ENSLEY v. WORKERS COMPENSATION APPEALS BOARD (1985)

OPINION

Petitioner Raymond L. Ensley seeks review of a decision and orders of the Workers' Compensation Appeals Board (WCAB or Board) apportioning 333/434 percent of his 100 percent disability to a preexisting and earlier determined permanent partial disability under section 4750 of the Labor Code.¹

We conclude the decision and orders were correctly made and affirm them.

Facts

Most of the facts are set forth at this point.   However, additional factual details relating to specific issues will be developed in connection with our discussion of those issues.

Petitioner was employed as a deputy labor commissioner by the Department of Industrial Relations of the State of California on November 1, 1964.   In May 1975 he suffered a heart attack and in 1976 filed an application for adjudication of claim in Case No. 76 SBR 51814.   Ultimately a stipulated findings and award issued in that case determining that during the period of November 1, 1964, to May 14, 1975, petitioner sustained an industrial injury to his heart causing permanent partial disability of 333/434 percent.   Petitioner was awarded $10,027.50 after apportionment of 50 percent of the disability to nonindustrial factors.

Petitioner returned to work August 16, 1975, performing the same stressful duties he was performing before his heart attack and he continued to work until he had a second heart attack on April 8, 1982, some six and a half years after the first heart attack.   On or about May 25, 1982, petitioner filed the instant application which was assigned case number 82 SBR 86090.

In due course a Workers' Compensation Judge (WCJ) determined petitioner's disability rated 100 percent and awarded petitioner a lifetime pension of $175 per week less the amount of $10,027.50 previously awarded in Case No. 76 SBR 51814.   The Department of Industrial Relations, legally uninsured, sought reconsideration on several grounds, urging that a part of petitioner's 100 percent disability should be apportioned to nonindustrial factors as had been done in the 1976 case and asserting that, in any event, the case involved successive, overlapping disabilities as to which Labor Code section 4750 applied and that apportionment was required to be made in terms of a percentage of the disability, not in terms of the dollar amount of the earlier award.   Petitioner resisted the State's petition for reconsideration urging the evidence would not support apportionment to nonindustrial factors and that the WCJ's apportionment by crediting the dollar amount of the earlier award against the present award was supported by Wilkinson v. Workers' Comp. Appeals Bd. (1977) 19 Cal.3d 491, 138 Cal.Rptr. 696, 564 P.2d 848 and Harold v. Workers' Comp. Appeals Bd. (1980) 100 Cal.App.3d 772, 161 Cal.Rptr. 508.

The Board granted reconsideration and in its decision after reconsideration dated June 7, 1984, determined there was no basis for apportionment to nonindustrial factors but that section 4750 was applicable and that because petitioner had not proved he was rehabilitated from the 333/434 percent permanent partial disability adjudicated in 76 SBR 51814, the 100 percent rating in the instant case would be reduced to “661/414%, after apportionment.” ²

Petitioner then sought reconsideration reciting several statutory grounds and advancing three contentions:  (1) that his disabilities in cases 76 SBR 51814 and 82 SBR 86090 both became permanent and stationary at the same time bringing into play the decisions in Wilkinson v. Workers' Comp. Appeals Bd., supra, 19 Cal.3d 491, 138 Cal.Rptr. 696, 564 P.2d 848 and Harold v. Workers' Comp. Appeals Bd., supra, 100 Cal.App.3d 772, 161 Cal.Rptr. 508;  (2) that the Board's decision apportioning his 100 percent disability pursuant to section 4750 was erroneous under the Wilkinson and Harold cases;  and (3) that the finding of the Board that petitioner did not meet his burden of establishing rehabilitation was “without support in the record” because “the undisputed testimony of the applicant that he worked for more than six years after his infarct in 1975 under unabated stress in his employment, and continued to carry a heavy case load without relief, established rehabilitation from the pre-existing disbaility.”

In an order dated July 13, 1984, the Board denied petitioner's request for reconsideration on the basis of the evidence and reasons discussed in its opinion and decision after consideration of June 7, 1984.

Petitioner then filed in this court a timely petition for writ of reivew ³ asserting only two of the contentions advanced in his petition to the Board for reconsideration:  (1) that his disabilities in cases 76 SBR 51814 and 82 SBR 86090 both became permanent and stationary at the same time, bringing into play the decisions in Wilkinson v. Workers' Comp. Appeals Bd., supra, 19 Cal.3d 491, 138 Cal.Rptr. 696, 564 P.2d 848 and Harold v. Workers' Comp. Appeals Bd., supra, 100 Cal.App.3d 772, 161 Cal.Rptr. 508;  (2) that Board's decision apportioning his 100 percent disability pursuant to section 4750 was erroneous under the Wilkinson and Harold cases.   No contention was advanced in the petition for writ of review that the Board's finding that rehabilitation had not been proved was incorrect or without substantial evidentiary support.

