Tanenbaum v. Industrial Accident Commission

WASTE, C. J.

Review to annul an award of the Industrial Accident Commission.

The petitioning employee, a woman fifty-four years of age, was injured in the course and scope of her employment as a grocery clerk when, upon being accidentally run against by another employee, she was precipitated backward, striking the tip of her right shoulder against the corner of a fruit-stand. That the injury arose out of the employment is not questioned. Following hearings upon the application for adjustment of claim, the commission determined that petitioner was entitled to a permanent disability rating of 32% per cent. Subsequently, and upon petition of the employer’s insurance carrier, the commission found that “said permanent disability was partly caused by preexisting dormant disease and partly by said injury” and apportioned the same on the basis of 33% per cent to preexisting disease (arthritis) and 66% per cent to the industrial injury. Section 3 (4) of the Workmen’s Compensation Act authorizes such apportionment. It provides that “the term ‘injury’, as used in this act, shall include any injury or disease arising out of the employment including injuries to artificial' members. In case of aggravation of any disease existing prior to such injury, compensation shall be allowed only for such proportion of the

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disability due to the aggravation of such prior disease as may reasonably be attributed to the injury.”

We shall not attempt to detail the contents of the several medical reports filed with the commission. Substantially all of them recognize the presence of a preexisting, though latent, arthritic tendency in petitioner’s system. Petitioner testified that prior to the injury she had never suffered from arthritis, rheumatism or other joint or muscular ailments.

It is the petitioner’s contention that the amended findings and award are without justification or support and that the entire disability, as originally determined, should be charged to the injury. In short, it is urged that there can be no apportionment of liability except where the preexisting disease is both active and disabling.

In support of her theory that there can be no apportionment of disability in the present case because of the dormant character of the preexisting disease, the petitioner refers us to such cases as