WEBSTER v. WORKERS COMPENSATION APPEALS BOARD (1989)

Petitioners Robert Webster (applicant) and Subsequent Injuries Fund (Fund) seek review of an award of the Workers' Compensation Appeals Board (Board) apportioning liability for part of applicant's 100 percent permanent disability award to the Fund.   Applicant also seeks review of the 10 percent penalty awarded by the Board against the amount of permanent disability actually delayed.

Factual Background and Procedural History

Applicant, born February 28, 1944, sustained an industrial injury on January 28, 1982, to his internal organs, left lower extremity, and psyche as a result of gunshot wounds.   He was employed as an underwriter for Mission Insurance Company, then insured for workers' compensation by Aetna Casualty & Surety Company (respondent).   The industrial injury was severe.   Applicant suffered complete loss of bowel and bladder control, as well as left leg problems and psychological problems.   Nevertheless, after a period of total temporary disability, applicant returned to his work as an underwriter for Mission on August 16, 1982.

As a result of a prior injury suffered during the war in Vietnam, applicant's right leg had been amputated above the knee.   He walked with a prosthesis thereafter.   Prior to the industrial injury, he also had lost most of the vision in his left eye due to a cataract.

Following the evidentiary hearing, the workers' compensation judge (WCJ) described the factors of disability in the form of instructions and requested a recommended permanent disability rating from the rating specialist.¹  Pursuant to the WCJ's instructions, the rating specialist apportioned 371/414 percent of the overall rating of 100 percent to the preexisting nonindustrial disability.

In the findings and award dated September 11, 1987, the WCJ determined that the industrial injury caused a permanent disability of 623/434 percent, payable at $70 per week for 3301/414 weeks, commencing August 20, 1982.   As a result of the preexisting disability and the industrial disability, the WCJ found applicant 100 percent disabled.   The Fund was held responsible for the remaining 371/414 percent, payable at $105 per week for 3301/414 weeks, commencing August 20, 1982, and thereafter at $175 per week for life.

Under Labor Code section 4650,² applicant was entitled to payment of permanent disability advances commencing on August 20, 1982.   Respondent did not commence payments of $70 per week until April 3, 1985.   The WCJ imposed a 10 percent penalty pursuant to section 5814 on respondent's share of the benefits actually delayed between August 20, 1982, and April 3, 1985.

Applicant and the Fund petitioned for reconsideration.   The Board affirmed the WCJ's findings and award.   Reasoning that there was an overlap in factors of disability between the two injuries involving mobility of the lower extremities, the Board opined that the preexisting disability was not entirely independent of disability caused by the subsequent industrial injury.   Relying on County of Los Angeles v. Workers' Comp. Appeals Bd. (Crowe) (1980) 103 Cal.App.3d 877, 163 Cal.Rptr. 246, the Board found that the permanent disability payments were brought up to date before the award issued, and therefore, the penalty should only attach to the benefits actually delayed.

Apportionment and Fund Liability

 The issue before us is whether substantial evidence supports the decision of the Board on apportionment and the correlative issue of the Fund's liability.

Our responsibility on review is to determine whether the Board's decision is supported by substantial evidence in the light of the entire record.  (§§ 5952, subd. (d), 5953;  LeVesque v. Workmen's Comp. App. Bd. (1970) 1 Cal.3d 627, 637, 83 Cal.Rptr. 208, 463 P.2d 432.)   We must examine the facts to determine whether they establish apportionment in accord with proper legal principles.   (Franklin v. Workers' Comp. Appeals Bd. (1978) 79 Cal.App.3d 224, 235, 145 Cal.Rptr. 22.)

