Shipley v. Workers' Compensation Appeals Board

Opinion

WALLIN, J.

Marshall S. Shipley successfully petitioned this court for a writ of review of orders of the Workers’ Compensation Appeals Board overturning a compensation award and denying Shipley’s petition for reconsideration. We reverse the order denying the petition for reconsideration.

Facts

Shipley had been employed as a recreation supervisor for the City of Whittier for over 14 years when he filed his compensation claim. His duties

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included setting up equipment for recreational activities, preparing and marking athletic fields and moving furniture and pianos. He experienced intermittent back pain throughout the course of his employment, for which he received minimal medical treatment.

In September 1985, Shipley’s back pain increased and he was referred to Dr. Biscaro, an orthopedic surgeon, through his group health plan carrier. Biscaro’s examination revealed a herniated disc in the lumbar region of Shipley’s spine. Shipley subsequently underwent a lumbar laminotomy and excision of the disc performed by Biscaro.

Following surgery, Shipley filed his claim. His counsel referred him to Dr. Sharma, who concluded Shipley’s back problems were due to “continuous type of work trauma.” The city referred Shipley to Dr. Hillsman, who concluded his injury was “100% non industrial.”

The case was tried before a workers’ compensation judge, who found Shipley “sustained injury to his spine arising out of and in the course of his employment by the [city] during the period of 9/16/84 through 9/16/85.” The judge awarded temporary disability and allowed the lien of Shipley’s health plan; it took the questions of permanent disability, apportionment and future medical care off calendar and urged the parties to resolve these issues with an agreed medical examiner.

The city petitioned the board for reconsideration of the award on the ground that the evidence did not justify the findings of fact. The board granted reconsideration and on June 25, 1990, it issued its opinion and decision after reconsideration rescinding the findings of the trial judge and issuing a substitute finding that “Shipley did not sustain a cumulative injury to his spine arising out of and in the course of his employment as a recreation supervisor . . . .”