CIGNA INSURANCE COMPANY v. WORKERS COMPENSATION APPEALS BOARD OF THE STATE OF CALIFORNIA

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

CIGNA INSURANCE COMPANY; Prestige Stations, Inc., Petitioners, v. WORKERS' COMPENSATION APPEALS BOARD OF THE STATE OF CALIFORNIA; Robert Hoy, Respondents.

No. E018736.

Decided: December 16, 1996

William K. Dietz, Dofflemyre & Dietz, San Diego, CA, for Petitioners. No appearance for respondent Workers' Compensation Appeals Board. Jeffrey M. Strongin, Glendale, CA, for Respondent Robert Hoy.

OPINION

Petitioners Prestige Stations, Inc. and Cigna Insurance Company, as the affected employer and its insurance carrier, respectively, seek review and annulment of an order of the Workers' Compensation Appeals Board denying reconsideration of the decision and finding that applicant Robert Hoy sustained an industrial injury to his right leg. They contend that the finding on the issue of industrial causation is not supported by substantial evidence because the expert medical opinions supporting this conclusion were based on an inaccurate history as ultimately found by the board. We agree, and, accordingly we annul the order.

FACTS

Applicant Robert Hoy worked for Prestige Station, Inc. at an AM/PM mini-mart in Cathedral City from February through November 1991. In January 1992, Hoy filed a workers' compensation claim for unspecified injuries to his right foot. In fact, on January 8, 1992, he had had his right leg amputated below the knee because of gangrene. A year later he had his left leg amputated below the knee for the same reason.

In June 1994, Hoy filed an amended claim alleging injuries to both legs and feet and his cardiovascular system as a result of exposure to cold during the period of his employment at AM/PM.

Hoy, who was born September 26, 1926, has a medical history that includes adult onset diabetes, a 20 year history of hypertension, porphria cutanea tarda (latent), and peripheral vascular disease. The latter disease caused the gangrenous changes in his feet and legs which required the amputations. Risk factors for the vascular condition include diabetes, hypertension, and smoking. Although Hoy had given up smoking, he had smoked two-three packs a day for thirty years.

Two physicians, Drs. Lineback and Bellaci, opined that Hoy's exposure to the cold during his work at AM/PM aggravated the vascular problem in his right leg but that the passage of time between his exposure to the cold and the date of his second amputation (left leg) made it unlikely that this injury was due to exposure to the cold.

However, both doctors' opinions that exposure to the cold aggravated Hoy's problem was based on the history provided to them by Hoy. Hoy told them he worked up to 30 hours per week in the walk-in refrigerator which was at 35 degrees. Both physicians testified during their depositions that their opinion would be altered if the actual cold exposure was less than what Hoy had told them. Both said the actual degree of cold exposure to be important factors in the determination of causation (degree of aggravation) and apportionment.

Dr. Lineback stated that he would “bet the farm” that one hour of intermittent exposure would not have contributed to the amputations. He testified that he was “less impressed with these intermittent exposures, like going in a few times, than I am with these assignments where he's in there for two to three, four hours a couples times a week. They are devastating. I'm less impressed with the intermittent exposure.”

Dr. Bellaci also testified that if Hoy's exposure to the cold was for less time and on an intermittent basis then it would be less evident that it contributed to the injury. Short periods of exposure to a temperature of 40 degrees (rather than 35) would be less likely to have an effect. Bellaci opined that “if you said it turned out it wasn't 35 degrees, the truth it was 45 degrees or 50 degrees, and the truth is it wasn't 30 hours but five or ten hours a week, I would be inclined to say that's not enough exposure.”

At trial Hoy testified that his various duties included stocking, cooking, ordering supplies, some minor cashiering duties, maintenance work and working in the cooler putting away frozen food which was delivered by truck. Hoy was asked to account for the 30 hours he had claimed he spent in the cold box. He said that his job duties included putting away frozen food into the refrigerator and freezer which were delivered by truck twice a week. He explained that he put away all the storage materials into the freezer when the truck came in. The stock was not in the cold box, but in a deep freezer. The stock had to be rotated from the deep freezer into the cold box and then put away. Milk and dairy products came from a different vendor two times a week. Hoy said he had to price dairy products and put them into a display. He spent additional time in the cold box in order to rotate the products for cooking duties. Hoy said that the temperature in the cold box was between 35 to 39 degrees, noting that there was a thermometer in there and that he looked at it often. Hoy worked on the average about 33 hours per week and spent 20-30 hours per week in the cold box.

