LIBERTY MUT INS CO v. INDUSTRIAL ACCIDENT COMMISSION (1948)

The sole question presented here is whether there is any evidence to support the percentage of disability of one Joe Serafin (hereinafter referred to as applicant) which the commission found.

Applicant, on July 5, 1945, sustained an injury to his right hand while working in the course of his employment as a laborer. The injury consisted of a blister which subsequently became infected. Certain temporary disability indemnity was paid him by petitioner up to March 17, 1946. Thereafter he worked for approximately nine months, and then applied to the commission for an informal permanent disability rating. The acting assistant medical director of the commission examined him on January 6, 1947, and on his report an informal rating of permanent disability of 8 1/2% was made. On March 6, 1947, applicant applied for an adjustment of claim. A hearing was had and a permanent disability rating of 32 1/4% made. The carrier petitioned for a rehearing on the ground that there was no evidence to support the rating.

The question of the amount of permanent disability is one of fact to be determined by the commission. ‘It is, of course, well settled that this court will not annul an award of the commission where there is substantial evidence to support the commission's finding and order. [Citing cases.]’ Hartford Accident & Indemnity Co. v. Industrial Acc. Com., 202 Cal. 688, at page 692, 262 P. 309, 310, 58 A.L.R. 1392.

We have searched the record and are unable to find any substantial evidence to support the finding of the degree of permanent disability. The referee's findings as to the permanent disability were: ‘* * * limitation of flexion of distal joint of major thumb to 35/58; limited flexion of fingers, tips of index and middle fingers failing to touch palm on active motion by 2 7/8″ and 1 3/4″, ring and little fingers touching palm approximately 1″ proximal to normal position; some slight loss of extension of middle and distal joints of ring finger; grip of hand being 30/165; occasional constant sharp pain from proximal joints of middle and ring fingers up to elbow, especially when hand is tired and warm causing dropping of objects; some thickening over proximal joint of index finger; some pain on pressure over proximal joint of ring finger.’ No complaint is made of this finding except as to the grip figure. The main complaint is the degree of disability based on the finding. This degree is based primarily upon loss of grasping power in the hand.

Between January 7, 1946, and January 7, 1947, to determine the amount of loss of grasping power, applicant submitted to certain dynamometer tests. A dynamometer is an instrument used by doctors to measure a loss of grasping ability or weakness in one hand. The opposite hand is measured as a comparative. As will be seen later, there is a variance in the intensity of the instruments used by the various doctors. Inasmuch, however, as the units as calibrated on them do not represent fixed units of force (i. e., foot pounds, kilograms, etc.), the degree of intensity is not important. The figures are important only in comparison of the injured hand with the other hand.

Ten tests were made by Drs. Sales and McCarthy, apparently doctors for the carrier. These averaged 77/114. (Grasping power of right hand 77, compared to 114 of the left hand.) The figure showing the greatest weakness in the injured hand was 50/100 and the least 85/100. The test made by the assistant medical director upon which the original 8 1/2% rating was based showed 110/165. After the formal application for rating, tests were made by three other doctors. The test made by Dr. Silberman showing greatest loss of power read 25/80. Dr. Cline, one of the carrier's doctors, testified that applicant purposely was not applying pressure, and hence he could make no determination. Dr. Harrison, assistant medical director of the commission (not the same director who made the previous tests) gave as the figure showing lowest strength in the hand 15/165. It will be noted that this figure is by far the lowest of all the figures given by the various doctors. As to the amount of strength left in applicant't injured hand, Dr. Harrison reported, however, ‘It is the examiner's impression that this applicant definitely does not put forth his best efforts in grasping either the instrument or the examiner's hand. I also feel he voluntarily inhibits motions of the fingers.’ None of the doctors, other than Dr. Cline and Dr. Harrison, reported and holding back in the tests by applicant.

