Robinson v. Workers' Compensation Appeals Board

During this seven-year period petitioner observed no work limitation because of his back, experienced no difficulty with his back, never saw a physician in regard to his back, and lost no time from work. There is no dispute with respect to these factual aspects of the case.

The board’s apportionment conclusion rests upon the reports of two physicians, Dr. Holmboe and Dr. MacKinnon. The former, who first examined petitioner in 1978, stated in his report: “In my opinion, the patient would have had at least prophylactically a Category D, or 25 per cent standard rating for his laminectomy performed in 1965. As a precautionary measure I generally place all postlaminectomy patients in this category only to protect them from the very thing that happened to this patient, that is, with continued repeated lifting, bending and stooping the patient ends up with recurrence of pain, sometimes not improved by any other treatment method. We now have a patient who is considerably more disabled than he was prior to his injury and in fact, reports becoming asymptomatic six months after he returned to work in 1966. I am always amazed that in spite of a 32 per cent disability rating that patients become asymptomatic and feel that they are normal. I guess they must feel also that the disability rating that they receive was a windfall. In any event, prophylactically the patient should have had disability and apparently this was the case. So it would seem fair to me to subtract the patient’s present disability from that that he had already received in settling this case.”

Dr. MacKinnon, who did see petitioner after his first injury, stated in a report: “The injury of June 13, 1975 consisted of bending, picking up a 15 pound weight and raising it. This caused back and right leg pain.

Of course, where the injured worker was actually under a prophylactic restriction for a preexisting condition at the time of the second injury, apportionment to a preexisting disability is proper. (Amico v. Workmen’s Comp. Appeals Bd., supra, 43 Cal.App.3d 592 , 606.) But the fact that a worker received a permanent disability rating for his earlier injury, and was in fact partially 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. Therefore, an employee .. . with a specified disability who is able to rehabilitate himself will be compensated for his loss of earning capacity or, as expressed statutorily, loss of ability ‘to compete in an open labor market’ within a given number of weeks.” (Apportioning Permanent Disability, supra, 15 Cal. Western L.Rev. at p. 396.) And “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, supra, at p. 608.)

Normally, whether 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, supra, 43 Cal.App.3d at p. 606), i.e., whether the employee suffered from an actual incapacity to perform the tasks usually encountered in his or her em

Finally, the Supreme Court has recently observed that “[i]t is the employer who benefits from a finding of apportionment, and both the board and writers on the subject have construed the law to require the employer to bear the burden of demonstrating that apportionment ... is appropriate.” (Pullman Kellogg v. Workers’ Comp. Appeals Bd. (1980) 26 Cal.3d 450 , 456 [ 161 Cal.Rptr. 783 , 605 P.2d 422 ].) While that case involved a claim of apportionment to alleged disability from a preexisting disease under section 4663, nothing in the opinion or in reason suggests that a different rule would apply to apportionment claimed under section 4750.

Applying these principles to the instant case we find no substantial evidence to support the board’s conclusion. The fact that petitioner was under prophylactic limitations when he first returned to work after his laminectomy does not establish that he still suffered disability nine years later. Both petitioner and his employer apparently assumed that those restrictions did not continue indefinitely, and the board’s decision apportioning disability on the basis of “very heavy lifting” is itself inconsistent with those limitations. Moreover, the evidence from both petitioner and his employer established that for some seven years prior to his second injury he regularly performed all of the warehouseman work that he previously performed. While he may not have

In any event, the record is lacking in competent evidence that petitioner’s “preexisting condition did interfere or would have actually interfered” with his performance of work which he was capable of performing prior to his first injury. (Franklin v. Workers’ Comp. Appeals Bd., supra, 79 Cal.App.3d at p. 241.) While the board relied upon the reports of Drs. Holmboe and MacKinnon for the proposition that petitioner did not entirely rehabilitate himself from the earlier prophylactic restrictions, neither physician provided an explanation of that conclusion in terms of evidence compatible with applicable legal principles. Dr. Holmboe, who never saw the patient before the second injury, expressed chagrin that a patient who received a 32 percent disability rating would regard that as a “windfall” and claim rehabilitation; but the only explanation contained in his report for his conclusion that “the patient would have had at least prophylactically a Category D, or 25 per cent standard rating for his laminectomy performed in 1965” was his statement that “As a precautionary measure I generally place all postlaminectomy patients in this category only to protect them from the very thing that happened to this patient.” And Dr. MacKinnon in his report provides no explanation at all for his conclusion that “There was of course a degree of permanent disability existing before June 1975—probably category ‘D.’”

“Although the board must rely on expert medical opinion in resolving the issue of apportionment, an expert’s opinion which does not rest upon relevant facts or which assumes an incorrect legal theory cannot constitute substantial evidence upon which the board may base an apportionment finding.” (Zemke v. Workmen’s Comp. App. Bd. (1968) 68 Cal.2d 794 , 798 [ 69 Cal.Rptr. 88 , 441 P.2d 928 ].) Furthermore, “[a]n expert opinion is also insufficient to support a board determination when that opinion is based on surmise, speculation, conjecture, or guess.” (Place v. Workmen’s Comp. App. Bd. (1970) 3 Cal.3d 372 , 378 [ 90 Cal.Rptr. 424 , 475 P.2d 656 ].) Finally, “in order for the Board to rely upon a physician’s evaluation as to apportionment under section 4750, ‘the physician must disclose adequate familiarity with the preexisting disability.’ [Citation.] That is, the physician must describe in detail the exact nature of the preexisting disability and the basis for such opinion in order that the Board be able to determine whether the

By these standards, the medical reports relied upon by the board cannot serve as substantial evidence in support of its conclusion. Neither physician claims on the basis of medical evidence that a patient cannot rehabilitate himself from the type of injury which petitioner suffered in 1965, or from the effects of the operation which was performed; and neither physician disputes the evidence offered by petitioner that he in fact did so. Here as in Amico, where the facts were quite similar, “[t]he fact that this applicant made a better recovery than he had a right to expect from his first operation should not place him in a position inferior to that of a fellow worker whose industrially caused disability is compounded by the existence of a pathological condition which was previously asymptomatic.” (Amico, supra, 43 Cal.App.3d at p. 606.)

The award is annulled and the case is remanded to the Workers’ Compensation Appeals Board for further proceedings consistent with this opinion.

Racanelli, P. J., and Newsom, J., concurred.