John Grey testified that he has been a store manager for AM/PM for five years. He worked at the same store as Hoy and was his manager and often worked on the same shift. Grey was aware of Hoy's job duties. Hoy was a cook/maintenance person which meant he did everything in the store but cashiering and that he himself did the same duties.

Grey stated that the store had a walk-in cooler and that Hoy would be in the cooler up to an hour and that would be in and out of the cooler. Forty degrees was the target temperature of the cooler and Grey was required to check this temperature at least once per shift and he tried to do so.

Grey testified that if the cooler were completely bare it would probably take two hours to restock it and that it was unusual for one person to take an hour to load it. He noted that the cook does get his supplies from the cooler and that would take a few minutes only to get the stock out. The cook may walk in and out of the cooler up to 20 times per shift. The products were easily accessible and one could go in and get what was wanted very quickly.

Although Hoy had testified that he might work up to eight hours per day in the cooler, Grey said there would be no need to spend this amount of time in the cooler. Grey stated that dairy products came to the store twice a week and the dairy person would take them into the cooler and rotate the cases. It might take up to 30 minutes for one person on the day shift to price and put away the dairy load. When the frozen food was delivered it might take an employee 20-30 minutes to load and unload the frozen food in the cooler. All employees shared in the pricing and loading chores.

The workers' compensation referee specifically found that Grey's testimony in regards to Hoy's time in the cold and degree of cold to be credible. The referee also noted that she reviewed the medical reports as well as the depositions of Drs. Lineback and Bellaci and that both physicians had indicated that their opinion would be altered if the degree of temperature and the actual cold exposure differed from the actual history as given by Hoy. However, the referee noted that Hoy had complained of sore and painful feet as the reason he left his job with AM/PM and that the first amputation took place shortly after he left his job and concluded, therefore, that these facts were persuasive to show an aggravation of some degree of the pre-existing medical problems resulting in the amputation of Hoy's right leg. The referee stated that Hoy's left leg amputation was not caused by his employment with AM/PM.

The employer and its insurer Cigna unsuccessfully sought reconsideration of the award.

DISCUSSION

I. Standard of Review

When a finding of the board is challenged, it must be upheld if supported by substantial evidence in “light of the whole record.” (Levesque v. Workmen's Comp. App. Bd. (1970) 1 Cal.3d 627.) “Whether there is substantial evidence to support the decision is a question of law.” (Ferreira v. Workmen's Comp. App. Bd. (1974) 38 Cal.App.3d 120, 124.)

The employee bears the burden of establishing that the injury was sustained in the course of employment, although he need only show the reasonable probability of industrial causation.1 (Patterson v. Workmen's Compensation App. Bd. (1975) 53 Cal.App.3d 916. 921.) It is the established legislative policy is that the Workers' Compensation Act must be liberally construed in the employee's favor (Lab. Code, § 3202), and all reasonable doubts as to whether an injury arose out of employment are to be resolved in favor of the employee. (Garza v. Workmen's Comp. App. Bd. (1970) 3 Cal.3d 312, 317.)

The factual determination of the Board must be upheld if there is substantial evidence to support them, and the opinion of one doctor, though inconsistent with other medical opinions normally constitutes substantial evidence. (Patterson, supra, 53 Cal.App.3d 916, 921.) However, if medical reports are known to be erroneous or based on inadequate medical histories and examination they cannot constitute substantial evidence. The same rule applies to medical reports based on surmise, speculation, or conjecture. (Hegglin v. Workmen's Comp. App. Bd. (1971) 4 Cal.3d 162, 169.)

Whether the applicant's work contributed to the ultimate disability is a question of fact for the Board, whose determination is binding upon the courts when supported by substantial evidence. (Peter Kiewit Sons v. Industrial Acc. Com. (1965) 234 Cal.App.2d 831.)

II. Substantial Evidence of Industrial Causation.

Applying these principles here, the first significant point to note is that the issue of causation is one which requires expert evidence. Generally “the medical cause of an ailment is usually a scientific question, requiring judgment based upon scientific knowledge and inaccessible to unguided rudimentary capacities of lay arbiters.” (Peter Kiewit Sons v. Industrial Acc. Com., supra, 234 Cal.App.2d at p. 839.)

“Where an issue is exclusively a matter of scientific knowledge, expert evidence is essential to sustain a [Board] finding; lay testimony or opinion in support of such a finding does not measure up to the standard of substantial evidence. [Citations.] Expert testimony is necessary ‘where the truth is occult and can be found only by resorting to the sciences.”’ (Peter Kiewit Sons, supra, p. 838.)

