69 Cal. 2d 399 | Cal. | 1968
Lead Opinion
Petitioner seeks annulment of a decision after reconsideration by the Workmen’s Compensation Appeals Board which apportioned liability for temporary disability compensation and medical treatment subsequent to April 1, 1966, 50 percent to respondent carrier and 50 percent to petitioner. The basis of the apportionment was a neck injury not industrially related suffered August 1961 and a subsequent industrial injury to the neck suffered April 13, 1965.
Petitioner urges :(1) temporary disability is not apportion-able; (2) medical treatment is not apportionable; and (3) even assuming that in a proper case apportionment might be permitted, the record does not support apportionment here. The first two contentions are meritorious.
Section 4663 of the Labor Code provides: “In case of aggravation of any disease existing prior to a compensable injury, compensation shall be allowed only for the proportion of the disability due to the aggravation of such prior disease which is reasonably attributed to the injury.” In cases involving permanent disability, it is settled that the section must be read in light of the rule that an employer takes the employee as he finds him at the time of employment; that, when subsequent injury lights up or aggravates a previously existing condition resulting in disability, liability for the full disability without proration is imposed upon the employer, and that the appeals board may apportion the disability under the section “only in those cases in which part of the disability would have resulted, in the absence of the industrial injury, from the ‘normal progress’ ” of the preexisting disease. (E.g.. Zemke v. Workmen’s Comp. App. Bd., 68 Cal.2d 794, 796 et seq. [69 Cal.Rptr. 88, 441 P.2d 928] ; Berry v. Workmen’s Comp. App. Bd.. 68 Cal.2d 786, 789 et seq. [69 Cal. Rptr. 68, 441 P.2d 908] ; Reynolds Elec, etc., Co. v. Workmen’s Comp. App. Bd., 65 Cal.2d 438, 442-443 [55 Cal.Rptr. 254, 421 P.2d 102].) The board’s position is that this rule should be applied to temporary disability cases.
Although Royal Globe Ins. Co. v. Industrial Acc. Com., supra, 63 Cal.2d 60, did not directly involve the question of apportionment of temporary disability between industrial and nonindustrial injuries, the language of the opinion and much of its reasoning bears significantly on that question. A footnote states: “It should be noted that we are here involved only with apportionment between insurance carriers. There can be no apportionment as to the injured worker. Both Royal Globe and State Fund may be held fully liable (jointly and severally) to him (Fireman’s Fund Indem. Co. v Industrial
In considering whether the rules permitting apportionment in permanent disability eases should be applied to temporary disability benefits, it must be recognized that there are substantial differences between the purposes and bases of the two benefits. The primary element of temporary disability is wage loss. (Fred Gledhill Chevrolet v. Industrial Acc. Com., supra, 62 Cal.2d 59, 62; Allied Comp. 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, pp. 2-3.) Thus, section 4650 of the Labor Code provides: “If an injury causes temporary disability, a disability payment shall be made for one week in advance as wages on the eighth day after the injured employee leaves work as a result of the injury. ...” Section 4653 covers temporary total disability and provides that “the disability payment is 65 per cent of the average weekly earnings during the period of such disability, consideration being given to the ability of the injured employee to compete in an open labor market.” Section 4654 covers temporary partial disability and provides that “. . . the disability payment is 65 per cent of the weekly loss in wages during the period of such disability,” and section 4657 also dealing with partial disability provides that “the weekly loss in wages shall consist of the difference between the average
On the other hand, permanent disability is not based solely on loss of wages but is based both on actual incapacity to perform the tasks usually encountered in one’s employment and on physical impairment of the body that may or may not be incapacitating. (Madin v. Industrial Acc. Com., 46 Cal.2d 90, 97-98 [282 P.2d 892]; Smith v. Industrial Acc. Com., 44 Cal.2d 364, 367 [282 P.2d 64]; Allied Comp. Ins. Co. v. Industrial Acc. Com., supra, 211 Cal.App.2d 821, 831-833.)
