RONALD C. WILKINSON, Pеtitioner, v. WORKERS’ COMPENSATION APPEALS BOARD, TAUREAN RESTAURANT et al., Respondents.
L.A. No. 30446
Supreme Court of California
May 25, 1977
Modified June 23, 1977
19 Cal. 3d 491 | 564 P.2d 848 | 138 Cal. Rptr. 696
Banks & Leviton and Eugene Leviton for Petitioner.
Charles L. Swezey, Philip M. Miyamoto, Thomas J. McBirnie, Evans, Dalbey & Cumming, Andrew W. Barclay and Barry F. Evans for Respondents.
OPINION
TOBRINER, Acting C. J.—This is a petition for writ of review by applicant Ronald Wilkinson, who incurred successive industrial injuries to both knees and obtained an award of $7,175 based upon a determination that each accident caused 15¼ percent permanent disability. Wilkinson claims he should have received an award of $8,662.50 based upon a combined disability for both injuries of 30½ percent. Wе sustain Wilkinson‘s contention and annul the decision of the board.
Under the doctrine established in Bauer v. County of Los Angeles (1969) 34 Cal. Comp. Cases 594, whenever a worker, while working for the same employer, sustains successive injuries to the same part of his body and these injuries become permanent at the same time, the worker is entitled to an award based on the combined disability. Rejecting both the suggestion of the board that Bauer should be limited to life pension cases and the contention of the employer that Bauer has been impliedly overruled by our decision in Fuentes v. Workers’ Comp. Appeals Bd. (1976) 16 Cal. 3d 1 [128 Cal. Rptr. 673, 547 P.2d 449], we apply the Bauer doctrine to the facts of the instant case and direct an award based on the combined disability of 30½ percent.
Applicant Wilkinson was employed as a cook at the Taurean Restaurant in La Habra, Orange County, during the spring of 1972. On April 15, 1972, while carrying a grease trap downstairs to a barrel, he slipped and injured both knees. He reported the injury but did not stop work or seek medical attention. On June 30, 1972, he fell again while carrying a stockpot, injuring his back and both knees. Following this second injury he received medical treatment and, on direction of the treаting physician, ceased working as a cook, a job which requires prolonged standing. The referee found that both injuries arose out of and occurred in the course of employment; that finding is not challenged before this court.
Wilkinson applied for workers’ compensation benefits for both injuries. On April 17, 1973, the workers’ compensation judge found that his injuries were not stable and awarded only temporary disability benefits. At the hearing of February 20, 1974, the workers’ compensation judge determined that the injuries had become permanent, inferentially at the same date.1 Thus Wilkinson sustained injuries to the same portion of his body, while working for the same employer, and these injuries became permanent at thе same time: the three elements essential for application of the Bauer doctrine.
Because of evidence that Wilkinson had prior knee problems caused by athletic injuries, the judge ordered 50 percent of the objective disability (the limited flexion and muscle atrophy) apportioned to those prior nonindustrial injuries. After deducting the disability allocated to such prior injuries, the rating specialist found a total combined disability attributable to the two industrial accidents of 30½ percent. The judgе apportioned the industrial disability caused by the injuries of April 15 and June 30 equally between the two injuries, rating each at 15¼ percent. Applying the formula subsequently approved by Fuentes v. Workers’ Comp. Appeals Bd., supra, 16 Cal. 3d 1, for calculation of benefits in multiple injury cases, the judge awarded Wilkinson $3,587.50 for each injury, or a total of $7,175.
Wilkinson sought reconsideration, contending that he should have
In apportioning Wilkinson‘s industrial disability between the injuries of April 15 and June 30 and in finding an equal division of disability, the board relied on
In apportioning Wilkinson‘s disability pursuant to
In Bauer the worker incurred successive back injuries while employed by the same employer. Since the combined disability exceeded 70 percent, the worker sought a life pension pursuant to
The board relied upon a prior panel decision in Revere Copper and Brass v. W.C.A.B. (Dunlap) (1969) 34 Cal. Comp. Cases 532. In that case a worker suffered three successive heart injuries which became permanent at the same time but rated separately at 66½ percent, 67 percent, and 67 percent. Instead of awarding the worker a pension from the Subsequent Injuries Fund based upon the latter two injuries (see
The Bauer doctrine is consistent with the language of
Bauer also serves the practical purpose of avoiding the necessity for apportioning disability in a class of cases in which, because of the nature and timing of the injuries, any apportionment is likely to be unsupported by substantial evidence. The present case illustrates the point. Wilkinson did not seek medical help until after his second injury, with the result that the medical experts were only able to view the combined effect of both injuries. Although Dr. Roback indicated that the
The deficiency in the evidentiary support for the board‘s decision in the present case goes beyond the question whether the disability should be apportioned equally or unequally between the two industrial injuries. Before the board can make any apportionment between two injuries, the board must be presented with substantial evidence to show that the normal progression of the earlier injury would cause permanent disability. (See Hulbert v. Workmen‘s Comp. Appeals Bd., 47 Cal. App. 3d 634, 640 [121 Cal. Rptr. 239]; Avila v. Workmen‘s Comp. App. Bd., supra, 14 Cal. App. 3d 33, 37.) Wilkinson correctly points out that no such evidence exists. The record demonstrates only that the April 15 injury had not produced permanent disability by the date of the second injury and no physician asserts that the earlier injury would have evеntually progressed to permanent disability without the additional trauma of the second injury.
