CITY AND COUNTY OF SAN FRANCISCO v. WORKMEN COMPENSATION APPEALS BOARD (1975)

The City and County of San Francisco has petitioned for a writ of review, claiming that the Workmen's Compensation Appeals Board erred in awarding death benefits to respondents Annette and Roseanna Wiebe, the widow and minor daughter of decedent Leonard Wiebe. The issue presented concerns the validity of Labor Code section 3212.5.

Leonard was employed as a San Francisco policeman from July 13, 1943 to November 16, 1968, when he retired from the department on a years-of-service basis. He was employed as a special investigator by respondent Bank of America, from November 18, 1968 until September 3, 1972, the date of his death.

Annette and Roseanna applied for death benefits and compensation for burial expenses, alleging that Leonard's death was due to stress and strain arising out of and in the course of his employment with the city, and naming the city as defendant. At the request of the city, the Bank of America was subsequently joined as party defendant.

The matter was determined by the referee on the basis of documents submitted to him. The only medical evidence before the referee was the deposition testimony and written report of Dr. Frederic Mintz, who stated in the report: ‘It is concluded that Mr. Wiebe died of an acute myocardial infarction secondary to coronary atherosclerotic disease. This disease is progressive and had undoubtedly been present for many years prior to his demise. . . . I cannot, however, on medical grounds reasonably relate his coronary heart disease and myocardial infarction to his employment as a police officer prior to November 16, 1968.’

The referee, in his findings and award issued August 15, 1974, found, inter alia, that Leonard, ‘while employed as a police officer during the period July 13, 1943 through November 16, 1968, by the City and County of San Francisco, legally uninsured, sustained an injury arising out of and occurring in the course of his employment to his heart, proximately resulting in his death on September 3, 1972’; and that ‘[t]he employee's death did not arise out of and occur in the course and scope of his employment with the Bank of America . . .’ The referee explained the award in the ‘Report of Referee On Decision,’,' where he stated: ‘The medical report and deposition of Dr. Mintz is the only medical evidence in this case. Although the doctor does not feel he can, on medical grounds, reasonably relate the decedent's coronary heart disease and myocardial infarction to his employment as a police officer, this is not sufficient to reject the presumption of Labor Code Section 3212.¹ It is, therefore, found that the decedent died as a result of a myocardial infarction resulting from atherosclerotic disease which arose out of and occurred in the course and scope of his employment as a police officer for the City and County of San Francisco.

‘There is no evidence, medical or lay, to implicate the decedent's employment with the defendant Bank of America, National Trust & Savings Association from November 18, 1968 through September 3, 1972 as a cause of decedent's death and it is therefore found that his death did not arise out of and occur in the course of this employment.’

The city's petition for reconsideration was granted by the board, which held that the referee erred in not apportioning the award between Annette and Roseanna Wiebe; this issue is not before the court on this petition. The board upheld the referee's decision as to application of Labor Code section 3212.5 to this case. From this ruling, the city sought a writ of review in this court.

I

Labor Code section 3212.5 states: ‘In the case of a member of a police department of a city or municipality . . . the term ‘injury’ as used in this division includes heart trouble . . . which develops or manifests itself during a period while such member . . . is in the service of the police department . . .. Such heart trouble . . . so developing or manifesting itself shall be presumed to arise out of and in the course of the employment . . .. This presumption is disputable and may be controverted by other evidence, but unless so controverted, the appeals board is bound to find in accordance with it.'

The 1959 amendment to the section states: ‘Such . . . heart trouble . . . so developing or manifesting itself in such cases shall in no case be attributed to any disease existing prior to such development or manifestation.’

The city does not attack the validity of the section as a whole, but claims that the 1959 amendment is unconstitutional per se or as applied to the facts of this case. The decisions of the referee and board may be summarized as follows: According to the uncontradicted testimony of Dr. Mintz, Leonard died as a result of an acute myocardial infarction due to coronary atherosclerotic disease. Dr. Mintz stated that the disease has its onset in childhood, is well established in most American males at age 25, and progresses continuously until death. Therefore, since the disease is a progressive one, it ‘developed,’ within the meaning of section 3212.5, while Leonard was employed as a San Francisco policeman.²

The city sought to rebut the presumption, with the testimony of Dr. Mintz, to the effect that Leonard's occupation as a policeman did not play a role in the progression of the disease and that the progressive atherosclerotic disease was the sole cause of his death. The 1959 amendment of the statute, however, precludes the referee and the board from considering evidence of ‘any disease existing prior to such development or manifestation’ as a cause of the heart trouble developing or manifesting itself while the employee is in the service of the police department. This court, in Turner v. Workmen's Comp. App. Bd., 258 Cal.App.2d 442, 65 Cal.Rptr. 825, considered this aspect of section 3212.5 and held that: ‘under the 1959 amendment the statutory presumption cannot be rebutted by evidence of pre-existing heart disease, as distinguished from ‘other evidence’ that the in-service heart trouble was not industrially caused.' (258 Cal.App.2d at p. 449, 65 Cal.Rptr. at p. 830.) Thus, the referee and the board could not consider the evidence that the infarction was caused by a progressive heart disease which pre-existed Leonard's employment as a policeman; they concluded, therefore, that the presumption of industrial causation was not rebutted and that Leonard's death arose out of and in the course of his employment with the city.

