Montyk v. Workmen's Compensation Appeals Board

[335]

FRIEDMAN, J.

J.Petitioner Montyk was employed by American Building Maintenance Company as a janitor. Upon his application for workmen’s compensation benefits, the referee found that petitioner had sustained a hernia as the result of repeated work strains up to April 2, 1965, which is the last day petitioner worked prior to undergoing surgery. On April 5, 1965, petitioner underwent surgery by his own doctor. The referee awarded him temporary disability and the expense of self-procured medical care incurred after April 2, including the cost of the surgery. The award of medical expense was premised on the referee’s conclusion that on April 2 petitioner had told his supervisors of the coming surgery and they had not instructed him not to go to his own doctor.

The Workmen’s Compensation Appeals Board granted reconsideration and made the following finding: " Applicant is not entitled to reimbursement for his self-procured medical expenses inasmuch as applicant arbitrarily refused proffered medical treatment by defendant.” Accordingly, the appeals board eliminated the award for self-procured care but sustained the temporary disability award. Petitioner was issued a writ for the purpose of reviewing the appeals board’s denial of the cost of self-procured medical care.

The only question before us is whether the appeals board finding is supported by substantial evidence. Petitioner urges an additional issue—existence of substantial evidence to support the referee’s finding. The latter is no longer at issue. The appeals board may make a factual determination contrary to that of the referee although the testimony is conflicting.

(National Auto. & Cas. Ins. Co.

v.

Industrial Acc. Com,.,

34 Cal.2d 20, 28-29 [206 P.2d 841] ; see also

Allied Comp. Ins. Co.

v.

Industrial Acc. Com.,

57 Cal.2d 115, 119 [17 Cal.Rptr. 817, 367 P.2d 409].) Where, as permitted by Labor Code section 5315, the appeals board has set aside the referee’s decision and made its own finding based upon independent examination of the record, the decision presented for judicial review is not that of the referee, but that of the appeals board. This court’s reviewing authority now extends to the latter order only. (See Lab. Code, § 5952.)