Section 4750 provides that an employer of a partially disabled employee shall not be liable, in the event of a subsequent injury to the employee, for the combined disability resulting from the employee's earlier injury or condition and the subsequent injury.³

The purpose of this statute is to encourage employers to hire disabled persons by preventing employers from being charged with permanent disability unrelated to the industrial injury.  (State Compensation Ins. Fund v. Industrial Acc. Com. (Hutchinson ) (1963) 59 Cal.2d 45, 52, 27 Cal.Rptr. 702, 377 P.2d 902;  Franklin v. Workers' Comp. Appeals Bd., supra, 79 Cal.App.3d at pp. 235–236, 145 Cal.Rptr. 22.)   Likewise, the Fund was established to encourage disabled persons to seek employment by requiring the Fund to pay the remainder of the combined permanent disability, resulting from the earlier injury or condition, when certain liability requirements are met.  (§ 4751;  Dow Chemical Co. v. Workmen's Comp. App. Bd. (1967) 67 Cal.2d 483, 494, 62 Cal.Rptr. 757, 432 P.2d 365;  State Compensation Ins. Fund v. Industrial Acc. Com. (Hutchinson), supra, 59 Cal.2d at p. 52, 27 Cal.Rptr. 702, 377 P.2d 902.)

Respondent's argument that apportionment cases are irrelevant if they do not involve Fund liability is without merit.   Regarding successive disabilities, it is well settled that the rules for determining a preexisting disability for the purposes of apportionment pursuant to section 4750 and for the purposes of Fund liability pursuant to section 4751 are exactly the same.   (State Compensation Ins. Fund v. Industrial Acc. Com. (Hutchinson), supra, 59 Cal.2d at p. 55, 27 Cal.Rptr. 702, 377 P.2d 902;  Franklin v. Workers' Comp. Appeals Bd., supra, 79 Cal.App.3d at pp. 239–240, 145 Cal.Rptr. 22.)

The parties do not dispute that applicant was permanently partially disabled within the meaning of section 4751 at the time of the subsequent industrial injury.   Nor do the parties contest that applicant was totally permanently disabled at the time of his disability rating.   The Board found that applicant had a mobility impairment from his preexisting leg amputation.   The subsequent disability resulted in an additional impairment of mobility because applicant must now use Canadian crutches, a walker, or a wheelchair for ambulation.   Thus, determined the Board, the preexisting disability was not entirely independent of the disability resulting from the industrial injury.

The Fund and applicant contend that the Board erred, claiming that the subsequent industrial injury, independent of the preexisting disability, produces a rating of 100 percent.   Notwithstanding the overlapping orthopedic disabilities, the Fund and applicant contend that the evidence supports a finding that the incontinence, caused solely by the subsequent industrial injury, rates 100 percent.

The appropriateness of the Board's apportionment turns on whether the 100 percent disability award results solely from the subsequent industrial injury, or whether it is a result of “overlapping disabilities” from the prior nonindustrial injury and the subsequent industrial injury.   For the reasons set forth below, we concur with applicant and the Fund that the Board erred in failing to find that the industrial injury results in a 100 percent permanent disability award without apportionment to the preexisting disability.

 Mercier v. Workers' Comp. Appeals Bd. (1976) 16 Cal.3d 711, 129 Cal.Rptr. 161, 548 P.2d 361, and State Compensation Ins. Fund v. Industrial Acc. Com. (Hutchinson), supra, 59 Cal.2d 45, 27 Cal.Rptr. 702, 377 P.2d 902, are the leading cases regarding apportionment of successive overlapping disabilities.   When an injured employee sustains successive injuries, the permanent disability from the subsequent injury is only compensated to the extent that the injured employee's ability to compete in the open labor market (i.e., permanent disability) is decreased beyond that due to the preexisting disability from the prior injury.  (Mercier, supra, 16 Cal.3d at pp. 714–716, 129 Cal.Rptr. 161, 548 P.2d 361;  Hutchinson, supra, 59 Cal.2d at pp. 52–56, 27 Cal.Rptr. 702, 377 P.2d 902.)   The mere occurrence of a second injury does not require apportionment.   In each case it must be determined whether the second injury impairs the employee's ability to perform work in the same manner as the first injury.  (Mercier, supra, 16 Cal.3d at p. 714, 129 Cal.Rptr. 161, 548 P.2d 361.)   If so, apportionment is proper, but only to the extent that the subsequent disability is not separate and independent, thereby overlapping with the preexisting disability.  (Ibid.)