This court denied the petition for writ of review stating:  “The disposition by the Workers' Compensation Appeals Board appears to be correct, leaving petitioner free to pursue his remedy against the Subsequent Injuries Fund.”

Petitioner then filed in the California Supreme Court a petition for hearing in which he advanced the same contentions found in his petition for writ of review except that he now once again included a contention that the Board's finding that applicant did not meet his burden of establishing rehabilitation was without support in the record because of his undisputed testimony that for more than six years after his 1975 heart attack he had continued to carry a heavy load, performing the same duties he performed before the 1975 infarct.⁴  The California Supreme Court granted the petition for hearing and retransferred the case to this court with directions to issue a writ of review, citing Robinson v. Workers' Comp. Appeals Bd. (1981) 114 Cal.App.3d 593, 171 Cal.Rptr. 48.   We issued the writ as directed and the matter is now before us for decision.

Discussion

Section 4750 provides that an employer of a partially disabled worker 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.⁵  When section 4750 is applicable the employer is responsible only for the disability produced by the later injury as if it were the first injury, that is, without reference to the earlier injury.  (§ 4750;  State Compensation Ins. Fund v. Industrial Acc. Com. (Hutchinson) (1963) 59 Cal.2d 45, 49, 52, 27 Cal.Rptr. 702, 377 P.2d 902.)

“[T]he purpose of [the] statute is to encourage employers to hire physically handicapped persons․  In enacting section 4750, the Legislature has expressed a clear intent that the liability of one who employs a previously disabled worker shall, in the event of a subsequent injury, be limited to that percentage of the over-all disability resulting from the later harm considered alone and as if it were the original injury.”  (Fuentes v. Workers' Comp. Appeals Bd. (1976) 16 Cal.3d 1, 6, 128 Cal.Rptr. 673, 547 P.2d 449;  accord State Compensation Ins. Fund v. Industrial Acc. Com. (Hutchinson), supra, 59 Cal.2d 45, 49, 52, 54, 27 Cal.Rptr. 702, 377 P.2d 902;  Dow Chemical Co. v. Workmen's Comp. App. Bd. (1967) 67 Cal.2d 483, 493–494, 62 Cal.Rptr. 757, 432 P.2d 365.)

However, “[I]n order not to discourage the handicapped from seeking work because of the protection denied them by section 4750 (cf. Subsequent Injuries Fund v. Industrial Acc. Com. [ (1963) ], 217 Cal.App.2d 322, 327 [31 Cal.Rptr. 508];  Pacific Gas & Elec. Co. v. Industrial Acc. Com. [ (1954) ], 126 Cal.App.2d 554, 558 [272 P.2d 818] ), [in section 4751] the Subsequent Injuries Fund was made liable in many cases to pay the benefits the employer avoided liability for under section 4750.”  (Dow Chemical Co. v. Workmen's Comp. App. Bd. (1967) 67 Cal.2d 483, 494, 62 Cal.Rptr. 757, 432 P.2d 365.)  Sections 4750 and 4751 are largely correlative and are to be interpreted insofar as possible so that they dovetail.  (Id., at pp. 494–495, 62 Cal.Rptr. 757, 432 P.2d 365;  State Compensation Ins. Fund v. Industrial Acc. Com. (Hutchinson), supra, 59 Cal.2d 45, 55, 27 Cal.Rptr. 702, 377 P.2d 902;  Franklin v. Workers' Comp. Appeals Bd. (1978) 79 Cal.App.3d 224, 239–240, 145 Cal.Rptr. 22.)

Petitioner's principal contention throughout these proceedings and his only contention in the petition for writ of review is that the disabilities from his 1975 heart attack and his 1982 heart attack became permanent and stationary at the same time and that therefore section 4750 does not apply.  (See Wilkinson v. Workers' Comp. Appeals Bd., supra, 19 Cal.3d 491, 497, 138 Cal.Rptr. 696, 564 P.2d 848;  Harold v. Workers' Comp. Appeals Bd., supra, 100 Cal.App.3d 772, 780, 786, 161 Cal.Rptr. 508.)   The contention is absurd.

 The stipulation for the findings and award with respect to the 1975 heart attack included a stipulation that the period of temporary disability was from 5/14/75 through 8/15/75 and that petitioner's condition resulting from that heart attack constituted a permanent disability.   At the time of the second heart attack in April 1982 more than five years (§§ 5803–5804) had passed since the first heart attack and the fact that petitioner's condition resulting from the first heart attack became permanent on August 16, 1975, was res judicata.  (Scott v. Industrial Acc. Com. (1956) 46 Cal.2d 76, 83, 293 P.2d 18;  French v. Rishell (1953) 40 Cal.2d 477, 480, 254 P.2d 26;  Addington v. Industrial Indem. Co. (1972) 24 Cal.App.3d 802, 809, 101 Cal.Rptr. 277.)