As we have stated, this absence of substantial evidence to support apportionment is typical of Bauer injuries. When as here the physicians do not see the worker until after the second injury, any attempt on their part to allocate the combined disability between the two injuries is likely to be no more than speculation and guesswork. But even in cases in which the worker has been examined by a physiciаn between the two injuries, the interaction between the injuries may make apportionment of disability impossible or inequitable. The second injury may prevent the first from healing properly, converting that which would have been a temporary disability into a permanent disability; the first injury may render the injured part of the body unusually weak or sensitive and thus contribute to the damage caused by the second. Consequently, awards for each injury as if the other had not occurred would necessarily be based uрon hypothetical disabilities which, added together, total to far less than the actual disability suffered by the worker and observed by the reporting physicians.
Respondents, however, contest the application of the Bauer doctrine to the present case. Counsel for the board observes that Bauer, Revere Copper & Brass, and later board proceedings following those authorities all involved claims for a life pension; he suggests in his brief that perhaps the doctrine should not be applied to the present case since no life pension is at issue here.
The board‘s use of the Bauer doctrine only in life pension cases, however, does not indicate that the doctrine should be so limited. All of the cited cases arose prior to the effective date of the amendments to
As we have noted, the Bauer doctrine rests on the language of
Concluding that the Bauer doctrine cannot reasonably be limited to life pension cases, we turn to the contention of respondent employer that our decision in Fuentes v. Workers’ Comp. Appeals Bd., supra, 16 Cal. 3d 1, impliedly disapproved that doctrine. Fuentes involved a single injury, apportioned 58 percent to industrial causation and 42 percent to nonindustrial cаusation; we interpreted
Fuentes is relevant to the present case only in that it can arguably be construed as representing a view of workers’ compensation policy which may appear inconsistent with the views underlying Bauer. Bauer, for example, asserted that it was equitable to award a worker who had suffered successive back injuries, causing a combined disability of 70 percent, the same benefits as would be awarded a worker who suffered a single back injury causing 70 percent disability. Fuentes, on the other hand, interpreted
Respondent employer observes that Fuentes rests in part on the policy of encouraging employers to hire and retain handicapped persons (see 16 Cal. 3d at p. 6) and contends that the Bauer doctrine conflicts with that policy. But state policy favoring the handicapped would have to be stretched beyond all reasonable bounds before it would clash with Bauer. The Bauer doctrine as presently limited only applies to cases in which
Finally, we point out that a decision disapproving Bauer, or holding that Fuentes had impliedly disapproved Bauer, would not remedy the lack of evidence to justify apportionment characteristic of this and other cases which fall within the Bauer doctrine. Unless we sanction a departure from the rule that all findings must be supported by substantial evidence, the board in such cases must still base its finding and award upon the combined disability which is the only one observed and described by the medical experts.
It is a settled principle of statutory interpretation that “The contemporaneous administrative сonstruction of a statute by an administrative agency charged with its enforcement and interpretation is entitled to great weight unless it is clearly erroneous or unauthorized.” (Rivera v. City of Fresno (1971) 6 Cal. 3d 132, 140 [98 Cal. Rptr. 281, 490 P.2d 793].) The board‘s promulgation of the Bauer doctrine represents both a reasonable construction of
Mosk, J., Sullivan, J.,* and Files, J.,† concurred.
RICHARDSON, J., Concurring and Dissenting.—I concur in the judgment because the peculiar facts of this case afford no basis for concluding, either that the first industrial injury had produced a permanent disability at the time that the second injury occurred, or that such permanent disability would have оccurred even in the absence of the second injury. The nature of these two injuries, their similarity in both cause and result, their proximity in time, and the lack of any medical evaluation as to the effect of the first injury alone, combine to render suspect any attempt at apportionment. Indeed, none of the examining physicians expressed any opinion as to whether, or how, the industrial injuries in this case should be apportioned. Our review of the board‘s apportionment of disability must, of сourse, be based upon the entire record. (
I do not concur, however, in any inference which may flow from a superficial reading of the majority opinion, and which may suggest that
Where, however, in contrast, the record does reflect a “previous” disability,
In the matter before us, therefore, apportionment would have been called for even though disability from both injuries became permanent at the same time, had the evidence indicated that the April injury would have progressed normally to permanent disability whether or not the June accident had occurred. (Zemke v. Workmen‘s Comp. App. Bd. (1968) 68 Cal. 2d 794, 796 [69 Cal. Rptr. 88, 441 P.2d 928]; Berry v. Workmen‘s Comp. App. Bd., 68 Cal. 2d 786, 790 [69 Cal. Rptr. 68, 441 P.2d 908].)
It is arguable that the policy considerations behind apportionment of successive disabilities are less relevant when those disabilities were all incurred in service to the same employer. In such cases, unlike those involving multiple employers or nonindustrial conditions, there is no danger of a disproportionate assessment upon the most recent employer. Indeed, when the separate-award rules interact with the progressive-benefit scale, a single employer actually receives a “windfall” in those cases in which a combined disability incurred in his service is produced in installments, when compared with the same disability arising from a single incident. Nonetheless, presumably the policy underlying
Clark, J., concurred.
On June 23, 1977, the opinion was modified to read as printed above.
*Retired Associate Justice of the Supreme Court sitting under assignment by the Chairman of the Judicial Council.
†Assigned by the Chairman of the Judicial Council.