 Injuries do not have to involve the same parts of the body for overlap to exist.  (Mercier v. Workers' Comp. Appeals Bd., supra, 16 Cal.3d at p. 714, 129 Cal.Rptr. 161, 548 P.2d 361.)   There are some overlapping factors of disability between the successive injuries herein.   The preexisting right leg amputation overlaps with the orthopedic factors of disability resulting from the subsequent industrial injury.   The Board, however, completely ignores the bowel and bladder disabilities.   These disabilities, caused solely by the industrial injury, are completely independent and separate from the disabilities resulting from the injury sustained in Vietnam, and the loss of vision in one eye.

Applicant testified substantially regarding the incontinency.   The WCJ summarized this testimony:  “In the industrial injury of January 28, 1982, several parts of his [applicant's] body were involved.   The major problem is the lack of bladder and bowel control.   He has no voluntary bowel function at all.   He has an ostomy [colostomy] device which includes an adhesive wafer and a little plastic bag․  He wears a diaper all the time.   The colostomy fills up its bag.   In preparing for the day he has to make sure that his appliances are going to last all day and starts out with them empty․  [¶] For his urinary function he tries to maintain a reasonable schedule to keep his bladder empty.   He has no voluntary control here either․  He uses a rubber catheter to empty the bladder and he has to make sure there is no leakage․  There is always some leakage and he must make sure that the bladder is empty before it fills up the appliances.   His sensory nerves in this area are not always working․  Anything that causes stress to the abdominal muscles such as a sneeze or cough can cause a filling of the bag.   Also leaning over or lifting will cause stress incontinence․”  (Emphasis added.)

The rating specialist testified that he apportioned disability solely because the rating instructions from the WCJ requested that he do so.   He also testified that the loss of bowel and bladder control was a separate ratable factor, and rated 100 percent.   Even in the absence of the orthopedic disabilities, the other factors of disability from the industrial injury, as described by the WCJ, would rate 100 percent.   Furthermore, the rating specialist testified that incontinence does not overlap with any of the other factors in the rating instructions from the WCJ, and that normally, it is presumed to be 100 percent.   His testimony was uncontradicted and unimpeached.

While the rating specialist is not a trier of fact, and the Board is not bound by his recommendation, his opinion is expert testimony.  (Johns–Manville Products Corp. v. Workers' Comp. Appeals Bd. (1978) 87 Cal.App.3d 740, 749, 151 Cal.Rptr. 215.)   The evidence decisively demonstrates that the factors involving incontinency alone entitle applicant to a 100 percent disability rating for the subsequent industrial injury.   Although clearly separate and independent from the prior disability, these factors are not mentioned by the Board.   In effect, the most significant portion of applicant's industrial disability is ignored.   The record is completely lacking in explanation as to how the incontinency affects applicant's ability to perform work in the same manner as did the loss of vision in one eye and the amputation to one leg.   (Mercier v. Workers' Comp. Appeals Bd., supra, 16 Cal.3d at p. 714, 129 Cal.Rptr. 161, 548 P.2d 361;  Newman v. Workers' Comp. Appeals Bd. (1984) 152 Cal.App.3d 219, 222–223, 199 Cal.Rptr. 422.)

If the subsequent injury alters the ability to compete in the labor market or earning capacity, it is to be compensated to the extent of the alteration.  (Mercier, supra, 16 Cal.3d at p. 714, 129 Cal.Rptr. 161, 548 P.2d 361;  Newman, supra, 152 Cal.App.3d at p. 223, 199 Cal.Rptr. 422.)   Consequently, applicant is entitled to a 100 percent rating for the subsequent industrial injury by application of the Rating Schedule to the factors of disability which do not overlap.  (Johns–Manville Products Corp. v. Workers' Comp. Appeals Bd., supra, 87 Cal.App.3d at pp. 751–752, 151 Cal.Rptr. 215;  cf. State Comp. Ins. Fund v. Workers' Comp. Appeals Bd. (Gaba) (1977) 72 Cal.App.3d 13, 17, 139 Cal.Rptr. 802.)

To allow the Board decision to stand would result in discrimination against disabled employees.   We would in effect be advocating that an employer pay 100 percent to an employee who had not been previously injured, but pay less to an employee who had some prior, though unrelated, disability.