 Moreover, the stipulation was well supported by the medical reports.   The record shows the Department of Industrial Relations asserted without contradiction that Dr. Gerald Trostler in a report dated October 7, 1975, submitted on behalf of respondent stated petitioner's condition was permanent and stationary;  Dr. John Miley, reporting for petitioner in a report dated October 31, 1976, stated that petitioner's condition was permanent and stationary;  and Dr. Kritzer, the Agreed Medical Examiner, stated in a report dated October 31, 1977, that petitioner's condition was permanent and stationary.

Obviously petitioner's condition resulting from his heart attack on April 8, 1982, could not have become permanent and stationary in 1975, 1976 or 1977.   With respect to petitioner's condition resulting from the 1982 heart attack Dr. Travis Winsor in a report dated November 30, 1983, stated petitioner was permanent and stationary;  Dr. Jens Dimmick, reporting for applicant in a report dated January 11, 1984, stated applicant was then permanently and totally disabled;  Dr. Dimmick also referred to petitioner's prior disability in 1975.

 In urging that the WCJ must have concluded sub silentio that petitioner's condition from the two heart attacks became permanent and stationary at the same time, petitioner relies on only two items in the record.   First, he points out that on or about December 5, 1983, respondent filed a petition to terminate liability for temporary disability indemnity asserting that “temporary disability terminated on 11–17–83.”   That petition resulted in an opinion dated March 23, 1984, which stated in relevant part:  “Adequate grounds exist for terminating temporary disability.   Medical reports indicate his condition is permanent and stationary.”   On the same date a supplemental order issued reciting that petitioner's condition was permanent and stationary and granting respondent's petition to terminate liability for temporary disability indemnity.

Petitioner asserts without articulating how, that in some fashion these events support his contention his conditions resulting from the 1975 heart attack and the 1982 heart attack became permanent and stationary at the same time.   They do not.   The only possible support for petitioner's contention to be found in respondent's petition to terminate liability for temporary disability benefits is the fact that both case numbers, 76 SBR 51814 and 82 SBR 86090, were listed in the caption of the petition.   However, the substantive allegation of the petition was that “Temporary disability was heretofore found by decision of this Board dated 1–26–83;  that temporary disability has been paid in the total sum of $14,853.73 for the period 4–8–82 to 11–17–83;  and that temporary disability terminated on 11–17–83 because ․ [¶ ] ․  Applicant's condition is permanent and stationary as shown by attached medical report(s).”  (Emphasis added.)   Temporary disability benefits had terminated many years before in case 76 SBR 51814, and it is abundantly clear both from the petition to terminate and the ensuing opinion and order that the temporary disability which was found to terminate on 11–17–83 was that resulting from the second heart attack.

The other item upon which petitioner places reliance to support his contention both disabilities became permanent and stationary at the same time is the fact that the periods during which the injuries were found to have occurred were overlapping.   The stipulated award resulting from the 1975 heart attack specified that the date of injury was from November 1, 1964, to May 14, 1975.   The findings and award in the present case, 82 SBR 86090, fixed the date of the second injury as November 1, 1964, to April 8, 1982.   Just how this supports petitioner's contention that the two disabilities became permanent and stationary at the same time is unexplained.   All that is shown by the overlapping dates is that the disabilities are overlapping, but that fact supports, rather than negates, the application of section 4750.  (See Mercier v. Workers' Comp. Appeals Bd. (1976) 16 Cal.3d 711, 716, 129 Cal.Rptr. 161, 548 P.2d 361;  Hegglin v. Workmen's Comp. App. Bd. (1971) 4 Cal.3d 162, 172–173, 93 Cal.Rptr. 15, 480 P.2d 967;  Dow Chemical Co. v. Workmen's Comp. App. Bd., supra, 67 Cal.2d 483, 492, 62 Cal.Rptr. 757, 432 P.2d 365;  State Compensation Ins. Fund v. Industrial Acc. Com. (Hutchinson), supra, 59 Cal.2d 45, 53 et seq., 27 Cal.Rptr. 702, 377 P.2d 902;  Bookout v. Workmen's Comp. Appeals Bd. (1976) 62 Cal.App.3d 214, 222–224, 132 Cal.Rptr. 864.)

Thus, petitioner's assertion that the two disabilities became permanent and stationary at the same time so that section 4750 is inapplicable is devoid of merit.

 Although petitioner did not raise the issue in his petition for writ of review, it was addressed in the Department's answer and at oral argument so we shall proceed to discuss petitioner's argument the evidence shows as a matter of law that petitioner was fully rehabilitated from the effects of his 1975 heart attack so that at the time of his second heart attack in April 1982 he was not “suffering from a previous permanent disability or physical impairment” within the meaning of section 4750.   Not so.