In the findings and award by the referee the permanent disability is 32 1/4%. This figure was arrived at by the commission's rating expert based upon a grip figure of 30/165, which in percentage gives a rating of 31 1/4% to which he added 1% for the occasional sharp pain testified to by applicant. No complaint is made of the 1% allowance for pain, but it is contended that there is no basis for the figure of 30/165 (or in percentage 31 1/4%). The rating expert received this figure from the referee, who reported that he arrived at it by taking the highest figure of Dr. Harrison, 15/165, and then ‘He [Dr. Harrison] thought the applicant was exaggerating the loss of grasping power, but naturally he could not say how much, so I simply decided that the applicant was probably doing half as well as he could, and therefore fixed the loss of grasp at 30/165.’ (Emphasis added.) In other words, the referee just doubled the finding of Dr. Harrison. In none of the test figures given by any of the doctors does the figure 30/165 appear, nor is there any figure other than Dr. Harrison's 15/165 (which the referee declined to accept as given) which gives anywhere near as great a loss of grasping power. Even Dr. Silberman, applicant's own doctor, found him to have a grasping power over twice that found by the referee.

It is obvious that there is no evidence to support the amount of disability found by the referee, unless it can be held that the referee had the right to estimate the amount of holding back the applicant was doing when the tests were being made by Dr. Harrison. The referee was not present, and it is plain that his estimate is mere guess-work.

The referee reported: ‘I had just as much right, perhaps more authority, to determine the doctor's feelings that the man was not honestly doing the best he could to grasp the dynamometer or hand were not as persuasive to me as the man's sworn testimony based on a general estimation of his capacity for veracity that he had done the best he could, and that there was some difficulty in the hand, not immediately perceivable by these examining doctors, responsible for the loss of grasping power; that I would hesitate to believe that a carpenter of this man's age and general appearance, whose reputation for veracity was unchallenged, and who could make the money he could now make as a carpenter, would claim the disability he claims unless he either hand it or believed he had it, which amounted to the same thing as not having the grasping power.’ It would appear from the foregoing that the referee did not believe Dr. Harrison's statement that the applicant was holding back in the tests. Of course, a referee has the right to determine the credibility of any witness, and had the referee based his finding on the fact that the applicant was doing his best, and accepted Dr. Harrison's figure of 15/165, there would be evidence to support such finding. But while the referee stated that he thought the applicant was not holding back in the tests, he made his finding based upon the fact that he actually was holding back to the extent of 50%. He might just as well have guessed the percentage at 10% or 500%. There is no basis in the evidence for determining to what extent the applicant was not trying.

There can be no doubt that the commission has the power to choose between expert medical opinions. Liberty Mut. Ins. Co. v. Industrial Acc. Comm., 73 Cal.App.2d 555, 166 P.2d 908. But that was not done here. Had the referee taken any figure of any of the doctors, his action would have been supported.

Respondent commission contends that since Dr. Harrison gave no reason for his impression that the applicant was not fully exerting himself, the referee could give such weight to his opinion as he saw fit. Gazzera v. City and County of San Francisco, 70 Cal.App.2d 833, 838, 161 P.2d 806. But Dr. Harrison did not attempt to determine the amount of grasping power lost due to lack of effort, but merely gave the machine ratings, and his conclusion that the applicant was not trying. Respondent takes the position that ‘The referee * * *, being the exclusive judge of the credibility of the employee as a witness, comes very near to being an expert’ and compares the referee's observation of the applicant to the situation where a referee's inspection of premises where an injury has occurred may justify a finding, as in Ethel D. Co. v. Industrial Acc. Comm., 219 Cal. 699, 28 P.2d 919. Respondent also relies upon Employer's etc. Corp. v. Industrial Acc. Comm., 42 Cal.App.2d 669, 109 P.2d 716, which holds that the commission could base an award for pain on the testimony of the injured man alone, even though opposed by the testimony of the medical experts, as ‘the injured person naturally was in the best position to tell whether he was suffering pain’ (42 Cal.App.2d at page 671, 109 P.2d at page 718). Also, in County of Los Angeles v. Industrial Acc. Comm., 14 Cal.App.2d 134, 57 P.2d 1341, it was held that the commission had the right to determine the question whether an applicant had suffered permanent injuries even though no physician was asked the question whether in his opinion the injuries were serious. These cases, however, are not authority for the proposition that a referee may determine the extent to which a person is not trying in making machine tests taken out of his presence. Conditions disclosed in an inspection of premises are ordinarily matters property ascertainable by a layman. Pain is a matter alone known to the individual himself. The rule of the County of Los Angeles case, supra, is not that in every instance the commission may determine the permanency of an injury in the absence of expert testimony, but that ‘Manifestly there are many cases in which laymen can well determine the permanency of an injury, such as the loss of sight or limbs. Innumerable cases might be mentioned as coming within this category.’ (14 Cal.App.2d at page 137, 57 P.2d at page 1342). In that case there was a lengthening of a leg due to the injury. There is considerable difference between determining the permanency of a condition visible or described to the referee, and trying to determine how much an individual did not try in a test which the referee never saw.