 If successive injuries produce separate and independent disabilities then each is properly rated separately without concern for the theoretical 100 percent assigned to “total” disability, and each may be considered in determining liability of the Fund under section 4751.  (Mercier v. Workers' Comp. Appeals Bd., supra, 16 Cal.3d at p. 714, 129 Cal.Rptr. 161, 548 P.2d 361;  Moyer v. Workmen's Comp. Appeals Bd. (1972) 24 Cal.App.3d 650, 657, 100 Cal.Rptr. 540.) ⁴  The public policy of hiring disabled employees is then fulfilled while not denigrating the disabled or unjustly enriching an employer at the expense of the taxpayers.  (Newman v. Workers' Comp. Appeals Bd., supra, 152 Cal.App.3d at p. 223, 199 Cal.Rptr. 422.)

Penalty Calculation

 The issue before us is not whether a 10 percent penalty should be assessed but rather how it should be calculated.

As pertinent, section 5814 provides:  “When payment of compensation has been unreasonably delayed or refused, either prior to or subsequent to the issuance of an award, the full amount of the order, decision or award shall be increased by 10 percent․”  (Emphasis added.)

Applicant contends that Gallamore v. Workers' Comp. Appeals Bd. (1979) 23 Cal.3d 815, 153 Cal.Rptr. 590, 591 P.2d 1242, mandates an assessment of the penalty against the entire award of permanent disability.   Relying on the interpretation of Gallamore in County of Los Angeles v. Workers' Comp. Appeals Bd. (Crowe), supra, 103 Cal.App.3d 877, 163 Cal.Rptr. 246, the Board limits the penalty to the permanent disability benefits actually delayed from August 20, 1982, through April 3, 1985.

Gallamore clearly held that “the penalty is to be computed by assessing 10 percent of the entire amount ultimately awarded for the particular class of benefit which has been unreasonably delayed or withheld.”   (Gallamore v. Workers' Comp. Appeals Bd., supra, 23 Cal.3d at p. 827, 153 Cal.Rptr. 590, 591 P.2d 1242.)   In Gallamore, the employer failed to pay any permanent disability advances before an award issued.   In Crowe, the employer delayed permanent disability advances for approximately three and one-half months.   However, unlike Gallamore, the employer in Crowe voluntarily brought payments of permanent disability up to date and continued to make timely payments prior to the issuance of the award of a total permanent disability.   Relying on Gallamore, the Crowe court held that the penalty was limited to the permanent disability benefits actually delayed.  (County of Los Angeles v. Workers' Comp. Appeals Bd. (Crowe), supra, 103 Cal.App.3d at p. 884, 163 Cal.Rptr. 246.)

The interpretation of Gallamore in Crowe is erroneous, as is the Board's reliance on Crowe in the case before us.  Gallamore leaves no doubt that a penalty is to be imposed against the entirety of a particular benefit when any part of that benefit has been unreasonably delayed under section 5814.   (Gallamore v. Workers' Comp. Appeals Bd., supra, 23 Cal.3d at p. 827, 153 Cal.Rptr. 590, 591 P.2d 1242.)   Whether a delay is pre-award or post-award or involves a de minimus amount is irrelevant.  (Ibid.)

The error in Crowe, as well as that of the Board herein, results from a misinterpretation of pre-Gallamore cases concerning penalty calculation under section 5814, cited with approval in Gallamore.   Accordingly, it is necessary to examine several pre-Gallamore decisions which were relied on by Crowe, in order to understand the misapplication of the law by the Board and Crowe, and to properly apply Gallamore to the present matter.

Prior to the Supreme Court's decision in Gallamore, appellate courts struggled with the meaning of the language in section 5814 applying the 10 percent penalty to “the full amount of the order, award or decision.”   Repeatedly, courts were faced with situations where a delay was to one benefit, such as temporary disability, but a literal reading of section 5814 required the penalty to be assessed against all benefits ultimately awarded, including those that were not unreasonably delayed.

