*1 Bank. No. 30332. In Apr. 1976.] [L.A. MERCIER, Petitioner, v. F.

PATRICK APPEALS BOARD COMPENSATION WORKERS’ ANGELES, CITY OF LOS Respondents.

Counsel Marenstein,

Lewis & Alan B. Marenstein and B. Green for Harry Petitioner. as Amici C. Treaster E.

Charles P. Eugene Scully, Kathryn Ringgold behalf Curiae on of Petitioner. McBirnie, Batlin, H. L.

Frank M. Thomas J. Charles Miyamoto, Philip Pines, Wittorff, Burt John T. Neville and H. John Swezey, City Attorney, Lorenzetti, Assistant and William G. City Attorneys, Deputy City Attorney, Respondents.

Opinion a workers’ annulment CLARK, J. compensation seeks Petitioner to a his award permanent part apportioning officer, an industrial a Los In 1970 Angeles petitioner, deter- Board Workers’ back. The Appeals to his Compensation from doing “heavy that the back petitioner mined disability precluded awarded a 34*/2 and percent permanent and bending” lifting repetitive rating. related to have suffered found industrially In 1971 petitioner with the the entire over period disability occurring 1949 to 1971. city, to submit

The referee rating specialist requested “1. Heart based on following: disability rating than moderate. arteriosclerosis, and less more than Applicant slight be limited to should stress. 2. avoid severe emotional Applicant from 3. work between and semi-sedentary. Applicant precluded light out 34’A strenuous activities. Apportion recommendation, after

The referee rating specialist’s adopted for reconsidera- of 40.5 petition disability. Upon apportionment, tion, referee, affirmed Board the Workers’ Compensation both that the back and heart deciding Because the same work. apportion- they overlapped type

performing ment was upheld.1 Work set forth the ‘Guidelines for Capacity’ stated: “According 1The board heavy lifting, repeated Disability, ‘disability precluding Schedule for Permanent Rating half of individual has lost approximately bending stooping contemplates these same According bending stodping.’ capacity lifting,

pre-injury the individual work contemplates in limitation to light ‘disability resulting guidelines, can do work effort’, demands for physical with a minimum in a or walking position, standing work contemplates semi-sedentary in limitation to while ‘disability resulting time in a sitting position, one-half individual can do approximately worjc Petitioner first contends that the two are and distinct therefore nonapportionable. Prior this court’s decision in State Fund v. Ins. Industrial Acc. (Hutchinson) (1963) Com.

377 P.2d 902], successive industrial were if only they apportioned were same Gas Elec. & Co. v. part body. (Pacific Ind. Acc. (Burton) Com. P.2d We 818].) replaced formula, this and mechanistic in Hutchinson that “the rigid holding from a should be disability resulting subsequent compensable to the extent that it can said that the has been decreased what was immediately *4 to the second of this cannot be injury. computation figure determined a a mechanical of method of by application apportionment based whether the occurs to the same of'the anatomical upon part It must come from a consideration of the nature of the body. disability caused the If successive by injury. injuries produce separate disabilities then each is rated without independent separately concern for the theoretical 100 to But if ‘total’ assigned the even ato does not alter subsequent injury, part body, if different of or to in it the labor market is not earning capacity ability compete factors, And if it does alter these should compensable. compensable 53; to the extent of the added.) alteration.” italics (59 behind this rule is to of disabled policy encourage an on for that persons by imposing liability employer only portion attributable to the at (Id., subsequent injury. Hutchinson thus the inflexible rule of Burton one rejected substituting that when the actual decrease in the apportionment proper employee’s and earn is less than the sum of disability ratings for the two added The result is that the injuries will together. employee be awarded that commensurate with his decreased and earn. the mere occurrence Obviously, aof not does In each case it must require apportionment. be determined if the second injury impairs employee’s ability in so, work the same manner as the first If perform apportion- ment is to the extent two proper—but only injuries overlap. time one-half the in a or with a minimum of approximately standing walking position, ” demands for effort whether standing, walking physical sitting.’ (1965) (Tarantino) Acc. Com. Exch. Ins. v. Industrial Truck almost identical facts 178], presented Cal.Rptr. CaI.App.2d neck, low suffered case. The employee present of 3114 rating percent. in a hand resulting permanent right and was awarded attack Subsequently, reversed The Court of 49 Appeal percent. disability rating held two decision Accident Commission an Industrial occurred not be because parts they solely apportioned disabilities, in the out there overlap body. Pointing held that Hutchinson Court apportionment. Appeal required Cal.3d 162 15, 480 not P.2d does lead to a In the result. contrary course of medical treatment for industrial receiving employ- ee infected became serum This court held that when the by hepatitis. arise out of the same section 4750 is inapplicable not The court therefore apportionment required. distinguished Hutchinson situation. that its rule to an different entirely noting applies the rule “We find Hutchinson which states or intimates that nothing for section 4750 successive procedures prescribed such applicable rating injuries, approved italics; *5 of disabilities for a industrial single injury.” (Orig. rating Com. Fund v. Industrial Acc. Injuries (Rogers) Subsequent 136, enacted to “Section 154.) Cal.App.2d promote accident of disabled industrial workmen by prior partially that is cases [citation]; involving single policy inapplicable Therefore, found Hutchinson accident. rating procedures special for are not here.” cases multiple applicable appropriate Bd., 162, v. 4 Cal.3d Workmen’s Comp. App. supra, (Hegglin out, As distinction drawn between Hegglin pointed single accident cases is well-founded. When the two arise out multiple of the same of not industrial accident underlying policy In disabled is discouraging employers hiring persons inapplicable. situation, the such bear is made to employer responsibility all caused accident. When there have two or more one been accidents, the of disabled policy encouraging hiring retaining is best rule of effected persons by application apportionment enunciated in Hutchinson.