The city claims that the 1959 amendment is unconstitutional because it causes the presumption created by the statute to operate in a way which precludes ‘a person against whom it is raised from presenting his defense as to the main fact which is to be presumed.’

The due process clause of the Fourteenth Amendment to the United States Constitution, and of the California Constitution (art. I, § 13), state that no person shall be denied due process of law. In all the cases cited by the city in support of its contention that it is unconstitutionally deprived of due process because of operation of the presumption, the party claiming deprivation of due process was a corporation or person rather than a municipality. (See Mobile, J. & K. C. R. R. v. Turnipseed, 219 U.S. 35, 42, 31 S.Ct. 136, 55 L.Ed. 78; Tot v. United States, 319 U.S. 463, 63 S.Ct. 1241, 87 L.Ed. 1519; Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57; People v. Stevenson, 58 Cal.2d 794, 797, 26 Cal.Rptr. 297, 376 P.2d 297; Martin v. Superior Court, 17 Cal.App.3d 412, 415, 95 Cal.Rptr. 110; People v. Fitzgerald, 14 Cal.App.2d 180, 58 P.2d 718.) The City of San Francisco may not claim that an act of the state Legislature deprives it of due process. As stated by Justice Cardozo in Williams v. Mayor, 289 U.S. 36, 40, 53 S.Ct. 431, 432, 77 L.Ed. 1015: ‘A municipal corporation, created by a state for the better ordering of government, has no privileges or immunities under the Federal Constitution which it may invoke in opposition to the will of its creator. Trenton v. New Jersey, 262 U.S. 182, 43 S.Ct. 534, 67 L.Ed. 937, 29 A.L.R. 1471; City of Newark v. New Jersey, 262 U.S. 192, 43 S.Ct. 539, 67 L.Ed. 943; Worcester v. Worcester Consolidated Street Ry. Co., 196 U.S. 539, 25 S.Ct. 327, 49 L.Ed. 591; Pawhuska v. Pawhuska Oil Co., 250 U.S. 394, 39 S.Ct. 526, 63 L.Ed. 1054; Risty v. Chicago, R.I. & Pac.Ry. Co., 270 U.S. 378, 390, 46 S.Ct. 236, 70 L.Ed. 641; Railroad Commission v. Los Angeles R. R. Corp., 280 U.S. 145, 156, 50 S.Ct. 71, 74 L.Ed. 234.’ (See also Annotation, Right of Municipality to Invoke Constitutional Provisions Against Acts of State Legislature, 116 A.L.R. 1037; McQuillin, Municipal Corporations (3d ed. 1966) Legislative Control, § 4.20.)

It is necessary to recognize that San Francisco is a charter city, organized under article XI of the California Constitution, and thus, has the power to fix the compensation to be paid to its peace officers and other employees. (Klench v. Board of Pension Fd. Commrs., 79 Cal.App. 171, 179.) However, where there is a conflict between the charter provisions and the Workmen's Compensation Act, the latter preempts the former and must prevail. (City of Oakland v. Workmen's Comp. App. Bd., 259 Cal.App.2d 163, 166, 66 Cal.Rptr. 283.)

It is clear, therefore, that the Legislature's establishment of a presumption which operates in favor of a class of municipal employees cannot be successfully challenged by the municipality either as an alleged denial of due process or as an unconstitutional invasion of the municipality's domain as a charter city.

II

Petitioner contends that the 1959 amendment is unconstitutional because it is an exercise of legislative authority in excess of that granted by article XX, section 21 of the California Constitution. Article XX, section 21 of the California Constitution provides: ‘The Legislature is hereby expressly vested with plenary power, unlimited by any provision of this Constitution, to create, and enforce a complete system of workers' compensation, by appropriate legislation, and in that behalf to create and enforce a liability on the part of any or all persons to compensate any or all of their workers for injury or disability, and their dependents for death incurred or sustained by the said workers in the course of their employment, irrespective of the fault of any party.’

