Majority
Opinion
Plaintiff is the widow of Perry M. Kuntz, who died as the result of a pulmonary embolus (a blood clot in the lung) he
The decedent, Perry M. Kuntz, commenced his employment with Kern County in the year 1959. He was employed in the parks department and his duties consisted of transporting prisoners from the Kern County Industrial Farm and Road Camp to the various county parks, and supervising their work in the parks.
In 1963, decedent was transferred from the parks department to the Kern County Industrial Farm and Road Camp and was assigned to work as a guard at the Lerdo Facility; this facility contained between 225-350 inmates, and it was decedent’s function to make certain that no one escaped and to prevent physical altercations between the prisoners. A
1 Unless otherwise stated, all statutory references are to sections of the Government Code.
Commencing in 1964, decedent noticed that he incurred chest pains and a shortness of breath when working at high altitudes. Because these conditions were associated with a heart problem, he commenced to use the drug Digoxin; occasionally he also used the drug Nitroglycerin. During the following year, decedent developed high blood pressure; in addition, it was ’discovered that he was mildly diabetic. Decedent took medication to control the high blood pressure and the diabetes.
In 1970, decedent’s chest pains occurred more frequently and his shortness of breath came more readily. About a year later, decedent sustained a cerebral arteiy thrombosis which partially paralyzed his right side. He recovered from the stroke sufficiently to return to work, but the illness left him with a slight speech impediment, a limp and an inability to grasp normal writing instruments such as a pen or pencil; the chest pains were more frequent, and they even occurred when he was walking on level ground.
In February 1972, a medical examination disclosed that decedent had an arteriosclerotic heart disease (i.e., a thickening and hardening of the arteries). In April of that year, a coronary arteriogram was performed, and it was discovered that the left ventricle of decedent’s heart was hypokinetic. The right coronary artery was obstructed completely, and the left coronary artery appeared aneurysmal. The circumflex artery showed an 80-90 percent obstruction, and there was a 90 percent constriction of the left anterior descending coronary artery.
On May 17, 1972, decedent was taken into surgery and a coronary artery by-pass was performed; the saphenous vein in the leg was removed and was grafted in place of an obstructed artery. After the surgery, decedent sustained an embolus in the left brachial artery; the blood, clot was removed surgically. Then, decedent sustained a pulmonary embolus and, as a result of the embolus, died on May 28, 1972;
Following her husband’s death, plaintiff applied for the service-connected death allowance established by section 31787; the application was set for hearing before a referee appointed by defendant’s board of retirement. We briefly summarize the remaining evidence presented at the hearing.
During the period that decedent was employed as a guard at the various facilities operated by the Kern County Industrial Farm and Road Camp, and later by the Kern County Sheriff’s office, he was extremely fearful of -his own safety. For example, he became “uptight” after disturbances between prisoners; when he had to search for weapons, decedent would shake. He also became “uptight” while working at the Apache Camp when the telephone lines froze during winter, impairing the camp’s communication system.
In 1968, after decedent returned to the Lerdo Facility, his superior noticed that Mr. Kuntz’ hands trembled whenever he went into the barracks at night to count prisoners; in fact, decedent, with his own money, purchased a walkie-talkie set so that he could acquire help quickly if he were attacked by a prisoner. It also was noticed that when Mr. Kuntz was called back after working hours due to an ongoing disturbance or suspected trouble, he would become very tense and nervous.
As time progressed, decedent became very frustrated with his job because he could not strike back when verbally or physically abused by prisoners. On one occasion, after he was kicked by a delirious and violent prisoner, decedent told his son, who had witnessed the incident, that he was angiy because he could not kick back; as he related the incident, decedent started to suffer chest pains and had to lie down. Following his stroke in 1971, decedent became very apprehensive as to the obvious limitations of his physical ability to perform his job.
The only medical evidence presented was a written report prepared by Dr. Alan Frank. After summarizing decedent’s employment and medical history, the doctor reported that decedent had been experiencing progressive sclerosis of his coronary arteries for perhaps 35 years prior to his death. He also reported that in his opinion “. . . the emotional and
At the conclusion of the hearing, the referee concluded that decedent’s “. . . disability . . . did not arise from or out of his employment. . .” with Kern County. Then, when defendant’s board of retirement adopted the referee’s decision and denied plaintiff’s application for the service-connected death allowance, plaintiff petitioned the superior court for a writ of mandate to review the administrative decision. (Code Civ. Proc., § 1094.5.) The matter was submitted to the court on the transcript of the hearing conducted by the referee and the documentary evidence introduced at that hearing.