In Manning v. Workmen's Comp. App. Bd. (1970) 10 Cal.App.3d 655, 89 Cal.Rptr. 76, the applicant was awarded continuing temporary disability.   After two years of temporary disability payments, an award for permanent disability issued.   The carrier delayed in the payment of permanent disability.   The applicant sought to have the penalty assessed against the permanent disability, and the temporary disability paid pursuant to the prior award.   Emphasizing that permanent disability is distinct from temporary, the court held that it would be unreasonable to construe section 5814 as requiring imposition of the penalty on the previously paid temporary disability benefits which had not been delayed.  (Id., at p. 658, 89 Cal.Rptr. 76.)

Garcia v. Workmen's Comp. Appeals Bd. (1972) 6 Cal.3d 687, 100 Cal.Rptr. 149, 493 P.2d 877, presented a reverse situation from that in Manning.   In Garcia, the Supreme Court refused to assess a 10 percent penalty on permanent disability awarded when the delay involved payment of temporary disability under a prior award.   The court held that a delay with respect to making payment under a prior award for one type of benefit does not entitle the applicant to have the penalty applied to payments under the other award “for a different type of benefit where there has been no delay with respect to the latter payments.”  (Id., at p. 690, 100 Cal.Rptr. 149, 493 P.2d 877.)

The Garcia–Manning rationale was extended in Daniels v. Workmen's Comp. Appeals Bd. (1972) 27 Cal.App.3d 504, 104 Cal.Rptr. 129, to encompass another situation where a delay of temporary disability had occurred prior to the issuance of an award.   The award included temporary, as well as permanent disability and other benefits.   The court refused to assess the penalty against the entire award because none of the other benefits covered by the award had been unreasonably delayed.

In State Comp. Ins. Fund v. Workmen's Comp. Appeals Bd. (Sturm) (1973) 35 Cal.App.3d 374, 110 Cal.Rptr. 757, like Daniels, the carrier delayed payment of pre-award temporary disability benefits.   Following Daniels, the court held that the penalty should be assessed only against the temporary disability, rather than the permanent disability and collateral benefits awarded at the same time as the penalty.

Within the context of these decisions, the Supreme Court sought in Gallamore “to clarify the effect of section 5814 in situations involving ․ preaward delays in different types of benefit payments.”  (Gallamore v. Workers' Comp. Appeals Bd., supra, 23 Cal.3d at p. 821, 153 Cal.Rptr. 590, 591 P.2d 1242.)   The court stated:  “[W]here there are severable classes of benefits included in a single decision or award it is more fair and reasonable to assess penalties only upon the type of benefits, the payment of any part of which has been delayed, rather than to impose them as well upon benefits which have been promptly and entirely paid.   Consistent with Garcia, Daniels, and State Comp. Ins. Fund [Sturm], we adopt the more moderate construction of the statutory language, holding that the phrase ‘full amount of the ․ award’ in section 5814 refers to the full amount of the award for the particular class of benefit delayed or withheld.   The penalty should not be assessed against other types of benefits despite their inclusion in a single decision or award containing multiple benefits․  [¶] The statutory language, referring to the ‘full’ amount of an award makes no provision for credit for any partial payments made under compulsion of an award.  [Citation.]  Thus, if any part of a specific benefit has been delayed or withheld, the penalty is imposed against the entirety of that benefit.”  (Id., 23 Cal.3d at pp. 826–827, 153 Cal.Rptr. 590, 591 P.2d 1242, emphasis added.)

In Gallamore, Daniels was recognized as an extension of the Garcia–Manning rationale, and along with Sturm, was cited with approval.  (Gallamore v. Workers' Comp. Appeals Bd., supra, 23 Cal.3d at pp. 825–827, 153 Cal.Rptr. 590, 591 P.2d 1242.)   Consistent with its “class of benefits” analysis, the court recognized that these cases stood for the principle that a “penalty should not be applied to those types of benefits which were neither delayed nor refused.”  (Id., at p. 826, 153 Cal.Rptr. 590, 591 P.2d 1242.)