The city claims that the effect of the 1959 amendment is to require the public employer to provide compensation for injuries which were not ‘incurred or sustained . . . in the course of . . . employment.’ It asserts that although the uncontradicted medical evidence indicated that Leonard's death was not related to his employment as a policeman, the referee and the board were barred by the operation of the 1959 amendment, as interpreted by Turner v. Workmen's Comp. App. Bd., supra, 258 Cal.App.2d 442, 65 Cal.Rptr. 825, from considering Leonard's pre-existing atherosclerosis as a factor rebutting the statutory presumption of industrial causation. As a result, the city claims it is held liable for Leonard's death, which was not incurred or sustained in the course of his employment with the city.

While the operation of the 1959 amendment in this case does appear to extend coverage to an injury which is somewhat tenuously related to employment, it need not necessarily be concluded that the amendment is unconstitutional. The court in Turner stated: ‘The manifest purpose of section 3212.5 prior to the 1959 amendment was to favor a class of public employees whose service is both vital to the public interest and hazardous to heart health. . . . We conclude, rather, that the 1959 Legislature intended to pursue the original purpose of section 3212.5, and to improve its effect upon the favored employee class, by amending it to preclude consideration of prior heart disease as a cause of inservice heart trouble, and against the presumption, in any case.’ (Supra, at pp. 449–450, 65 Cal.Rptr. at p. 830.) This court affirmed this interpretation of an identical 1959 amendment to section 3212, which creates a similar presumption of industrial causation for fire-fighters. (Bussa v. Workmen's Comp. App. Bd., 259 Cal.App.2d 261, 66 Cal.Rptr. 204.)

Although our earlier opinions do not specifically discuss the constitutionality of the amendment, an assumption of constitutionality is necessarily implied in the interpretation of the section. Furthermore, the Turner and Bussa opinions both state that the presumptions created by Labor Code sections 3212.5 and 3212 are rebuttable by other evidence of non-industrial causation, ‘i.e., by evidence thereof other than proof of pre-existing heart disease.’ (259 Cal.App.2d at p. 265, 66 Cal.Rptr. at p. 207.)

The Turner and Bussa decisions of this court were based on a theory that the Legislature, by passing section 3212.5 and 3212 and the amendments thereto, sought to create a special benefit for public employees whose job places them in hazardous situations where they are subject to stress and tension. There is, of course, a difference of opinion in the medical profession as to the role of stress and tension in heart disease. However, the Court of Appeal in Stephens v. Workmen's Comp. Appeals Bd., 20 Cal.App.3d 461, 97 Cal.Rptr. 713, stated:³ ‘Statistically we cannot assert . . . that the majority of doctors do accept the proposition that stress and tension relate to acceleration of arteriosclerosis of the coronary artery. But what we can and must assert is that the Legislature has declared that in workmen's compensation applications stress and tension are to be taken into consideration. We have pointed out above that sections 3212 and 3212.2 have allied the state in workmen's compensation cases with those medical practitioners who disagree with doctors holding Dr. DeSilva's beliefs. It is impermissible for a compensation carrier to ‘repeal’ this legislation, wiping out the presumption created by section 3212.2, by seeking out a doctor whose beliefs preclude its possible application. It is impermissible for the board or its referee to accept the opinion of a physician so disposed as the basis for disallowing a claim.'⁴ (Supra, at p. 467p, 97 Cal.Rptr. at p. 716, emphasis added.) Thus, the appellate courts have taken the view that the Legislature may properly establish presumptions benefitting a certain class of workers which are based on the belief that occupational stress and tension either cause heart trouble or aggravate pre-existing heart trouble.

The decision of the Workmen's Compensation Appeals Board is affirmed.

FOOTNOTES

1.  All parties have treated this reference to section 3212 as a reference to section 3212.5.

2.  Either in-service development or in-service manifestation activates the presumption. (Soby v. Workmen's Comp. Appeals Bd., 26 Cal.App.3d 555, 102 Cal.Rptr. 727.

3.  Discussing a similar presumption established in section 3212.2.

4.  It should be noted that Dr. Mintz' report shows that his beliefs also preclude the application of the presumption, and reliance on his report would be impermissible under Stephens: ‘The role of type of occupation, emotional distress, length of hours of work and behavior pattern in the pathogenesis of coronary heart disease must be regarded as conjectural. One may be highly critical of the evidence adduced to support a causal relation between emotional factors and coronary heart disease. The extremely low incidence of the disease in various parts of the world during periods of war stress when adequate food was unavailable, the high frequency in this country among people of all economic means, all types of jobs and all personalities precludes a primary role of emotion or occupation.’

CALDECOTT, Presiding Justice.

RATTIGAN and CHRISTIAN, JJ., concur.