In September 1975, the superior court, after reweighing the evidence pursuant to the mandate of Strumsky v. San Diego County Employees’ Retirement Assn. (1974) 11 Cal.3d 28 [ 112 Cal.Rptr. 805 , 520 P.2d 29 ], entered judgment in favor of defendant. The court found in essence that Perry M. Kuntz was employed by Kern County as a correctional officer from November 1959 until his death on May 28, 1972, that in the course of his employment he was subjected to physical and emotional stress ordinarily associated with law enforcement work in dealing with prisoners, and that he feared for his safety and expressed frustration because his duties prevented him from retaliating when prisoners verbally or physically abused him. The court further found that prior to his death, decedent developed a pulmonary embolus causing his death and that the .. pulmonary embolus developed as a complication of his coronary bypass surgery with saphenous vein graft, . . .” In addition, the court found that the coronary by-pass surgery with the saphenous vein graft was performed upon decedent “. . . as a result of [his] coronary artery sclerosis, which in turn was due to or a consequence of diabetes mellitus.” Lastly, the court found that the emotional and physical stress experienced by decedent as the result of his work as a correctional officer with Kern County materially aggravated and accelerated his coronary artery sclerosis. From these findings, the court concluded that the plaintiff was not entitled to the service-connected death allowance established by section 31787 because she . . failed to sustain her burden of establishing that her deceased husband’s death was the proximate result of an injury or disease arising out of his employment.”
Furthermore, the decisions interpreting the workers’ compensation law of this state (Lab. Code, div. 4), which adhere to the proposition that an employer takes his employee as he finds him, and that a disability from a preexisting injury or disease, or a death resulting therefrom, is compensable if the employee’s work aggravates or accelerates the injury or disease, are authoritative. (See Lamb v. Workmen’s Comp. Appeals Bd. (1974) 11 Cal.3d 274 , 282-283 [ 113 Cal.Rptr. 162 , 520 P.2d 978 ]; Ballard v. Workmen’s Comp. App. Bd. (1971) 3 Cal.3d 832 , 837 [ 92 Cal.Rptr. 1 , 478 P.2d 937 ]; Smith v. Workmen’s Comp. App. Bd. (1969) 71 Cal.2d 588 , 592 [ 78 Cal.Rptr. 718 , 455 P.2d 822 ]; 2 Hanna, Cal. Law of Employee Injuries and Workmen’s Compensation (2d ed.) §§ 11.01 [4][b]; 11.02 [1] and [2], 11.03 [5][e], 14.04 [2][f].) While the County Employees Retirement Act of 1937 and the workers’ compensation law serve diffferent functions, they are related in subject matter and harmonious in purpose. (Minor v. Sonoma County Employees Retirement Bd. (1975) 53 Cal.App.3d 540 , 544 [ 126 Cal.Rptr. 16 ]; Pathe v. City of Bakersfield (1967) 255 Cal.App.2d 409 , 414-415, 416 [ 63 Cal.Rptr. 220 ].) Both laws are designed for the comfort, health, safety and general welfare of employees;[2] as to the payment of death and disability benefits, each contains essentially similar language;[3] both must be construed liberally.[4]
2 Compare California Constitution, article XX, section 21, with Government Code, section 31451.
3 Each law uses the phrase “arising out of and in the course of employment.”
4 Compare Labor Code, section 3202, with 38 Cal.Jur.2d (1957) Pensions, section 5, page 316.
Defendant apparently does not challenge the thesis that an aggravation or acceleration of a preexisting disease by an employment-related factor will support a conclusion that the disease has arisen out of and in the course of employment within the ambit of section 31787; it has not argued to the contrary in this appeal. Defendant asserts, instead, that the trial court’s judgment is sustainable on the ground that decedent’s death was not the result of the aggravation or acceleration of his preexisting arteriosclerosis since he did not die directly from that disease, but from an intervening act—the pulmonary embolus resulting from his surgery. Defendant relies upon Lindsay v. County of San Diego Ret. Bd. (1964) 231 Cal.App.2d 156 [ 41 Cal.Rptr. 737 ] to insist that a service-connected death allowance was not payable to plaintiff for this reason.