The extent of loss of grasping power is a question which is one of those referred to as ‘one within the knowledge of experts only, and is not within the common knowledge of laymen.’ William Simpson Const. Co. v. Industrial Acc. Comm., 74 Cal.App. 239, 243, 240 P. 58, 59. It requires tests by medical men not only by instruments but by examination and observation of the injured hand, aided by scientific knowledge of the effect such injuries would have on the normal use of it. It is similar to the situation in Simmons Co. v. Industrial Acc. Comm., 70 Cal.App.2d 664, 161 P.2d 702, where the court held that while the observations of a referee in viewing a mechanical device may be considered as evidence, the observations of a complicated machine by a referee who was not shown to be a mechanical expert did not support his finding of the necessity for a safety guard for the machine. But not even a medical man, by merely looking at an individual, could tell how much effort he held back at a machine test at which such expert was not present.

Stress is laid upon the fact that since the referee could have declined to believe Dr. Harrison's statement as to lack of effort by applicant, but could have accepted the doctor's figure of 15/165, which would have meant a loss of twice the grasping power, and a doubling of the award, petitioner has not been prejudiced by the rating actually made, and therefore cannot complain. There are two answers to this: First, while the referee, in one portion of his report, stated that he could have disbelieved Dr. Harrison, yet he actually did not disbelieve him, for he made a finding based on the fact that the applicant was only half trying, and to justify the referee in accepting the lower figure, he would definitely and completely have to disbelieve Dr. Harrison's statement. Secondly, the conclusion of the commission must be based on evidence. Hartford Accident & Indemnity Co. v. Industrial Acc. Comm., 140 Cal.App. 482, 35 P.2d 366; Market St. Ry. Co. v. Industrial Acc. Comm., 193 Cal. 178, 182, 224 P. 95. The record shows that no matter upon what evidence the referee might have based his finding, he actually did base it on his estimate, actually, not of the applicant's loss of grasping power, but of the amount of holding back applicant did while undergoing Dr. Harrison's tests.

In any event, the petitioner is entitled to have an award against it made on substantial evidence rather than on what the court in Simmons Co. v. Industrial Acc. Comm., supra [70 Cal.App.2d 664, 161 P.2d 702] in considering a situation somewhat similar to the one here, characterized as ‘merely a surmise and conjecture’ (70 Cal.App.2d at page 670, 161 P.2d at page 705), even though such award is more favorable to it than other evidence in the case. Particularly is this so where to consider that there is other evidence more favorable to petitioner, the court must assume that the referee would have believed Dr. Harrison as to the figures of the tests, but disbelieved him in other particulars.

It is true that the decision in this case is that of the commission, for on the same day the referee's findings and award were filed, a panel of the commission approved and confirmed it, and also denied a petition for a rehearing. Whether the commission exercised an independent judgment on the facts does not appear. (It passed upon some 35 other matters the same day.) The real question here is not whether we assume that the commission adopted the reasoning of the referee as disclosed in his report, but whether the finding of the commission finds any support in the evidence. Inasmuch as there is no evidence to support the degree of disability fixed by the commission, but the referee's explanation does fit it, we assume the commission (if it considered the matter at all) adopted the referee's reasoning. However, this opinion is not based on that assumption, but on the absence of any evidence to support the commission's finding. As said in Market St. Ry. Co. v. Industrial Acc. Comm., supra [193 Cal. 178, 182, 224 P. 95, 96]: ‘There is in this case that entire lack of evidence to support the finding on which the award was made, which subjects the proceeding to a review by this court [Citing cases.]’

The award is annulled, and the proceeding is remanded to the Industrial Accident Commission for such further proceedings and order as are not inconsistent with the views herein expressed.

I dissent.