It is true, of course, that if the injured employee was fully rehabilitated from the effects of the earlier injury or condition at the time of the subsequent injury, no apportionment is appropriate under section 4750.   (See Robinson v. Workers' Comp. Appeals Bd., supra, 114 Cal.App.3d 593, 602, 603, 171 Cal.Rptr. 48;  Bookout v. Workmen's Comp. Appeals Bd., supra, 62 Cal.App.3d 214, 223–224, 132 Cal.Rptr. 864;  Amico v. Workmen's Comp. Appeals Bd. (1974) 43 Cal.App.3d 592, 607–609, 117 Cal.Rptr. 831;  Argonaut Ins. Co. v. Workmen's Comp. App. Bd. (1971) 15 Cal.App.3d 436, 439, 93 Cal.Rptr. 65;  National Auto. & Cas. Ins. Co. v. Industrial Acc. Com. (1963) 216 Cal.App.2d 204, 211–212, 30 Cal.Rptr. 685.)   The applicable rules are succinctly stated in Bookout v. Workmen's Comp. Appeals Bd., supra, 62 Cal.App.3d 214, 223–224, 132 Cal.Rptr. 864:  “In the computation of overlapping disabilities—either partial or total—the percentage of disability due to the prior injury must be subtracted from the percentage of combined disability;  the difference then represents the compensable disability allocable to the subsequent injury.  (Mercier v. Workers' Comp. Appeals Bd., supra, 16 Cal.3d 711, 716 [129 Cal.Rptr. 161, 548 P.2d 361];  Dow Chemical Co. v. Workmen's Comp. App. Bd., 67 Cal.2d 483, 492 [62 Cal.Rptr. 757, 432 P.2d 365];  State Compensation Ins. Fund v. Industrial Acc. Com. (Hutchinson), supra, 59 Cal.2d 45, 53 [27 Cal.Rptr. 702, 377 P.2d 902].)   In situations where the injuries from the first accident or injury have healed or improved prior to the second, the percentage of disability to be subtracted is based on the employee's condition immediately prior to the second injury.  (Mercier v. Workers' Comp. Appeals Bd., supra, fn. 2;  State Compensation Ins. Fund v. Industrial Acc. Com. (Hutchinson), supra, at p. 56 [27 Cal.Rptr. 702, 377 P.2d 902].)”  (See also National Auto. & Cas. Ins. Co. v. Industrial Acc. Com., supra.)

However, the evidence here does not show petitioner was rehabilitated from the effects of the 1975 heart attack, certainly not as a matter of law.   The question of rehabilitation is one of fact to be determined by the Board (State Compensation Ins. Fund v. Industrial Acc. Com. (Hutchinson), supra, 59 Cal.2d 45, 56, 27 Cal.Rptr. 702, 377 P.2d 902;  Argonaut Ins. Co. v. Workmen's Comp. App. Bd., supra, 15 Cal.App.3d 436, 439–440, 93 Cal.Rptr. 65.)   And the Board's finding here that rehabilitation had not been shown must be affirmed by this court if it is supported by substantial evidence on the whole record.⁶  (LeVesque v. Workmen's Comp. App. Bd. (1970) 1 Cal.3d 627, 637, 83 Cal.Rptr. 208, 463 P.2d 432.)

 The evidence that was presented amply supports the Board's finding.   In the summary of evidence of the hearing on December 15, 1982, are found the following excerpts of petitioner's testimony:  “Between August of '75 and April 8, 1982 he continued to perform his duties as Deputy Labor Commissioner but was off because of severe angina attacks three or four times during that period.   The time off work might have totalled twenty days, and he was hospitalized in the CC Unit on three or four occasions, each time for two to three days.

“His caseload on returning in August of '75 was the same as it was prior to his heart attack.   He continued to experience angina and had chest pains and was being treated for the heart condition after August of '75.   His doctor, Dr. Palmer, started him on 10 milligrams of Inderal in August of '75, and that was increased to 80 milligrams beginning approximately two years prior to his attack in April, 1982.   Eighty milligrams is the maximum dosage of Inderal.   The increase in the dosage was due to the increased frequency and severity of the angina attacks.”  (Emphasis added.)

Further:  “ON CROSS EXAMINATION the applicant stated that the heart attack which he had in April, 1982 was more severe than the one in August, 1975;  that after August, '75 the chest pains became progressively worse, and that the dosage of Inderal was increased from time to time until it reached the maximum of 80 milligrams approximately two years before May of 1982.”  (Emphasis added.)

Clearly, petitioner was “suffering from a previous permanent disability or physical impairment” within the meaning of section 4750 at the time he suffered the second heart attack on April 8, 1982.   The stipulated findings and award in case 76 SBR 51814 conclusively established as between these parties that as of August 15, 1975, petitioner was permanently partially disabled and that his disability rated 333/434 percent at that time.   While the stipulated findings and award was not res judicata on the issue of petitioner's disability immediately preceding his second heart attack (Amico v. Workmen's Comp. Appeals Bd., supra, 43 Cal.App.3d 592, 609, 117 Cal.Rptr. 831), petitioner's own testimony established that during the period between his return to work after the first heart attack and the occurrence of the second heart attack his condition did not improve.   Thus, the Board's determination that of petitioner's 100 percent disability 333/434 percent must be apportioned to the preexisting disability was amply supported by the evidence.