Here, the In such arose out industrial events. case, whether the second decreases turns on apportionment or his labor open market in the same manner occur to as first. fact that relevant, two different while does not in anatomical parts body itself preclude apportionment.

Petitioner next that no basis exists for argues logical concluding back and heart is more disabilities disabled suffering than if he had suffered the heart Petitioner further asserts disability. denies him a life he would have’ apportionment pension city been entitled to had he not previous disabilities one of fact—not of is question overlapping logic. The basic of workers’ is to dimin purpose compensation compensate ished Code, 4660, in the labor (Lab. market subd. § rather than (a)) compensate every injury. Proper computation disabilities—either or total—calls for overlapping partial determining of combined and then percentage subtracting due to the (Dow Chemical Co. Workmen’s injury.2 483, Bd. Cal.Rptr. 365]; State Ins. Fund v. A Industrial cc. Com. (Hutchinson), 45, 53; 59 Cal.2d Fund v. supra, Injuries Subsequent Comp. (1974) 40 409-410 (Royster) When 204].) all factors of attributable to the first second, included in the factors attributable to the there total overlap. We must conclude the on the based combined rating properly It clear in this case that the has injuries overlapped, failed show that factor first was not any disability included in the instructions to the rating specialist.

Petitioner is correct in he is not entitled to a life from asserting pension but his tois obtain benefits from the employer, remedy Subsequent Fund. Bd., v. (Dow Chemical Co. Workmen’s Injuries Comp. App. supra, 483, 495; 61 Cal.2d cf. Fund v. Workmen’s Subsequent Injuries Comp. 403, Bd. 40 407-408.) Appeals (Royster), supra, The decision of the Workers’ Board is Compensation Appeals affirmed. from the heal 2As Hutchinson first or recognized, may improve (59 Cal.2d at In such second. case to be disability percentage prior on the

subtracted would be based condition immediately employee’s case, In instant claim of rehabilitation was made. Richardson, McComb, J., Sullivan, J., J., J., Tobriner, and C. Wright, J., concurred.

MOSK, J. I dissent. conclusion of the is refute

To recite remarkable majority merely a it: and heart is less who suffers a back employee the heart disabled than he would have been if he suffered Such tortured eludes me. totally logic In since 1949. who has served his a officer city

This petitioner police 1970, course of his a he sustained back May He disabled. was a found to be 34'/2 as result percent permanently a which restricted continued to work heavy lifting regimen pursuant bending. repetitive a and arteriosclerosis In sustained heart August He directed to avoid which rendered him disabled. was percent work, emotional stress and to light semi-sedentary perform only all activities. An who is more strenuous precluded than disabled entitled to benefits percent permanently to a formula Labor Code section 4659. paid by pursuant prescribed victim 75 officer who became It would seem that those bestowed would receive disabled statutorily percent permanently However, the Workers’ without further benefits question. to be first Board ordered the Thus the

subtracted from the second. disability suddenly lifetime benefits by melted down 401A provided percent,- returns The law dissolved diminishing section 4659 completely. the law of returns. became vanishing 162, 171 4 Cal.3d

In we found “injury petitioner’s a factor more than him lifting pounds liver the factor of distinct from impaired disability entirely separate and the . . The . function caused spine hepatitis. *7 involve liver cells and liver functions destruction of obviously impair- Furthermore, ment or abnormalities of anatomy. portions separate limitations on it clear that two factors petitioner’s impose separate to work.” capacity one, two, for the fact that involved not

Except its on similar facts is injuries, analysis overlap problem remarkably Indeed, most can we substitution relate the persuasive. by simple circumstances of this case in the terms in precisely employed Hegglin: “the to back him from injury petitioner’s heavy lifting was a factor of repetitive bending disability entirely separate distinct from the factor heart function arteriosclerosis— of impaired The heart and the injury damage spine functions involve abnormalities obviously impairment Furthermore, that the is clear two factors anatomy. portions limitations on work.” impose separate petitioner’s capacity rule is extracted from State general majority Ins. Fund Acc. Com. (Hutchinson) (1963) Industrial {ante, in 714): this manner on turns whether decreases “apportionment injury or his in labor employee’s earning capacity open market in (Italics the same manner But added.) as the first.” does not the result reached compel by majority.

It should be obvious that a back layman any injury causing only does not affect an percent disability labor market in the same manner as open heart attack and arteriosclerosis. percént disabling was to the musculoskeletal while the heart was to the system, vascular For the former restriction towas avoid system. lifting, heavy for the latter the-avoidance of emotional stress and strenuous activities. After the former was able to continue his employ- officer, ment as a after the latter he could do Under so. longer all these circumstances it is find disabilities impossible “overlapping” case. this

I would annul the award. Mosk, for a June 1976. Petitioner’s denied application rehearing J., that the be granted. opinion application