State Compensation Insurance Fund v. Workmen's Compensation Appeals Board

SHOEMAKER, P. J. —Petitioner State Compensation Insurance Fund, insurer of applicant’s employer, County of San Bernardino, seeks review and reversal of the board’s decision after reconsideration. The principal question in the case relates to the applicability of the prohibition against apportionment contained in Labor Code, section 3212.5.

The applicant, Leon J. Schmidt, took a civil service examination for a position in the San Bernardino County coroner’s office, entitled “Criminal Investigator.” He obtained the position and was sworn in as a deputy coroner. At the same time he was sworn in as a deputy sheriff and was given an [773]identification card attesting to that fact. The card was clearly marked “Non-Salaried.” The badge issued to him identified him as “Deputy Coroner and Deputy Public Administrator.” At all times the applicant worked out of the county coroner’s office, and his immediate supervisor was the chief criminal deputy coroner. He carried a gun in his work, and was authorized to make arrests and quell disturbances of the peace occurring in his presence. He was on call 24 hours a day and was called whenever an unexplained death occurred.

The applicant had no symptoms of heart disease before entering into his employment with the county. Heart disease was first detected when the applicant was hospitalized in September 1965 due to shortness of breath and chest pains. He was temporarily totally disabled from September 28, 1965 through October 31, 1965. He returned to work on November 1, 1965, and continued working full-time until April 5, 1966, when his chest pains became acute. He was hospitalized from April 11 through April 19, 1966. His condition at that time was diagnosed as incipient myocardial infarction, arteriosclerosis and mild diabetes mellitus.

An application for compensation was filed with the board on March 25, 1966, wherein the applicant listed his occupation as deputy coroner A hearing was had, and the referee found that the applicant received an injury arising out of and occurring in the course of his employment as a deputy coroner, and awarded, inter alla, compensation for a permanent disability of 30 percent after apportionment. Applicant thereupon filed a timely petition for reconsideration with the board, urging that he was entitled to the prohibition against apportionment set forth in Labor Code, sections 3212 and 3212.5, and that his occupation should have been found to be ‘ ‘ peace officer ” or “ deputy coroner and deputy sheriff. ’ ’