 Relying on Subsequent Injuries Fund v. Industrial Acc. Com. (Allen) (1961) 56 Cal.2d 842, 845–846, 17 Cal.Rptr. 144, 366 P.2d 496, as noted in Robinson v. Workers' Comp. Appeals Bd., supra, 114 Cal.App.3d 593, 602, 171 Cal.Rptr. 48, petitioner argues that for section 4750 to apply, the previous condition, as to which apportionment is sought, must be actually “labor disabling.”   Then, pointing out that after his 1975 heart attack he went back to work as a labor commissioner performing the same stressful duties he had previously, petitioner asserts that at the time of his second heart attack his condition was not “labor disabling.”   Petitioner is incorrect.

The problem is that the term “labor disabling” is a term of art;  it does not require any actual interference with the performance of the employee's duties.  (State Compensation Ins. Fund v. Industrial Acc. Com. (Hutchinson), supra, 59 Cal.2d 45, 52–53, 27 Cal.Rptr. 702, 377 P.2d 902;  Subsequent Injuries Fund v. Industrial Acc. Com. (Allen), supra, 56 Cal.2d 842, 845–846, 17 Cal.Rptr. 144, 366 P.2d 496;  Ferguson v. Industrial Acc. Com. (1958) 50 Cal.2d 469, 477, 326 P.2d 145;  Franklin v. Workers' Comp. Appeals Bd., supra, 79 Cal.App.3d 224, 240–241, 145 Cal.Rptr. 22;  Moyer v. Workmen's Comp. Appeals Bd. (1972) 24 Cal.App.3d 650, 658, 100 Cal.Rptr. 540;  cf. Robinson v. Workers' Comp. Appeals Bd., supra, 114 Cal.App.3d 593, 602–603, 171 Cal.Rptr. 48.)

As this court stated in Moyer v. Workmen's Comp. Appeals Bd., supra, 24 Cal.App.3d 650, 658, 100 Cal.Rptr. 540:  “It is correct that in order to constitute a permanent partial disability within the meaning of Labor Code, section 4751 a preexisting injury, condition or disease must have been ‘labor disabling.’  (Subsequent Injuries Fund v. Industrial Acc. Com. [Allen], supra, 56 Cal.2d at p. 845 [17 Cal.Rptr. 144, 366 P.2d 496];  Ferguson v. Industrial Acc. Com., supra, 50 Cal.2d at p. 477 [326 P.2d 145].)   It is not correct that it must have interfered with the employee's ability to work at his employment in the particular field in which he was working at the time of his subsequent injury.  (Subsequent Injuries Fund v. Industrial Acc. Com. [Allen], supra, 56 Cal.2d at pp. 845–846 [17 Cal.Rptr. 144, 366 P.2d 496];  Ferguson v. Industrial Acc. Com., supra, 50 Cal.2d at p. 477 [326 P.2d 145].)   As previously noted, impairment of earning capacity or diminished ability to compete in an open labor market constitutes disability.  (Lab. Code, § 4660, subd. (a), supra;  State Compensation Ins. Fund v. Industrial Acc. Com. (Hutchinson), supra, 59 Cal.2d at pp. 52–53 [27 Cal.Rptr. 702, 377 P.2d 902];  Subsequent Injuries Fund v. Industrial Acc. Com. [Allen], supra, 56 Cal.2d at pp. 845–846 [17 Cal.Rptr. 144, 366 P.2d 496];  Smith v. Industrial Acc. Com. [ (1955) ], supra, 44 Cal.2d [364] at pp. 367–370 [282 P.2d 64].)”

Perhaps the point is best illustrated by quoting from Subsequent Injuries Fund v. Industrial Acc. Com. (Allen), supra, 56 Cal.2d 842, 845–846, 17 Cal.Rptr. 144, 366 P.2d 496:  “It is clear that under these tests Allen's preexisting permanent partial loss of hearing was sufficient, in the circumstances, to support the finding that he was permanently partially disabled, that such disability was labor disabling even though it had not resulted in loss of earnings and had not interfered with his employment in the particular field in which he was then working, and that it was of a kind which could ground an award of permanent partial disability.   As pointed out by the commission, a condition of substantial deafness can reasonably be expected to handicap an employe's ability in the general labor market to get and hold a new job, if once he should be displaced from the job he has had.”  (Emphasis deleted;  see also State Compensation Ins. Fund v. Industrial Acc. Com. (Hutchinson), supra, 59 Cal.2d 45, 52–53, 27 Cal.Rptr. 702, 377 P.2d 902.)