Relying on Gallamore 's approval of the “Daniels–Sturm corollary of the Garcia–Manning rationale,” Crowe assessed a penalty against the permanent disability benefits actually delayed.  (County of Los Angeles v. Workers' Comp. Appeals Bd. (Crowe), supra, 103 Cal.App.3d at p. 884, 163 Cal.Rptr. 246.)  Crowe 's analysis is flawed and cannot be reconciled with Gallamore.   The result in Crowe, as well as the result reached by the Board in the matter before us, can only be reached by a perfunctory reading of Gallamore, insomuch as it purports to follow the Daniels–Sturm and Garcia–Manning line of cases.   The reasoning of the Crowe court, like that of the Board herein, can only be justified when the holdings of the pre-Gallamore cases are cited as precedent outside of the context of Gallamore.⁵  Clearly, the cases relied upon by Crowe were cited in Gallamore “for a narrower purpose ” than that of Crowe, and “to the extent that their holdings conflict with the rule stated by the Supreme Court, they are no longer persuasive authority.”  (Toccalino v. Workers' Comp. Appeals Bd. (1982) 128 Cal.App.3d 543, 556, 180 Cal.Rptr. 427.)

The policy considerations underlying section 5814 do allow for reasonable applications of Gallamore.   Section 5814 is both penal and remedial.   (Davison v. Industrial Acc. Com. (1966) 241 Cal.App.2d 15, 18, 50 Cal.Rptr. 76.)   Deterrence—the remedial aspect—is met in the first instance by computing the amount of the penalty on the basis of the entire class of benefits delayed, as mandated by Gallamore.   Certainly, where there are long delays, or perhaps short but unexplained or inexcusable delays, deterrence is better served by levying the penalty against the entire class of the benefit delayed.   This makes sense in light of the purpose behind deterrence, which is to encourage the return of injured employees to their employment as quickly as possible.  (Ibid.)

Compliance with the law, or encouraging resumption of benefits after a short delay,—the penal aspect—may in certain circumstances be better served by imposing the penalty only on the amount actually delayed.   An employer would have little incentive to resume, for example, permanent disability advances after a minor delay, if a penalty was going to be assessed ultimately against the entire award of permanent disability.

We cannot ascertain from the limited facts in Crowe whether this reasoning might have applied in that case.   However, it certainly provides a more reasonable explanation for the result reached in Crowe, given the fact that the employer voluntarily paid permanent disability advances prior to the award for almost one year after the delay of three and one-half months.   Furthermore, it takes into consideration the Supreme Court's desire in Gallamore that the Board should proceed in penalty cases “with a view toward achieving a fair balance between the right of the employee to prompt payment of compensation benefits, and the avoidance of imposition upon the employer or carrier of harsh and unreasonable penalties.”  (Gallamore v. Workers' Comp. Appeals Bd., supra, 23 Cal.3d at p. 828, 153 Cal.Rptr. 590, 591 P.2d 1242.)

In the case before us, respondent offers no reason for a lengthy delay of approximately two and one-half years before it initiated permanent disability payments.   This significant delay, alone, distinguishes the present matter from Crowe.   Under these facts, Gallamore, as well as the policy considerations of section 5814, mandate a penalty assessment against the entire permanent disability award.

 We would not, however, include the pre-award benefits voluntarily and timely paid when computing the penalty in the instant matter.  (Gallamore v. Workers' Comp. Appeals Bd., supra, 23 Cal.3d at pp. 827–828, 153 Cal.Rptr. 590, 591 P.2d 1242;  Garcia v. Workmen's Comp. Appeals Bd., supra, 6 Cal.3d at p. 690, fn. 2, 100 Cal.Rptr. 149, 493 P.2d 877;  State Comp. Ins. Fund v. Workers' Comp. Appeals Bd. (La Favor) (1981) 117 Cal.App.3d 143, 147, 172 Cal.Rptr. 557.)   We disagree with Toccalino v. Workers' Comp. Appeals Bd., supra, 128 Cal.App.3d at p. 556, 180 Cal.Rptr. 427, to the extent that it does not allow a case-by-case assessment in this regard.   We do not see where any purpose underlying section 5814 is served herein by levying the penalty against the voluntary and timely pre-award payments, which commenced prior to the filing of the petition for penalty by applicant.  Gallamore, however, explicitly directs that payments of permanent disability made timely, but under compulsion of an award, are not exempt from the penalty assessment.   (Gallamore, supra, 23 Cal.3d at p. 827, 153 Cal.Rptr. 590, 591 P.2d 1242.)