In Lindsay; the employee, a deputy sheriff, underwent surgery to correct an ulcer he claimed was caused by the stress and strain of his employment; the surgery resulted in permanent incapacitation. The employee’s claim for service-connected disability benefits under the County Employees Retirement Act of 1937 was disallowed by the county board of retirement, and he petitioned the superior court for a writ of mandate and then appealed from an adverse judgment entered in favor of the retirement board. The judgment was affirmed.
We are not persuaded by defendant’s argument. In the case at bench, the trial court expressly found that decedent’s preexisting heart disease was materially aggravated and accelerated by the emotional and physical stress of his work. This finding carries with it the clear implication that decedent’s disease arose out of and in the course of his employment and that his work accelerated the need for the heart surgery which ultimately resulted in his death. The court also found that the pulmonary embolus that caused the death developed as a complication of the surgery. As a consequence, the court necessarily found that there was a direct and traceable connection between decedent’s death and the emotional and physical strain arising from his work as a correctional
The case of Lindsay v. County of San Diego Ret. Bd., supra, 231 Cal.App.2d 156 , is distinguishable because the court’s decision can be justified on the theory that there was substantial evidence to prove that the employee’s personal and marital problems, not his employment as a deputy sheriff, caused his ulcer. On the other hand, the recent decision of the California Supreme Court in Strumsky v. San Diego County Employees’ Retirement Assn., supra, 11 Cal.3d 28 , is more directly in point. There, the employee, a sergeant in the San Diego , County Marshal’s office, had suffered from hypertension since boyhood due to a congenital narrowing of the aorta. Later, his condition was aggravated by progressive arteriosclerosis which became advanced during his employment in the marshal’s office; as in this case, there was evidence that the employee’s arteriosclerotic condition was accelerated by the stress and tension inherent in his occupation. Also as in this case, surgery was performed on the employee to correct the condition. Lastly, as here, the employee died as a result of complications arising from the surgery. The employee’s widow then applied for a service-connected death allowance pursuant to section 31787, and her application was denied.[5] She petitioned the Superior Court of San Diego County for a.writ of mandate and her petition was denied. The Supreme Court reversed the judgment because the lower court in denying the writ used the substantial evidence test instead of reweighing the evidence as it wa? required to do. However, the high court, in the interests of judicial economy, noted that the applicant’s evidence would have supported a finding that the employee’s death was service-connected in nature. (Supra, 11 Cal.3d at p. 46, fn. 18.)
5 The only real difference between Strumsky and the present case is that in Strumsky there was considerable conflict in the evidence concerning the extent to which the stress and tension of the decedent’s occupation affected the development of the arteriosclerosis.
Thompson, J.,[6] and Goldstein, J.,* concurred.
* Retired judge of the superior court sitting under assignment by the Chairman of the Judicial Council.
Cases cited
- Strumsky v. San Diego County 11 Cal.3d 28 p. 420, p. 423
- Grant v. Board of Retirement 253 Cal.App.2d 1020 at 1025 p. 421
- Lamb v. Workmen's Compensation Appeals Board 11 Cal.3d 274 at 282-283 p. 421
- Ballard v. Workmen's Compensation Appeals Board 3 Cal.3d 832 at 837 p. 421
- Smith v. Workmen's Compensation Appeals Board 71 Cal.2d 588 at 592 p. 421
- Minor v. Sonoma County Employees Retirement Board 53 Cal.App.3d 540 at 544 p. 421
- Pathe v. City of Bakersfield 255 Cal.App.2d 409 at 414-415, 416 p. 421
- Union Iron Works v. Industrial Accident Commision 190 Cal. 33 at 43-44 p. 422
- Lindsay v. County of San Diego Retirement Board 231 Cal.App.2d 156 p. 422, p. 423
- Dillard v. City of Los Angeles 20 Cal.2d 599 at 602-604 p. 423