Even in the absence of petitioner's testimony that his condition following the 1975 heart attack failed to improve and that he actually did lose time from work and was hospitalized several times, his 1975 heart attack and resulting condition could reasonably be expected to constitute a competitive handicap in the open labor market and thus would have constituted a permanent disability or physical impairment within the contemplation of section 4750.   Given a subsequent injury of sufficient severity to bring section 4751 into play, petitioner's disability resulting from the first heart attack would certainly qualify him as being “permanently partially disabled” within the meaning of section 4751 so he could proceed against the Subsequent Injuries Fund.   (See Subsequent Injuries Fund v. Industrial Acc. Com. (Allen), supra, 56 Cal.2d 842, 845–846, 17 Cal.Rptr. 144, 366 P.2d 496;  see also State Compensation Ins. Fund v. Industrial Acc. Com. (Hutchinson), supra, 59 Cal.2d 45, 52, 55, 27 Cal.Rptr. 702, 377 P.2d 902.)   And, as several of the decisions have pointed out, “[t]he approach to apportionment pursuant to section 4750 should be consistent with Subsequent Injuries Fund liability since the liability of the Subsequent Injuries Fund is correlated to the liability of the employer.”  (Franklin v. Workers' Comp. Appeals Bd., supra, 79 Cal.App.3d 224, 239–240, 145 Cal.Rptr. 22;  accord State Compensation Ins. Fund v. Industrial Acc. Com. (Hutchinson), supra, 59 Cal.2d 45, 55, 27 Cal.Rptr. 702, 377 P.2d 902;  Moyer v. Workmen's Comp. Appeals Bd., supra, 24 Cal.App.3d 650, 656, 100 Cal.Rptr. 540;  see also Dow Chemical Co. v. Workmen's Comp. App. Bd., supra, 67 Cal.2d 483, 494–495, 62 Cal.Rptr. 757, 432 P.2d 365;  Subsequent Etc. Fund v. Ind. Acc. Com. (Patterson) (1952) 39 Cal.2d 83, 85, 244 P.2d 889.)

 Were there any remaining doubt about the question, there is yet another basis supporting the conclusion petitioner's disability resulting from the 1975 heart attack constituted a “previous permanent disability or physical impairment” within the meaning of section 4750.   Where the injured worker was actually under a prophylactic restriction for a preexisting condition at the time of the second injury, apportionment under section 4750 to a preexisting disability is proper.  (Robinson v. Workers' Comp. Appeals Bd., supra, 114 Cal.App.3d 593, 602, 171 Cal.Rptr. 48;  Bookout v. Workmen's Comp. Appeals Bd., supra, 62 Cal.App.3d 214, 224–225, 132 Cal.Rptr. 864;  Amico v. Workmen's Comp. Appeals Bd., supra, 43 Cal.App.3d 592, 606, 117 Cal.Rptr. 831; Franklin v. Workers' Comp. Appeals Bd., supra, 79 Cal.App.3d 224, 238, 145 Cal.Rptr. 22.)

Here, petitioner was under such a prophylactic restriction at the time of his second heart attack, although he failed to abide by it.   Dr. John Miley who examined petitioner on October 30, 1976, and submitted a report the same or the next day, restricted petitioner to semi-sedentary work with no emotional distress.   In a later report dated September 21, 1982, introduced into evidence in the present case, 82 SBR 86090, Dr. Miley stated:  “This write[r] had previously subjected Mr. Raymond L. Ensley to complete physical examination and submitted a detailed Medical-legal evaluation on October 30, 1976.  ․ At that time, this writer was of the considered opinion that this applicant had a disability limiting him to semi-sedentary employment which constitutes a 60% disability.   The writer was also of the opinion that this aplicant [sic] should never return to his previous employment with all of its multiple stresses and emotional strain.   However, he chose to ignore my advice and returned to his previous employment.”   In addition, although the report does not appear to be part of the record, the Department of Industrial Relations asserted without contradiction in the record that in case 76 SBR 51814 Dr. Morton Kritzer, the Agreed Medical Examiner, also restricted petitioner to semi-sedentary work with no emotional distress.

There was here no retroactive application of any prophylactic restriction;  the prophylactic restrictions were in place at the time petitioner suffered the second heart attack.  (See Bookout v. Workmen's Comp. Appeals Bd., supra, 62 Cal.App.3d 214, 224–225, 132 Cal.Rptr. 864.)

Conclusion and Disposition

There was no evidence of any kind that the disabilities resulting from petitioner's 1975 heart attack and his 1982 heart attack became permanent and stationary at the same time.   Thus, the Wilkinson and Harold decisions are inapposite.   The Board determined on substantial evidence and more that petitioner was not rehabilitated from the effects of his 1975 heart attack at the time of his heart attack on April 8, 1982, and the case does not involve the retroactive application of prophylactic work restrictions, so neither the Robinson nor the Amico case is applicable.   The Board correctly determined that apportionment under section 4750 was required and its apportionment of 333/434 percent of petitioner's 100 percent disability to petitioner's preexisting permanent disability is supported by substantial evidence.   The order and decision of the Board after reconsideration and the order of the Board denying petitioner's request for reconsideration are affirmed.

