Fred Gledhill Chevrolet v. Industrial Accident Commission

PETERS, J. This proceeding involves the proper allocation of liability for temporary disability indemnity and medical care where the applicant has suffered a series of injuries, in this ease four. The Industrial Accident Commission made the award against Universal Underwriters Insurance Company, the carrier at the time of the third and fourth injuries. This award is supported by the factual determinations made by the commission, and these findings are based on substantial evidence. For these reasons the award should be affirmed.

Applicant, J esse Allison, worked as an automobile mechanic. In the course and scope of Ms employment, he sustained injuries to his back on four occasions—September 1953, wMle employed by Cormier Chevrolet Co., April 1958, November 1961, and July 1962, at wMch times he was employed by Fred Gledhill Chevrolet. Pacific Indemnity Company was the carrier at the time of the first two injuries, Universal at the time of the latter two. After the second injury, applicant had a spinal fusion. The surgery was not completely successful and there resulted a false fusion, or the condition known as pseudo-arthrosis. He continued to feel some pain, but returned to work. He was somewhat restricted on the job, and was favored with the easier work. The tMrd injury resulted in a great increase in pain, and also further restricted Ms working ability for a period. The fourth injury resulted in such incapacity that he could no longer work at Ms job, and he was discharged. Throughout the period involved applicant was under medical supervision, and both testimony and medí[61]cal records were presented by the several parties. Conflicts in the evidence resulted in the appointment of an independent medical examiner, Dr. Rohrer, whose testimony was based upon an examination of the applicant, as well as upon a review of the medical records and the testimony of the other doctors. All of the medical evidence is in agreement that the first operation had not been completely successful and that, at present, further surgery is required.

Applications for compensation for all four injuries were consolidated and, after hearings, an award for temporary disability and medical care was made against Universal. There was no apportionment. Universal’s petition for reconsideration was denied by the commission. As applicant’s condition had not yet become permanent and stationary, no decision was made with respect to liability for permanent disability.

It is well settled that the acceleration, aggravation, or “lighting up” of a preexisting nondisabling condition is an injury in the employment causing it (Tanenbaum v. Industrial Acc. Com., 4 Cal.2d 615 [52 P.2d 215]), and “If the resultant disability is entirely due to the industrial injury lighting up the previous dormant condition, then the employer is liable for that disability and there can be no apportionment.” (State of California v. Industrial Acc. Com., 135 Cal.App.2d 544, 549 [288 P.2d 31].) The award against Universal alone is based on the factual determination that the presént incapacity to work and earn wages, and the present need for further surgery, are attributable to the third and fourth injuries.