HEATON v. KERLAND (1945)

This is an appeal from the judgment following the order sustaining a demurrer to an application for a lien against any judgment that might be recovered in an action for damages.

Plaintiff had received an injury in the course of employment and pursuant to a hearing before the Industrial Commission, was awarded compensation for said injury. The pertinent language of the findings of fact and the award is as follows.

‘Findings of Fact

‘1. Esther May Heaton, born February 26, 1913, while employed on January 30, 1941, as a masseuse, at Los Angeles, California, by Terry Hunt, doing business as Terry Hunt Health Club, sustained injury arising out of and occurring in the course of her employment, resulting in permanent disability as hereinafter described. (Italics added.)

‘At said time the employer's compensation insurance carrier covering said injury was Associated Indemnity Corporation, a corporation, and both employer and employee were subject to the provisions of the Workmen's Compensation, Insurance and Safety Laws of the State of California.

‘2. Said injury caused permanent disability consisting of loss of head and neck of radius of minor forearm; some instability of humeral-ulnar articulation on pushing motions; pain in elbow on motions against resistence; some atrophy of forearm muscles; aching pain on outer side of elbow and inner side of arm; tenderness over lower end of humerus and felxor-pronator and extensor-supinator muscles.’

Following the action of the Industrial Commission, respondent herein who was the beneficiary of the award, filed an action for damages against the doctors who had treated the injury, alleging malpractice. Before the trial thereof, appellant filed an application for a lien in said action, against any judgment that might be recovered, on the theory that part of the money paid to plaintiff by said lien claimant as insurance carrier, should be charged to the malpractice alleged in plaintiff's action. The court sustained a demurrer to said application without leave to amend and from the judgment of dismissal thereof that followed, petitioner appeals.

It is appellant's contention that, ‘the points involved in this appeal are as follows:

‘1. Does the award for permanent disability as fixed by the Industrial Accident Commission include within it the factors of disability caused by the original injury and also the factors caused by the malpractice.

‘2. Having paid to the plaintiff the amount set by the Industrial Accident Commission schedule for all disability suffered by the plaintiff, including that disability caused by the malpractice of the defendant, can the employer's insurance carrier assert a lien against the judgment in favor of plaintiff and against the doctor guilty of the malpractice for that portion of the dissability caused or resulting from the malpractice, or is plaintiff going to be allowed to recover twice for this same disability; once from her employer's compensation insurance carrier and once from the doctor.’

And in connection with the foregoing, it is argued that, ‘a compensation insurance carrier having paid for disability caused by the malpractice of the physician is entitled to recover from the offending physician for such loss.’ It is also argued that, ‘the factors of permanent disability included in the industrial accident award are specifically set out in the award and include the disability alleged and proven by respondent, including pain’. The language of the award referred to is hereinbefore quoted.

It is respondent's contention, on the other hand that, plaintiff's cause of action for malpractice was separate and distinct from, ‘her claim before the Industrial Commission’, and, that said alleged malpractice did not arise out of the course of employment hence, no lien attaches.

Appellant relies on Fitzpatrick v. Fidelity & Casualty Co., 7 Cal.2d 230, 60 P.2d 276, 277. There the court declares ‘As we shall hereinafter more fully point out, the aggravation of an industrial injury or the infliction of a new injury resulting from its treatment or examination is compensable under the provisions of the Workmen's Compensation Act and, therefore, within the exclusive cognizance of the Industrial Accident Commission. * * * In other words, where the recovery for an injury sustained by or the death of an employee comes within the provisions of the Workmen's Compensation Act, the Industrial Accident Commission has exclusive jurisdiction, and the superior court may not entertain an action for damages against the employer or his insurance carrier; the latter being subrogated to all the rights and duties of the employer.’ The foregoing has reference to actions against the employer or insurance carrier but, in the same opinion although dictum, the court declares that, ‘it is well settled, of course, that a doctor is liable for his own acts and an award to an employee or his dependents against the employer or his insurance carrier does not raise a bar to an action against the doctor for negligence or malpractice.’