I respectfully dissent.   I agree an injured employee eligible to recover from the Subsequent Injuries Fund under Labor Code section 4751 may not recover the full disability from his employer.   I further agree if petitioner is not excluded from the apportionment provisions of section 4750, he would be limited to recovery under section 4751.   I am persuaded from the evidence petitioner was exempt from the apportionment provisions of section 4750 because of his rehabilitated condition.

The principle of “apportionment” as provided in section 4750 is that “[a]n employer of a workman who has a permanent physical impairment and who thereafter sustains a compensable injury resulting in permanent disability, is not liable for compensation for the ensuing continued disabilities, but only for that portion of permanent disability which is caused by the last injury.”   (Smith v. Industrial Acc. Com. (1955) 44 Cal.2d 364, 365, 282 P.2d 64.)   This principle, however, is subject to a number of refinements and limitations.

“A permanent disability is one ․ which causes impairment of earning capacity, impairment of the normal use of a member, or a competitive handicap in the open labor market.”  (State Compensation Ins. Fund. v. Industrial Acc. Com. (1963) 59 Cal.2d 45, 52, 27 Cal.Rptr. 702, 377 P.2d 902.)  “The previous condition, as to which apportionment is sought, must be actually ‘labor disabling.’  (Subsequent Injuries Fund v. Industrial Acc. Com. (1961) 56 Cal.2d 842, 845–846 ․ [17 Cal.Rptr. 144, 366 P.2d 496] )”  (Robinson v. Workers' Comp. Appeals Bd. (1981) 114 Cal.App.3d 593, 602, 171 Cal.Rptr. 48.)

The fact that a worker received a permanent disability rating for an earlier injury, and was in fact disabled for some period of time, “does not provide a basis for apportionment.  ‘The California scheme of permanent disability contemplates the potential rehabilitation of the injured worker․’ ”  (Id., at p. 602, 171 Cal.Rptr. 48.)   Therefore, “if an injured employee recovers and thereafter is again injured, he is entitled to compensation for the injury to his rehabilitated condition, not limited in amount by the terms of a former award.”  (Amico v. Workmen's Comp. Appeals Bd. (1974) 43 Cal.App.3d 592, 608, 117 Cal.Rptr. 831;  Robinson v. Workers' Comp. Appeals Bd., supra, 114 Cal.App.3d at p. 602, 171 Cal.Rptr. 48.)   “[W]hether an employee has succeeded in rehabilitating himself will turn on evidence as to whether he was actually restricted in his work activity prior to his second injury (Amico [v. Workers' Comp. Appeals Bd. ], supra, 43 Cal.App.3d at p. 606 [117 Cal.Rptr. 831] ), i.e., whether the employee suffered from an actual incapacity to perform the tasks usually encountered in his or her employment.  [Citations.]”  (Robinson v. Workers' Comp. Appeals Bd., supra, 114 Cal.App.3d at pp. 602–603, 171 Cal.Rptr. 48.)

It is the actual pre-existing permanent disability at the time of the subsequent injury which governs, not some rating that may have been awarded many years before.   The earlier rating of 333/434 percent is for the 1975 injury and is not res judicata with respect to petitioner's condition when he sustained a subsequent injury in 1982.  (Pacific Gas & Elec. Co. v. Ind. Acc. Com. (1954) 126 Cal.App.2d 554, 559, 272 P.2d 818.)   Rehabilitation, like injury, is a fact and if as a result of its occurrence the degree of permanent disability is affected, the Board should make a specific finding on the subject.   The Board is required to make a finding on each major element which affects the amount of a compensation award.   There was uncontradicted evidence of rehabilitation which should be taken into account in determining the amount of the award.   The Board avoided this issue by finding Ensley had not met his burden of proof in demonstrating rehabilitation.   It is the employer who benefits from a finding of apportionment and the burden of demonstrating that apportionment is appropriate is on the employer.  (Pullman Kellogg v. Workers' Comp. Appeals Bd. (1980) 26 Cal.3d 450, 456, 161 Cal.Rptr. 783, 605 P.2d 422;  Robinson v. Workers' Comp. Appeals Bd., supra, 114 Cal.App.3d at p. 603, 171 Cal.Rptr. 48.)   Before claiming the benefits of apportionment in this case, the employer should bear the burden of proving apportionment is appropriate including lack of rehabilitation.

The undisputed evidence established that for over six years after the first heart attack Ensley regularly performed all of the work assignments that he had previously performed.   The record is devoid of any medical or lay evidence of the extent, if any, of Ensley's permanent disability before the second injury.   It is true, as respondent points out, that the workers' compensation judge did not make express findings that Ensley had completely rehabilitated himself.   This finding is unmistakably implied in the judge's finding that Ensley performed the same stressful tasks before and after the first heart attack, and his conclusion that there was insufficient evidence to support apportionment.