While Peter Kiewit notes that in some cases the issue of causation is sufficiently within the grasp of lay experience and understanding to permit a finding without expert medical evidence, e.g., a painter falling to the ground and breaking his leg as a result of a scaffold collapse, other instances of disability, such as back disabilities are less available to lay discernment. Such cases “shout loudly for expert advice.” (Id., p. 839.)

Here also, the cause of the leg amputation is one which requires medical advice.

The medical opinions which concluded that Hoy's employment caused the injury were based on assumptions concerning the length of Hoy's exposure to cold as well as the degree of cold. The factual underpinnings of the experts' conclusions were found to be false and thus cannot constitute a sufficient basis for the referee's and the Board's decision.

We note that an “expert's opinion is only as good as the reasons upon which it is based” (Ferreira v. Workmen's Comp. App. Bd., supra, 38 Cal.App.3d 120, 126) and “[a] report which lacks a relevant factual basis cannot rise to a higher level than its own inadequate premises.” (Kyles v. Workers' Comp. Appeals Bd. (1987) 195 Cal.App.3d 614, 621.)

Nevertheless the referee concluded that the fact that Hoy had sore feet and had the amputation soon after he left his job as well as the fact that the evidence showed he had some exposure to the cold were sufficient to demonstrate causation. This reasoning is flawed. As discussed, this is a case where expert evidence was needed on the causation issue. There was no expert evidence to support causation based on the actual duration and degree of cold exposure proven at trial. To the contrary, the medical experts opined exposure for the length of time and at the temperature testified to by Grey would not have aggravated Hoy's problems. The referee accepted Grey's testimony as to these essential facts, but failed to recognize that in so doing there was no expert evidence to support causation based upon those facts.

The proximity of the injury to the date of employment is not sufficient in itself to prove causation. “The occurrence of an injury during the course of an employment does not mean that it arises out of or because of that employment. ‘An award based solely upon evidence tending to prove only a possibility of industrial causation is conjectural and cannot be sustained.”’ (Peter Kiewit Sons, supra, at p. 838.)

At this court's invitation, the Board filed a response to the petition in which it acknowledged that both doctors expressed doubt about industrial causation after being presented with information from Grey's testimony regarding the degree and duration of Hoy's exposure to the cold. However, it asserts that following these expressions of doubt both doctors made other statements which still could tend to support the finding of industrial injury even if there was less exposure to the cold. We disagree. In the portions of the depositions which the Board cites, it is clear that both doctors' opinions of industrial causation were based on the amount of cold exposure Hoy had reported to them. As we discussed, Hoy's account of the time he spent in the cooler and the temperature of the cooler was grossly inaccurate.

Hoy's efforts to champion the Board's reasoning is equally unavailing. He contends that Grey's testimony is not dispositive as to the time he personally spent in the cooler because Grey was his supervisor only during the last few months he worked at the mini market and that they did not often work the same shift. We must point out, however, that the referee's finding was not so limited; rather she specifically found Grey's testimony as to “Applicant's time in the cold and degree of the cold was found by the Court to be credible.” Moreover, Hoy's contention overlooks significant facts: not only was Grey the manager but he had performed many of the same duties as Hoy and was thoroughly familiar with the overall operation of the mini mart and with Hoy's duties specifically. Grey testified that those duties would not require him to be in the cooler for 2 hours a day as Hoy said they would, and that Hoy's exposure would be intermittent--going in and out of the cooler to get things for cooking. Grey also testified that everyone would share the stocking duties so that no one person would be in the cooler for extended periods. In short, the probative value of Grey's testimony was not limited to the periods when he and Hoy were actually on the job together, and the referee's finding of these facts certainly appears reasonable and is, of course, entitled to great weight. (Garza v. Workmen's Comp. App. Bd., supra, 3 Cal.3d 312, 319.).

DISPOSITION

The order is annulled.

FOOTNOTES

1.  Hoy contends that the injury to his right foot is presumed compensable under Labor Code section 5402 because he filed a claim in January 1992 and petitioner admits it did not issue a denial until August 1994. Labor Code section 5402 provides if the employer does not reject liability within 90 days after the date a claim form is filed, the injury shall be presumed compensable under this division. “The presumption is rebuttable only by evidence discovered subsequent to the 90-day period.” There is no indication in the record that the issue of this rebuttable presumption was ever raised or considered in the board proceedings so that it cannot be raised for the first time in this petition. Moreover, this presumption can be rebutted by evidence discovered afterwards--and there is no finding that petitioners used evidence that was discovered prior to the 90-day period.

WARD, Associate Justice.

HOLLENHORST, Acting P.J., and McKINSTER, J., concur.