation Ins. Fund v. Industrial Acc. Comm. [Hutchinson] (1963) 59 Cal.2d 45, 52–56, 27 Cal.Rptr. 702, 377 P.2d 902; CEB, § 15.44.)

More recently, and for the first time, the Supreme Court considered the use of the multiple schedule in the distinct situation where, as in the present case, the Board requests from the Bureau a rating of multiple disabilities caused by a single accident. (Hegglin v. Workmen's Comp. App. Bd., supra, 4 Cal.3d 162, 172–174, 93 Cal.Rptr. 15, 480 P.2d 967.) As pertinent here, the Hegglin court stated: ‘We hold that in cases involving multiple factors of disability cause by a single industrial accident the Board must, in any instructions it may direct to the rating bureau, fully describe each separate factor of disability. Any overlap of the factors of disability thus described is adequately taken into account, and the pyramiding of disabilities is properly avoided, by application of the multiple disabilities rating schedule.’ (Id., at p. 174, 93 Cal.Rptr. at p. 22, 480 P.2d at p. 974 [emphasis added].)

The parties agree that the Board complied with the just-quoted Hegglin holding when it separately described the two factors of petitioner's disability in the rating request it made to the Bureau on March 13, 1974. (See text at fn. 3, ante.) They further agree that there is some ‘overlap’ between the two factors. None of the parties challenges the separate ratings of 69% and 56% which the Bureau specialist adopted as to petitioner's knee injury and chest injury respectively. They also agree with the specialist's testimony that the mechanical processing of these two ratings into the multiple disabilities rating schedule produces a tabulated rating figure or 92%. It is at this point that their disagreement presents the problem before us.

Petitioner contends in effect that, given the undisputed element of some ‘overlap’ between the two separate factors of disability caused by the single 1969 accident in which he wa injured, the permissible exercise of any judgment by the rating specialist began and ended when he assigned a separate rating to each of the factors; that the above-quoted Hegglin holding required him to process the two ratings into the multiple disabilities rating schedule, and precluded him from recommending any composite rating other than the tabulated result; that this conclusion is commanded by the Hegglin court's statement that ‘[a]ny overlap of the factors of disability . . . is adequately taken into account . . . by application of the multiple disabilities rating schedule’ (Hegglin v. Workmen's Comp. App. Bd., supra, 4 Cal.3d 162 at p. 174, 93 Cal.Rptr. at p. 22, 480 P.2d at p. 974 [emphasis again added]); that the rating automatically produced by the specialist in this procedure is conclusive upon the Board: and that, because the specialist in this case did not follow the procedure and the Board adopted his rating, the opinion and decision under review in not supported by substantial evidence.

We first reject that portion of petitioner's argument in which he asserts that the Bureau specialist's rating, however calculated, is conclusive upon the Board in any case. A Bureau specialist who is consulted by the Board, for the purpose of evaluating one or more permanent disabilities in a worker's compensation proceeding, is not the trier of fact in the proceeding. (CEB, § 15.38.) He is an expert witness whose testimony consists of the rating he recommends (ibid.) and the Board, which is the trier of fact, is not bound by it. (Ibid.) It necessarily follows that the Board is not bound by the extent to which the specialist has followed the multiple disabilities rating schedule, or has departed from it, in arriving at his recommendation.

In the present case, the specialist departed from the 92% figure shown in the multiple disabilities schedule and recommended a 70% rating which translated to 74% when adjusted for petitioner's age and occupation. By adopting the 74% rating in the opinion and decision under review (in which the Board ‘adopted and affirmed’ the referee's 1973 award which reflected it), the Board itself departed from the 92% figure shown in the multiple disabilities rating schedule. A question of law thus presented is whether the schedule is conclusive upon anyone involved in the rating process, as petitioner contends; whether the Board's opinion and decision is supported by substantial evidence is a corollary question which is essentially one of fact.