“ ‘․ When a referee's finding of compensable injury is supported by solid, credible evidence, it is to be accorded great weight by the Board and should be rejected only on the basis of contrary evidence of considerable substantiality.  (Garza v. Workmen's Comp. App. Bd. [ (1970) ], supra, 3 Cal.3d 312, 318–319 [90 Cal.Rptr. 355, 475 P.2d 451];  Greenberg v. Workmen's Comp. App. Bd. (1974) 37 Cal.App.3d 792, 798–799 ․ [112 Cal.Rptr. 626] )’ (11 Cal.3d at pp. 280–281.)”  (Amico v. Workmen's Comp. Appeals Bd., supra, 43 Cal.App.3d 592, 598, 117 Cal.Rptr. 831.)   Here the Board had no evidence to reject the implied findings of the workers' compensation judge (referee).

The Board erred in imposing on Ensley the burden of proving he had rehabilitated himself.   Because the record contains no proof or findings by the Board as to the extent of Ensley's permanent disability at the time of the second injury, I would annul the order granting apportionment.

FOOTNOTES

1.   All statutory references will be to the Labor Code unless otherwise specified.

2.   The Board's “OPINION AND ORDER GRANTING RECONSIDERATION AND DECISION AFTER RECONSIDERATION” dated June 7, 1984, reads in pertinent part:  “We are persuaded that this record ․ justifies a finding of no apportionment to non-industrial factors.   However, permanent disability of 333/434 was found by the decision in Case No. 51814 of January 9, 1979.   [¶] It has not been established that the disability attributable to Case Nos. 51814 and 86090 became permanent and stationary at the same time, and thus the disability attributable to Case No. 51814 preexisted the disability attributable to the injury herein.   Moreover, applicant has not met his burden of establishing that he rehabilitated himself from this preexisting disability at the time of this injury, and the record establishes that the pre-existing and present disability are of the same manner [sic].  [¶]  In these circumstances, the preexisting disability (33 3/4 34%) should have been deducted from the overall disability (100%), leaving a rating in accord with Labor Code Section 4750 (see Fuentes v. WCAB (1976), 41 CCC 42, 44–45;  cf. Wilkinson v. WCAB (1977), 42 CCC 406;  Harold v. WCAB (1980), 45 CCC 77).   Accordingly, reconsideration will be granted to find permanent disability, after apportionment to preexisting disability, of 66 1/4 14%.”  (Emphasis omitted.)

3.   Petitioner originally filed his petition for review in the Second Appellate District, but on motion of the Department of Industrial Relations the petition was transferred to this court, apparently because all of the proceedings before the Board occurred and all other significant aspects of the case had their situs in the Fourth Appellate District.

4.   We pause to observe that with startling frequency we find that petitions to the California Supreme Court for hearing (now called petitions for review), particularly in writ cases, assert grounds and contentions which were not advanced or even mentioned in the petition for writ filed in this court.   The orderly administration of justice would suggest that before acting on a petition for hearing or, now, review, the California Supreme Court should satisfy itself that the grounds and contentions made in the petition for review were presented to the Court of Appeal.   Otherwise, if the case is retransferred for decision to the Court of Appeal, that court will in many cases not know what ground or contention so impressed the California Supreme Court that it ordered review granted and, even worse, the issues in the case before the Court of Appeal will be those made by the petition for writ, the return or answer, and the traverse, and will not include any new or different ground or contention raised only in the petition for review in the Supreme Court.

5.   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.”

6.   Petitioner has not contested the propriety of the Board's placing the burden of proof on him on the issue of rehabilitation.   Nevertheless, in view of the dissent we think it appropriate to indicate we agree with the Board on the point.   While the burden of proof with respect to apportionment, as that term is normally used, is on the employer (Pullman Kellogg v. Workers' Comp. Appeals Bd. (1980) 26 Cal.3d 450, 456, 161 Cal.Rptr. 783, 605 P.2d 422;  Robinson v. Workers' Comp. Appeals Bd., supra, 114 Cal.App.3d 593, 603, 171 Cal.Rptr. 48), when, as here, the apportionment is statutorily required by section 4750 and the earlier injury has been the subject of Board proceedings resulting in a formal determination of permanent, partial disability which is res judicata of the fact permanent partial disability existed at the time of the award, the burden as to the subissue of rehabilitation is appropriately placed on the employee.  (See Evid.Code, §§ 550, 604.)   The adjudicated permanent partial disability is presumed to continue in the absence of proof to the contrary (see Civ.Code, § 3547;  Asamen v. Thompson (1942) 55 Cal.App.2d 661, 668–669, 131 P.2d 841;  see also Gudger v. Manton (1943) 21 Cal.2d 537, 552, 134 P.2d 217) and the evidence relevant to the issue of rehabilitation is best known and most available to him or her.

KAUFMAN, Acting Presiding Justice.

McDANIEL, J., concurs.