In this case there was evidence, substantial in nature, to support a disability rating of 62 1/2%, and other substantial testimony to support a disability rating of 100%. Yet the majority opinion, on the petition not of the employee but of the insurance carrier, holds that a disability rating of 31 1/4% plus 1% for pain is not supported. Thus, according to the majority, the larger does not include the smaller, the whole does not include the parts of which it is made! This somewhat amazing conclusion is based upon the premises that no doctor testified to the exact figure that would have justified a 31 1/4% rating, and that the referee in his report, but not in his proposed findings, mentioned the reasoning by which he had arrived at a recommendation of 31 1/4%. It is then conclusively assumed that the panel of the Commission adopted this reasoning, and this in spite of the fact that the record shows that the panel decided this case and not the referee. The record also shows that on petition for rehearing addressed to the Commission the petitioner made every point now made before this court, and the Commission denied the rehearing, thus demonstrating that the Commission exercised an independent judgment on the facts.

The rule of law applicable to this case is clear. Where the evidence is susceptible of conflicting inferences the finding of the Commission is final and the courts have no power to interfere. California Shipbuilding Corp. v. Ind. Acc. Comm., 27 Cal.2d 536, 165 P.2d 669. The majority, while giving lip service to this rule, have simply disregarded it. The record shows that this employee was injured in an industrial accident on July 5, 1945. Admittedly he is disabled as a result of his industrial injury. Because of such disability he has been forced to give up his employment as a carpenter. He testified, and he is certainly competent to testify as to the degree of his disability, that he was unable to do carpenter work; that not only could be not close the fist of his right hand, but, when the hand became warm or moist, a sharp spasm occurred which caused him to drop any thing he was then holding. Many doctors made tests of the grasping power of that hand compared with the other. Those tests all showed some disability ranging from a small percentage in loss of grasping power to a 100% of loss of grasping power. Dr. Harrison fixed the loss in grasping power at a figure that would have warranted a 62 1/2% rating. But loss of grasping power was only one of seven or eight other factors that the record shows was considered by the Commission in fixing the rating. Even at the last hearing of this case, held nearly two years after the injury, this man's hand was still swollen. It is true that the referee prepared a report for the benefit of the Commission, but in that report he summarized all of the evidence that had been introduced. The majority have seen fit to quote that portion of this report that indicates that the referee reached a rating of 31 1/4% disability by dividing Dr. Harrison's estimate of 62 1/2% by two, assuming the employee was only half trying. The majority assume that this report of the referee necessarily is binding on the Commission, necessarily reflects the reasoning of the Commission, and demonstrates that the Commission's finding is based on surmise or conjecture. These are all unjustified assumptions. It needs no citation of authority to support the statement that under the Constitution and statutes of this state the Commission, or a panel of the Commission, is the body that renders decisions. The referee prepares a report to the Commission and recommends findings. The Commission is empowered, and, under the law required, to exercise an independent judgment on the facts. It can disregard the proposed findings and makes its own findings. Where there are conflicts it can find contrary to the recommendation of its referee, and frequently does so. It is not bound by the reasoning contained in the report of the referee. Therefore, the real question in this case is not the main question discussed by the majority, namely, whether the recommendation and reasoning of the referee as disclosed in his report are supported, but whether the finding of the Commission that this man was disabled to the extent fixed by its finds support. If this point be considered, there is no doubt at all. The employee testified as to facts which, if believed, showed a total loss of use of his right hand in the carpenter trade. The doctors, by mechanical tests, found a loss of grasping power ranging from 100% down to a few per cent. The Commission has seen fit to fix the disability at 31 1/4% plus 1% for pain. It was permitted to fix the disability anywhere within the range of the testimony, considering not only loss of grasping power as disclosed by mechanical tests, but all the other testimony in the record. The majority have assumed, without any justification whatever, that the findings of the Commission are based solely on mechanical tests of Dr. Harrison, reduced one-half. The findings of the Commission, as distinguished from the report of the referee, do not disclose that this was the theory of the Commission. That body had before it a summary of all the evidence. That evidence showed seven or eight factors going to make up the disability. The employee had testified that while he had some grasping power (the only factor measured by the mechanical tests) in his right hand, the hand was useless to him as a mechanic because of the periodic spasms that caused him to drop whatever he was then holding. We must assume that the Commission did its duty and weighed all the evidence. We know a much larger award could have been made. It follows that the smaller award made is amply supported. It is not and should not be the law that there must be expert evidence in exact accord with the finding. There was expert testimony that indicated a disability to some degree existed. That testimony showed a disability ranging from a few per cent to 100%. The Commission, as the fact finding body, was entitled to weigh all the evidence and to fix the rating within the lower and upper limits of the testimony. This it did and its finding should be approved.

In my opinion the award should be affirmed.

BRAY, Justice.

WARD, J., concurs.