The answer to the question of law is found in the prefatory text of the multiple disabilities rating schedule itself, where the administrative director has prescribed the arithmetical formula by which a composite rating is calculated in any case involving two disabilities. (From 302 [1966 ed.], p. 81.9 See CEB, §§ 15.44–15.45.) According to the last sentence of the first paragraph of the formula (see fn. 9, ante), the actual ‘schedule’ which follows it is no more than a convenient tabulation of the process it describes. According to its second paragraph, the formula itself is only a ‘guide’ to be employed in following and concluding the process: ‘[t]he final rating will be the result of consideration of the entire picture of disability and possibility of employability.’ (See ibid.) Examination of the formula's full text, and of such authority as there is on the subject, commands these conclusions:

Two permanent disabilities may warrant separate ratings if they do not ‘overlap’: that is, where they are cumulative but ‘separate and independent.’ (CEB, § 15.44.) They completely ‘overlap’ where the lesser disability ‘does not reduce the employee's ability to compete in an open labor market beyond the limitation that resulted from the other [i. e., the greater] disability’ (ibid.), in which case the rating of the greater may serve a the rating of both because the lesser is enveloped and submerged within it. When there is an ‘overlap’ between them but only in part, ‘additional compensation is payable to the extent that the second [lesser] disability further restricts' the employee's ‘ability to compete’ in the open market. (Ibid.)

We therefore hold, contrary to petitioner's contentions, as follows: The formula embodied in the multiple disabilities rating schedule is not to be followed in the process of rating two disabilities which overlap completely. It may apply, and the arithmetical result of its application will adequately support a rating, where the disabilities are ‘separate and independent’ and do not overlap at all. Where they overlap in part, the formula serves as a ‘guide,’ in the process of rating them together, in that it provides a percentage ceiling from which the rating specialist departs by calculating a lesser, composite rating according to his expert assessment of the actual degree of overlap. The critical factor in the process is the specialist's judgment as to whether an overlap is absent in the first instance; whether it is total in the second; and, in the third, the degree to which it exists. Because his judgment pervades the process, the multiple disabilities schedule remains only a ‘guide’; it is not conclusive upon him as an expert witness, nor is it conclusive upon the Board as the ultimate trier of fact. This analysis of the formula, and of the specialist's role in its application, both interprets and comports with the Hegglin court's statement that ‘[a]ny overlap of the factors of disability . . . is adequately taken into account . . . by application of the multiple disabilities rating schedule.’ (Hegglin v. Workmen's Comp. App. Bd., supra, 4 Cal.3d 162 at p. 174, 93 Cal.Rptr. 15 at 22, 480 P.2d 967 at 974.)

Although our analysis has answered the question of law presented, the question of fact persists. In the opinion and decision under review, the Board relied entirely upon the 74% rating produced by the specialist and adopted it because, as the Board stated, it fell ‘within the range of evidence available to him,’ the limits of which the Board defined as ‘no less than 69% and no more than 92%.’ According to our holding above, the 74% rating would be an acceptable basis for the Board's opinion and decision only if it reflected the specialist's expert assessment of the absence or presence, and the degree if present, of any ‘overlap’ between petitioner's two disabilities.

Having examined ‘the entire record’ in keeping with our obligation to do so in determining ‘whether the board's conclusion was supported by substantial evidence’ (LeVesque v. Workmen's Comp. App. Bd. (1970) 1 Cal.3d 627, 637, 83 Cal.Rptr. 208, 215, 463 P.2d 432, 439; Hegglin v. Workmen's Comp. App. Bd., supra, 4 Cal.3d 162 at p. 169, 93 Cal.Rptr. 15, 480 P.2d 967), we have found no indication that such expert assessment was made in this case. The record does show that the specialist's 74% rating was a figure adjusted from a 70% standard rating which he applied to petitioner's disabilities because, as he testified at the 1974 hearing, ‘[t]he overall disability would suggest something in the area of a sedentary or 70tandard.’ (See fn. 4 and accompanying text, ante.) His testimony demonstrates that he thus applied a ‘guideline for work capacity’ at the 70%, or ‘sedentary,’ level of a table of such ‘guidelines' which was incorporated into the permanent disability rating schedule by the 1970 amendment thereof as to chest disabilities (Form 302 [1970 amend.], p. 1–A [caption, guideline ‘(h)’ and footnote]; CEB, § 15.17), and by the 1973 amendment as to disabilities of the lower extremities. (Form 302 [1973 amend.], p. 1–A [caption, guideline ‘(h) and second footnote]; CEB, § 15.17.) The first referee resorted to the same ‘guidelines' when she referred to ‘semi-sedentary work’ in her 1973 instructions to the Bureau (see text at fn. 1, ante) and when she referred to ‘semi-sedentary work’ and ‘light work’ in her report to the Board on the petition for reconsideration (see fn. 2, ante); the Board used the same ‘guideline’ jargon when it re-instructed the Bureau in March, 1974. (See text at fn. 3, ante.)

