Perry v. Workers' Compensation Appeals Board

Opinion

ELKINGTON, J.

We review a decision of the Workers’ Compensation Appeals Board (Board) which terminated, as of April 10, 1975, petitioner Perry’s workers’ compensation temporary disability benefits for an industrial injury.

The following facts are without substantial, if any, dispute.

Perry, 43, in his employment by Santa Fe Trail Transportation Company, customarily lifted sacks of coffee beans weighing about 150 pounds. While so engaged he developed a left inguinal hernia which concededly resulted in an industrial disability. Such an injury is .ordinarily speedily repaired by surgery, after which the disability continues for about six weeks. But without such corrective surgery the worker’s disability may continue indefinitely. Perry, reporting to a hospital for such surgery, was given the customary “pre-op tests.” These tests disclosed an adverse “cardiac condition” of nonindustrial causation, following which there was medical agreement that Perry “was not a candidate for [hernia surgery] because of the serious nature of the heart problem.” Perry was willing to have the necessary operation whenever the heart doctor “gives the okay,” an approval which was not forthcoming. As a result Perry’s hernia and disability continued. The evidence indicated that Perry was under no disability prior to the occurrence of the hernia. And, as we shall see, no contention is made that Perry’s disability was

directly

brought about, in whole or in part, by his heart condition.

[890]

On proceedings before the Board, Perry was awarded temporary disability indemnity from the disability's commencement, February 22, 1975, to and including April 10, 1975. The termination date appeared to rest upon medical opinion that ordinarily all temporary disability terminates about six weeks after a hernia's repair by surgery.

In the proceedings before the Board, Perry unsuccessfully contended that his disability was industrial and that it continued beyond April 10, 1975, and until his hernia with medical approval could be and was surgically repaired.

Respondent Santa Fe Trail Transportation Company, we think correctly, poses the issues now before this court, as follows: