62 Cal. 2d 59 | Cal. | 1964
This proceeding involves the proper allocation of liability for temporary disability indemnity and medical care where the applicant has suffered a series of injuries, in this ease four. The Industrial Accident Commission made the award against Universal Underwriters Insurance Company, the carrier at the time of the third and fourth injuries. This award is supported by the factual determinations made by the commission, and these findings are based on substantial evidence. For these reasons the award should be affirmed.
Applicant, J esse Allison, worked as an automobile mechanic. In the course and scope of Ms employment, he sustained injuries to his back on four occasions—September 1953, wMle employed by Cormier Chevrolet Co., April 1958, November 1961, and July 1962, at wMch times he was employed by Fred Gledhill Chevrolet. Pacific Indemnity Company was the carrier at the time of the first two injuries, Universal at the time of the latter two. After the second injury, applicant had a spinal fusion. The surgery was not completely successful and there resulted a false fusion, or the condition known as pseudo-arthrosis. He continued to feel some pain, but returned to work. He was somewhat restricted on the job, and was favored with the easier work. The tMrd injury resulted in a great increase in pain, and also further restricted Ms working ability for a period. The fourth injury resulted in such incapacity that he could no longer work at Ms job, and he was discharged. Throughout the period involved applicant was under medical supervision, and both testimony and medí
Applications for compensation for all four injuries were consolidated and, after hearings, an award for temporary disability and medical care was made against Universal. There was no apportionment. Universal’s petition for reconsideration was denied by the commission. As applicant’s condition had not yet become permanent and stationary, no decision was made with respect to liability for permanent disability.
It is well settled that the acceleration, aggravation, or “lighting up” of a preexisting nondisabling condition is an injury in the employment causing it (Tanenbaum v. Industrial Acc. Com., 4 Cal.2d 615 [52 P.2d 215]), and “If the resultant disability is entirely due to the industrial injury lighting up the previous dormant condition, then the employer is liable for that disability and there can be no apportionment.” (State of California v. Industrial Acc. Com., 135 Cal.App.2d 544, 549 [288 P.2d 31].) The award against Universal alone is based on the factual determination that the presént incapacity to work and earn wages, and the present need for further surgery, are attributable to the third and fourth injuries.
“Whether a" disability results in whole or in part from ‘the normal progress of a preexisting disease’ [citation] or represents a fully compensable lighting up or aggravation of a preexisting condition is a question for the commission to determine, and its award will not be annulled if there is any substantial evidence to support it.” (Argonaut Ins. Co. v. Industrial Acc. Com., 57 Cal.2d 589, 593 [21 Cal.Rptr. 545, 371 P.2d 281]; see also American Can Co. v. Industrial Acc. Com., 196 Cal.App.2d 445 [16 Cal.Rptr. 424].) Judicial review is limited to a determination whether there is any substantial evidence, contradicted or uncontradieted, that will support the award. (Douglas Aircraft, Inc. v. Industrial Acc. Com., 47 Cal.2d 903, 905 [306 P.2d 425] ; Lab. Code, §§ 5952, 5953.)
Although there was conflicting evidence, the testimony of Dr. Rohrer, upon which the commission was entitled
The award against Universal of compensation for temporary disability was also proper. It should be borne in mind that we are concerned here only with temporary as distinguished from permanent disability. The primary element of temporary as distinguished from permanent disability is loss of wages. (Allied Compensation Ins. Co. v. Industrial Acc. Com., 211 Cal.App.2d 821, 831 [27 Cal.Rptr. 918] ; American Can Co. v. Industrial Acc. Com., supra, 196 Cal.App.2d 445, 451; 2 Larson, Workmen’s Compensation Law (1961) § 57.10, p. 2.) Here, there was no temporary disability immediately prior to the third injury—applicant was on the job and not suffering any compensable wage loss. There may have been a preexisting permanent disability prior to the third injury (this has not yet been decided by the commission because applicant’s condition has not yet become permanent and stationary), and, if so, the award for permanent disability will no doubt be subject to the apportionment provisions of the code. There is substantial evidence to support the finding
Since there is ample support for the determination that the current symptomatology, resulting in the present need for further surgery and the present temporary disability, is attributable to the third and fourth injuries, the award against Universal must he affirmed.
The award is affirmed.
Traynor, C. J., MeComb, J., Tobriner, J., Peek, J., Mosk, J., and Sehauer, J.,
Retired Associate Justice of the Supreme Court sitting under assignment by the Chairman of the Judicial Council.