None of these ‘guidelines' applied to petitioner's disabilities because his injury occurred in 1969 and both of the cited amendments operated prospectively only; both are explicit to this effect in the documents just identified, as is the statute pursuant to which both were adopted.10 (See Lab.Code, § 4660, subd. [c], quoted in fn. 7, ante.) Moreover, and while the rating specialist might have found the 70% ‘guideline’ useful as a general—if unofficial—rule of thumb (see CEB, § 15.17), none of the ‘guidelines' takes into account any factor of ‘overlap’ between multiple disabilities.

It appears that the rating specialist himself did not take any factor of ‘overlap’ into account. When he was expressly interrogated on this subject at the 1974 hearing, he said only: ‘There might be some overlap; however, I think there are two distinct areas of disability here.’ (See fn. 4 and accompanying text, ante.) This statement is wholly ambiguous. The first clause suggests the presence of overlap but does not specify its degree; the second suggests that the witness found no overlap at all, in which case the multiple disabilities rating schedule could call for a 92% rating because th ‘two distinct areas of disability’ were ‘separate and independent.’ (See CEB, § 15.44.) The net effect of the statement is to make the highly relevant fact of overlap a matter of speculation and the specialist's ‘guideline’ rating little more than a guess.

‘An expert's opinion which rests upon guess, surmise or conjecture, rather than relevant, probative facts, cannot constitute substantial evidence. (Citations.)’ (Garza v. Workmen's Comp. App. Bd. (1970) 3 Cal.3d 312, 318 [fn. 3], 90 Cal.Rptr. 355, 359, 475 P.2d 451, 455.) The specialist's rating must be so characterized in this case; the Board's opinion and decision, which rests upon it exclusively,11 must therefore be annulled because it is ‘not supported by substantial evidence.’ (Lab.Code, § 5952, subd. [d].) Upon the remand hereinafter ordered, the questions of ‘overlap’ between petitioner's multiple disabilities, and the degree thereof if it exists, must be resolved and determined upon substantial evidence.

The opinion and decision is annulled and the cause is remanded to respondent Board for proceedings consistent with the views expressed herein.

FOOTNOTES

1.  The form employed by the referee was ‘DIA WCAB Form 75 (rev. 2–72),’ to which we hereinafter refer as ‘Form 75.’ For an exemplar of the form and an exposition of its use, in the permanent disability rating process, see California Workmen's Compensation Practice (C.E.B.1973) § 15.20. (We hereinafter refer to this C.E.B. practice book as ‘CEB’ only.)

2.  In these respects, the referee used the following langauge in her report:‘As for permanent disability, the Referee . . . relied on Dr. Auerbach's report of April 6, 1973, that applicant [petitioner] was limited to semi-sedentary work. However, the report . . . also states that applicant could perform light work.‘As for pulmonary disability. Dr. Benioff's report . . . states that the lung condition alone limits applicant to light work, despite the lack of objective evidence. His opinion on applicant's non-pulmonary condition should not take precedence over Dr. Auerbach's . . . opinion.‘The Referee erred in relying on Dr. Benioff's report insofar as the orthopedic [i. e., left knee] condition is concerned. . . . [T]he total rating should be the maximum disability attributable to this one accident which is a limitation to semi-sedentary work. This gives applicant the benefit of any doubt and takes into consideration all substantial relevant evidence on this issue.’ (Emphasis added.)

3.  Petitioner does not dispute the accuracy of either of these descriptions as summations of the medical reports by Drs. Benioff and Auerbach, respectively.

4.  The specialist testified to this ‘opinion’ in the following exchange: ‘Q. Now, this you felt to be a judgment rating on the . . . instructions that were tendered to you, did you not . . .? A. The overall disability would suggest something in the area of a sedentary or 70tandard. REFEREE: Well, his question is that conclusion is a judgment on your part? WITNESS: It's my opinion, yes. Q. . . . In arriving at your impression, coming to your judgment as to what standards to use, you considered that some of the problems he would have with his chest disability were of the same nature and the same type of problems he would have with the left lower extremity disability; is that a fair statement? A. There might be some overlap; however, I think there are two distinct areas of disability here.’ (Emphasis added.)

