Franklin v. Workmen's Compensation Appeals Board

Opinion

KINGSLEY, J.

Petitioner, born in 1922, injured his back on December 28, 1957, in the course of his employment as sales manager for respondent

[684]

Sues, Young and Brown, Inc. Temporary disability was furnished for the maximum of 240 weeks. He has had extensive medical treatment, including five spinal surgeries. On October 20, 1969, the referee issued an award for 100 percent permanent disability. On December 5, 1969, the appeals board granted a reconsideration and directed that petitioner be examined by an independent medical examiner. Purportedly on the basis of that report, the board directed the rating bureau to rate for back disability limiting petitioner to “semi-sedentary” work and use of a back brace. After subsequent cross-examination of the independent medical examiner and the rating specialist, the board amended its instructions to call for a rating for back disability limiting petitioner to “sedentary work” and use of a back brace. That instruction produced a rating of 70 percent disability which, adjusted for petitioner’s age and occupation, resulted in an award of 60 percent. Petitioner’s petition for reconsideration was denied and he petitioned this court for annulment. We grant the relief requested.

In this court, petitioner contends: (1) that the evidence, including the testimony and opinion of the independent medical examiner, compels a finding of 100 percent disability or, in any event, compels a finding exceeding the restriction to sedentary work with a back brace; and (2) that the board exceeded its jurisdiction in granting a reconsideration where all of the evidence before the referee supported his finding of a 100 percent disability, so that the sole purpose of reopening was to secure new evidence favorable to the employer and its carrier.

I

It is well settled that the board, if it relies at all on the report and testimony of a medical examiner must give full weight to

all

of the findings of that doctor, and may not omit a factor of disability described by him.

(Luchini