The Fitzpatrick case was not an action against a third party based on malpractice but, was an action against the insurance carrier based on the alleged negligence of its servants and employees. Whether such servants were physicians or, at all qualified to examine the injury, as a result of which examination the patient died, does not appear. The language of the opinion quoted above that ‘the aggravation of an industrial injury or the infliction of a new injury resulting from its treatment or examination’, must be held to mean such an aggravation or injury as is likely to occur or, may possibly occur in such circumstances, even though the generally accepted procedure and technique are diligently followed. And it must be assumed, if the reasoning of the opinion is to be upheld, that the injury complained of was in such category.

Appellant also relies on Nelson v. Associated Indemnity Co., 19 Cal. App.2d 564, 66 P.2d 184. The Nelson case, which was an action against the insurance carrier, relied in part on the Fitzpatrick case, supra. In the Nelson case the plaintiff alleged malpractice on the part of the insurance carrier's physicians. Quoting from the opinion defendant (insurance carrier) ‘made the compensation payments to plaintiff for a period of approximately fourteen months, then discontinued them. Defendant stated that it would commence making the payments again if plaintiff would submit to an operation for the purpose of improving his condition. Plaintiff agreed to submit to the operation, which was performed by defendant's physicians. The operation was unsuccessful and, as a result of the unskillful and negligent manner in which the operation was performed, plaintiff's elbow was rendered worse, his disability was aggravated, and his disability is now permanent. Thereupon, plaintiff commenced this action for the purpose of recovering damages from the insurance carrier for the negligence of the physicians, alleged to be its agents, in performing the operation. The insurance carrier is the only defendant.’ It does not appear that the injury for which plaintiff sought damages occurred in the course of employment, nevertheless, the court held that ‘It is clear, therefore, that the new or aggravated disability caused by the negligent performance of the operation, alleged in the amended complaint, is a part of the disability for which the plaintiff is entitled to indemnity under an award from the Industrial Accident Commission and that the commission has exclusive jurisdiction over such claim against the employer and his insurance carrier.’ From the last-quoted language it would seem that the opinion in which it appears is in conflict with the constitution, the Workmen's Compensation Act, St.1937, p. 265, and with the decision of the Supreme Court in Pacific Coast Casualty Co. v. Pillsbury, 171 Cal. 319, 153 P. 24. See also Smith v. Golden State Hospital, 111 Cal.App. 667, 296 P. 127.

It should be emphasized that the action here considered is not one against either the employer or the insurance carrier. It is not an action seeking damages for the original injury. It is an action based on negligence, a subject with which the Workmen's Compensation Act is not concerned except as said act provides.

Sections 3852 and 3853 of the Workmen's Compensation Act St.1937, p. 273, refer to injuries sustained in the course of employment. Indeed the only injury over which the Industrial Accident Commission has any jurisdiction and the only injury in connection with which the legislature has any power to legislate by virtue of the provisions of Section 21 of Article XX of the Constitution, is an injury ‘incurred or sustained by the said workmen in the course of their employment.’ Pacific Coast Casualty Co. v. Pillsbury, supra. The first sentence of Section 3852 is as follows, ‘The claim of an employee for compensation does not affect his claim or right of action for all damages proximately resulting from such injury or death against any person other than the employer.’ (Italics added.) And the words ‘such injury’ manifestly refer to the injury incurred in the course of employment. It is in connection with these claims and rights of action for damages proximately resulting from ‘such injury’ that a lien is allowed as provided by the succeeding sections of the Act.

Plaintiff's cause of action was based on the negligence of defendants and, as heretofore noted, not on the original injury that had occurred in the course of employment. Although it was necessarily related thereto, the damage for which plaintiff sought recovery did not proximately result from the original injury but from the negligent acts of defendants. The defendants in the within action, in the circumstances, could not escape responsibility by attempting to shift the proximate cause back to the original injury if the evidence supports a finding to the contrary and attributes the injury and resulting damages to said defendants' negligent conduct. Nor could appellants, by the same process, successfully assert the lien contended for.

Appellant's contention that the award in question included ‘the factors of disability alleged to be caused by the malpractice’, is not without merit as a partisan argument but, in the circumstances, it cannot be assumed that the Industrial Accident Commission exceeded its jurisdiction. The language of the award, although general, does not recite that damages for malpractice are included.

The injury for which plaintiff sought damages did not occur in the course of employment and the damages did not proximately result from such an injury, hence, the right to file the lien was not available to petitioner.

For the foregoing reasons the judgment appealed from is affirmed.

DORAN, Justice.

YORK, P. J., and WHITE, J., concur.