5.  This chronological recital is inaccurate. As previously stated in the text, the Board did not grant reconsideration of the first referee's 1973 award until after it had forwarded the new instructions to the Bureau and had received the second recommended rating of 74%.

6.  The Board thus sustained the specialist's rating of 74%, but ‘adopted and affirmed’ the 1973 award in which the referee fixed petitioner's permanent disability at 77%. According to the pleadings on review, the discrepancy between these two figures may be attributable to a ‘clerical error’ which the Board has declined to correct because respondent Union Oil Company has not requested correction. Since we hereinafter annul the opinion and decision in which it appears, the discrepancy may be ignored.

7.  The full text of this section provides:‘4660. (a) In determining the percentages of permanent disability, account shall be taken of the nature of the physical injury or disfigurement, the occupation of the injured employee, and his age at the time of such injury, consideration being given to the diminished ability of such injured employee to compete in an open labor market.‘(b) The administrative director may prepare, adopt, and from time to time amend, a schedule for the determination of the percentage of permanent disabilities in accordance with this section. Such schedule shall be available for public inspection, and without formal introduction in evidence shall be prima facie evidence of the percentage of permanent disability to be attributed to each injury covered by the schedule.‘(c) Any such schedule and any amendment thereto or revision thereof shall apply prospectively and shall apply to and govern only those permanent disabilities which result from compensable injuries received or occurring on and after the effective date of the adoption of such schedule, amendment or revision, as the fact may be.’

8.  The two schedules described—the permanent disabilities rating schedule and the multiple disabilities rating schedule contained within it—were cited and discussed in the proceedings below, but were not formally received in evidence and have not been included in the record. (See Evid.Code, § 459, subd. [d].) They have been cited and discussed in the pleadings on review and at oral argument, which means that the parties have had the opportunity to ‘meet’ any information contained in them. (See ibid.) We therefore take judicial notice of the entire contents of both schedules. (Evid.Code, § 452, subds. [b], [c]; id., § 459, subd. [a].)

9.  The text sets out the pertinent language of the formula, which in essence is both arbitrary and simplistic, as follows: ‘In rating multiple disabilities . . ., it is first necessary to compute the rating which would apply to each component disability as it would rate if it stood alone. These ratings are then arranged in order of magnitude. First, take the rating for the major disability. It is then assumed that the remaining capacity will equal 100% minus the rating for the major disability. Therefore, the rating for the secondary disability is applied to this remaining capacity and the resulting percentage added to the rating for the major disability. The combined rating for the two disabilities is this sum plus 10% of the rating for the secondary disability. . . . Final rating may not exceed 100%. The table on the following page can be used instead of performing the computation in each individual case.‘The result obtained by such calculation is not necessarily to be adopted as the final rating for combined disabilities but should serve as a guide only. The final rating will be the result of consideration of the entire picture of disability and possibility of employability.’ (Emphasis added.)

10.  In fact, the multiple disabilities rating schedule itself did not become part of the permanent disability rating schedule until the 1973 amendment of the latter. It had theretofore appeared in the ‘Supplement’ of the master document under a legend stating that ‘[t]he information appearing in this Supplement is for general guidance only and is not an integral part of the [master] schedule.’ (Form 302 [1966 ed.], pp. 75, 81–82.) The 1973 amendment directed the ‘transfer’ of the multiple disabilities rating schedule, from the ‘Supplement,’ for the purpose of making it an ‘integral part’ of the master document but only as to‘injuries occurring on or after January 1, 1970.’ (Form 302 [1966 ed.], p. 75; id., [1973 amend.], pp. 1–A [second footnote], 81.) Petitioner having been injured in 1969, the multiple disabilities rating schedule was a proper ‘guide’ in the evaluation of his disabilities but its contents did not amount to ‘prima facie evidence’ thereof in terms of the underlying statute. (Lab.Code, § 4660, subds. [b], [c].)

11.  One view of the first referee's report to the Board (made in January, 1974, relative to the then-pending petition for reconsideration) would suggest that she saw no overlap between petitioner's disabilities; on the other hand, the report does not clearly indicate that she gave full consideration to the possibility. (See fn. 2 and accompanying text, ante.) In any event, the Board neither followed nor cited the report in the opinion and decision under review; as here stated, it relied exclusively upon the 74% rating recommended by the specialist in 1974.

RATTIGAN, Acting Associate Justice.

CHRISTIAN, and EMERSON,* JJ., concur.