The legislative policy of making temporary disability payments a substitute for lost wages would be frustrated to a substantial degree if the disabled worker must await doctor’s examinations, complex reports, and the resulting hearing, which may be protracted, to determine the question of apportionment of disability. If apportionment is permitted, employers can be expected, when apportionment questions arise, to withhold temporary disability payments until determination of the question, thus frustrating the policy reflected by section 4650 of the Labor Code requiring payment of temporary benefits on the eighth day after the injured employee leaves work. The expeditious payment of benefits is part of the “social public policy of this State” (Cal. Const., art. XX, § 21), and any delay in the payment of temporary benefits, the substitution for wages of the disabled worker, obviously will work great hardship.
The legislative command is that workmen’s compensation laws shall be liberally construed “with the purpose of extending their benefits for the protection of persons injured in the course of their employment.” (Lab. Code, § 3202.) Where provisions of such laws are susceptible of an interpretation either beneficial or detrimental to injured employees or an ambiguity appears, they must be construed favorably to the employees. (E.g., Colonial Ins. Co. v. Industrial Acc. Com., 27 Cal.2d 437, 442 [164 P.2d 490].) An ambiguity appears here. Section 4663 in providing for apportionability does not specify whether it applies to temporary and permanent disability but uses the term disability generally, and the article in which the section appears applies to both permanent and temporary disability. These facts would ordinarily, as the board urges, warrant a holding that temporary disability is apportionable, but to so hold would ignore other matters
It is true that denying apportionability of temporary benefits may in some eases result in inequity to employers. On the other hand, because the benefits are based so directly on lost wages, a contrary rule may result in some inequity to employees. Thus, in those eases where preexisting nonindustrial injuries had resulted in partial disability prior to the industrial injury, it can reasonably be expected that the partial disability had resulted in a reduction in wages, and to permit apportionment of benefits, when those benefits are based on the preexisting reduced wages, would seem to involve a double reduction.
In view of the ambiguity of the statute, the rule of liberal construction, the delays which will necessarily result if temporary disability is made apportionable, the resulting frustration of the legislative policy of making temporary disability a substitute for lost wages, and our public policy of expeditious payment, we conclude that temporary disability is not apportionable.
There can be no doubt that medical expense is not apportionable. Section 4600 of the Labor Code states that the employer shall provide such treatment which is reasonably required to cure or relieve from the effects of the injury, and section 4601 of that code provides that "All” of the doctor treatment shall be at the expense of the employer. Neither section 4600 nor any of the succeeding sections in the article of the code dealing with medical and hospital treatment state pr even suggest that the employer may pay part of the
The apportionment provision relied upon by the board, section 4663 of the Labor Code, is not in the article dealing with medical treatment but in the article dealing with disability, and by its terms applies to “compensation” for ‘ ‘ disability. ’ ’
The decision must be annulled for another reason. The board in any decision on reconsideration altering or amending an order or award is required to state the evidence relied upon and specify in detail the reasons for that decision in order to assist the reviewing court in ascertaining the principles relied upon by the board, to help the board avoid careless or arbitrary action, and to make the right of review meaningful. (Lab. Code, § 5908.5; Evans v. Workmen’s Comp. App. Bd., 68 Cal.2d 753, 755 [68 Cal.Rptr. 825, 441 P.2d 633].)
In ordering apportionment, the board relied upon the evidence before it generally and the report of Dr. Robert R. Mclvor. The board stated: “Although applicant was apparently asymptomatic and able to work between the injury of 1961 and the injury herein, we agree with the opinion of Dr. Robert R. Mclvor as stated in his report of March 14, 1966, that the 1961 incident resulted in a ‘fairly severe neck injury.’ Under the discussion section of the aforementioned report of Dr. Mclvor the following appears: ‘I belieye the
The general statement of the board that it relies upon the evidence before it does not comply with the requirements of section 5908.5 of the Labor Code and must be disregarded.
The decision of the Workmen’s Compensation Appeals Board is annulled.
Traynor, C. J., Tobriner, J., Mosk, J., Burke, J., and Sullivan, J., concurred.
We thus need not consider reports other than Dr. Mclvor’s, including one that the entire disability was due to the preexisting nonindustrial condition. In any event, this report would not support apportionment. (Berry v. Workmen’s Comp. App. Bd., supra, 68 Cal.2d 786, 792.)
Dissenting Opinion
I dissent. I would affirm the judgment.
The petition of the respondent board for a rehearing was denied October 30, 1968. McComb, J., was of the opinion that the petition should be granted.