Industrial Indemnity Exchange v. Industrial Accident Commission

California Court of Appeal Feb 11, 1949 No. Civ. No. 13899Published

Before: Dooling

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Holding. The court held that the employee's disability was permanent rather than temporary because his condition had reached the maximum level of restoration permitted by the nature of his injury. The court determined that the need for ongoing medical treatment or the possibility of future physical decline does not preclude a finding of permanent disability.

Issues

Whether the employee's total disability should be classified as permanent rather than temporary under the Workmen's Compensation Act.
Whether the need for ongoing medical treatment or potential for future physical change prevents a finding of permanent disability.

Disposition. annulled and remanded

Quotations verified verbatim against the opinion

“The total disability resulting from this injury must therefore be considered permanent and not temporary.”

“The need for medical treatment is not incompatible with a status of permanent disability and may be allowed in connection with an award for permanent total disability where necessary.”

“His disability is now permanent though his physical condition may be subject to change for the worse or to slight periodic improvement.”

DOOLING, J. Respondent herein, Luigi Riccardi, on December 3, 1945, received an injury compensable under the Workmen’s Compensation Act, when a bandsaw with which he was working broke and a small piece of steel lodged in the wall of his heart between the right and left ventricles. It is impossible to remove this metal as the chances of Riccardi surviving such an operation would be only about 5 or 10 per cent. As a result there is a leakage of blood from one ventricle to the other and this puts such an extra burden on the heart that “the patient is unable to do much more than get around at the present time on the level.”

Riccardi was observed by Dr. Moore from shortly after his injury until about June 24, 1946. On that date Dr. Moore reported to the employer’s insurance carrier:

“There is no change in this man’s condition, no change in his complaints.

“I see no value in his reporting to this office for further observation and he has been referred to your Claims Office. ’ ’

Riccardi was then sent to Dr. Roehex. As early as January 22, 1947, Dr. Roehex reported “that Mr. Riccardi’s condition is probably permanent. It is not likely that he will be able to return to active employment.”

Finally on June 30, 1947, Dr. Roehex concluded a report to the insurer with the words: “there seems to be no possibility that Mr. Riccardi will ever be able to return to work. ’ ’

Riccardi was then referred to Dr. Thompson, who stated in a report dated September 22, 1947:

“It is our opinion that Mr. Riccardi is totally disabled and that his condition will become steadily worse. I do not believe his heart lesion is amenable to surgical repair. However his general condition would probably be improved by a regimen including digitalis and restricted activity.”

Thereafter on March 15, 1948, the insurer filed a petition with the Industrial Accident Commission asking that body to determine that the employee was suffering a permanent disability. A hearing was had at which the reports of the doc[101]tors were introduced and Dr. Thompson testified orally that Riccardi is incapable of performing any work and that there is no prospect that his condition will improve as “progress in these things is usually in the opposite direction. ’ ’

Industrial Indemnity Exchange v. Industrial Accident Commission

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