Jones v. Workmen's Compensation Appeals Board

[303]

BRAY, J.

*

Petition for writ of review of opinion and decision after reconsideration of respondent Workmen’s Compensation Appeals Board determining that petitioner’s industrial injury caused no permanent disability.

Question Presented

Was there substantial evidence in the record that petitioner had suffered a prior permanent disability ?

Record

On February 10, 1962, while employed by the City of Sacramento as a street cleaner, petitioner suffered an industrial back injury. Petitioner filed an application for compensation to determine liability for permanent disability, etc. Medical reports were submitted, a hearing had, petitioner’s testimony given and judicial notice taken of the files in two applications for prior industrial injuries.

The referee concluded that petitioner had suffered in the 1962 injury a permanent low back disability which precluded him from heavy work. He found a 39% percent disability, apportioned one-half to a preexisting condition and one-half to the present injury. An award was made accordingly. Upon defendant’s petition for reconsideration respondent appeals board entered its opinion and decision after reconsideration in which it rescinded the prior findings and award and found that the 1962 industrial injury had caused temporary total disability to May 6, 1962, for which petitioner had been fully compensated, and that “it has not been established by a preponderance of the evidence that the injury herein

caused any additional permanent disability.”

(Italics added.)

The difficulty with this ruling is that it presumes the existence of a previous permanent disability. At no time prior to the 1962 injury had it been determined that petitioner was suffering from any permanent disability.

Thus, if, as it appears, the board considered that petitioner now has a permanent disability, which the record shows did not exist prior to the last injury, it logically follows that the permanent disability is due to that injury.