The 10 percent penalty should be computed against the weekly payments of total permanent disability, commencing August 20, 1982, through April 3, 1985, and from September 11, 1987, the date of the award, to the present and continuing for life.

For the reasons set forth above, the Board's decision is annulled and the cause is remanded to the Board for further proceedings consistent with the views expressed herein.⁶

FOOTNOTES

1.   The rating instructions stated, as follows:  “Disability consisting of denervation of bladder, anesthesia of pelvis region including the rectum, scrotum, penis and portions of left leg resulting in impotency and no bladder and bowel control;  drop foot necessitating foot drop brace (double upright short leg brace);  cramping over dorsom [sic ] of left leg, extending down into the toe with a dull discomfort intermittently sharp pain into the calf and thigh.   Necessity to use Canadian [Canadian] crutches, walker or wheelchair for ambulation.  [¶] Depression resulting in slight psychiatric disability.  [¶] Consider that prior to this injury, applicant had an above-the-knee amputation on the right lower extremity, protheses [sic ] possible and loss of vision of the left eye.   Consider that applicant had rehabilitated himself sufficiently so that he was able to work in the above capacity full-time.”

2.   All further statutory references are to the Labor Code unless otherwise specified.

3.   Section 4750 reads:  “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 later 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 for the combined disability, but only for that portion due to the later injury as though no prior disability or impairment had existed.”

4.   Moyer v. Workmen's Comp. Appeals Bd. (1972) 24 Cal.App.3d 650, 100 Cal.Rptr. 540, relied on by respondent to support apportionment, is easily distinguished.   It involved a subsequent industrial heart disability which clearly overlapped with a preexisting nonindustrial heart disability.   The court found that the employee not only had a preexisting heart condition, but that it was symptomatic.   Furthermore, the evidence strongly suggested that the employer knew of the preexisting heart problems, but nevertheless retained the applicant in employment.   The court emphasized:  “If an employer is to be held liable under these circumstances for the full disability resulting from a subsequent heart attack, industry would be motivated to discharge an employee at the first sign of developing cardiovascular disability.   It is precisely this that the Subsequent Injuries Law was meant to prevent.”  (Id., at p. 663, 100 Cal.Rptr. 540.)

5.   In addition to Crowe, the Board also relies on Vogh v. Workmen's Comp. App. Bd. (1968) 264 Cal.App.2d 724, 70 Cal.Rptr. 722, another pre-Gallamore case, as support for its holding that the penalty should be assessed only against the benefits actually delayed.  Vogh, like the other pre-Gallamore cases, is easily distinguished when read within the context of Gallamore.In Vogh, the employer voluntarily and timely paid temporary disability before the issuance of an award which included the period of temporary disability previously paid, as well as the permanent disability owing.   After the award, the employer delayed in paying the permanent disability and the Board assessed a penalty against the entire permanent disability award, including the life pension.   The applicant contended that the penalty should be assessed against the temporary disability as well because it was part of the award.   The court refused, stating that “ ‘[i]t is obviously an incentive to the making of voluntary payments that any future penalty will not extend to them.’ ”  (Id., at p. 728, 70 Cal.Rptr. 722, quoting Langer v. Workmen's Comp. App. Bd. (1968) 258 Cal.App.2d 400, 406, 65 Cal.Rptr. 598.)

6.   We find no merit in applicant's dispute regarding the Board's decision that applicant is not entitled to full salary and temporary disability for the same period.   There is no discernible dispute over the facts.   Applicant received full salary during his period of temporary disability.   As is customary, respondent's payment of temporary disability was signed over to the employer.   The record is not clear regarding whether applicant at any time received both full salary and temporary disability indemnity while he was disabled from his job and entitled to temporary disability.   The Board indicates that applicant is not to receive both full salary and temporary disability for the same period.   Applicant, respondent, the WCJ, and the Board agree that this is the applicable law.   We find no issue to review.

WHITE, Presiding Justice.

BARRY–DEAL and STRANKMAN, JJ., concur.