State Compensation Insurance Fund v. Workers' Compensation Appeals Board

Opinion

ALLPORT, J.

On May 23, 1977, this court granted State Compensation Insurance Fund’s petition for writ to review opinion and decision after reconsideration made by the Workers’ Compensation Appeals Board on December 9, 1976, in the matter of Joseph J. Gaba, applicant v. City of Gardena; State Compensation Insurance Fund, Defendants, WCAB No. 74LB72540, whereby said board awarded Gaba, inter alia, a permanent disability award of 86 percent for a “moderate heart disability and necessity to avoid emotional stress and strain” without apportionment for a previous permanent disability award.

The matter came on for hearing before this court on July 20, 1977, as directed. We have determined, for reasons stated by our Supreme Court in

Mercier

v.

Workers’ Comp. Appeals Bd.,

16 Cal.3d 711 [129 Cal.Rptr. 161, 548 P.2d 361], that the opinion and decision after reconsideration must be annulled.

It appears that while employed as a police officer with the City of Gardena, Gaba sustained an industrial injury to his spine resulting in a permanent disability award of 50 percent dictating his retirement in

[15]

October 1970. In May of 1974 he developed symptoms of heart disease and in July of that year underwent a triple venous coronary bypass procedure. Following a determination by the workers’ compensation judge that the heart disease was not industrial, the board granted reconsideration on March 19, 1976, and determined the heart condition to be in fact compensable. The matter was then presented to a rating specialist with instructions to rate for “moderate heart disability and necessity to avoid emotional stress and strain,” and to “[c]onsider that prior to the above described disability the applicant had back disability limiting him to light work.” Based upon these instructions the specialist rated the disability resulting from the heart condition at 86 percent without apportionment. In June of 1976 the rating specialist, apparently in response to the board’s inquiry, reported as follows: “In reviewing your instructions, I noted that I was asked to ‘consider’ the prior back disability. I felt that this was not the same as asking me to subtract the prior disability. [1f] I make the distinction because I do not see any duplicating factors between the heart disability and the back disability. Putting it another way, I would feel that in light of the language that was used, i.e., the reference to moderate heart disability, that there is no overlap of disabilities in this particular case. [U] If you feel that my interpretation is incorrect, I would suggest that you add to the last line of the instructions, ‘resulting in overlapping disability’ and convert the period after the word ‘work’ to a comma.”