GILLETTE v. WORKMEN COMPENSATION APPEALS BOARD (1971)

The State Compensation Insurance Fund seeks a rehearing, contending that Michon v. Workmen's Comp.App.Bd., 15 Cal.App.3d 917, 93 Cal.Rptr. 476, does not apply here because there was a conflict in the medical testimony of Dr. Brown and Dr. McHenry. The carrier cites Franklin v. Workmen's Comp.App.Bd., 18 Cal.App.3d 682, 685, 96 Cal.Rptr. 201, which distinguishes the Michon case in a situation where the appeals board grants reconsideration in the face of conflicting evidence.

There was no conflict of evidence here. Dr. Brown's testimony formed substantial evidence which supported the referee's finding of industrial causation. Dr. McHenry's testimony did not constitute substantial evidence, because it ignored a salient portion of the claimant's medical history. (See Place v. Workmen's Comp.App.Bd., 3 Cal.3d 372, 378—379, 90 Cal.Rptr. 424, 475 P.2d 656.) The board's order of reconsideration was based upon Labor Code section 5903(c), which permits reconsideration when the evidence does not ‘justify’ the findings of fact. (See Redner v. Workmen's Comp.App.Bd., 5 Cal.3d 83, 92, 95 Cal.Rptr. 447, 485 P.2d 799.) Here the referee's findings were supported by the only cognizable medical evidence. There being no conflict, the board's order of reconsideration was arbitrary and exceeded its authority.

The petition for rehearing is denied.

ON PETITION FOR REHEARING