Hardware Mutual Casualty Co. v. Workmen's Compensation Appeals Board

FRIEDMAN, J. The employer challenges a workmen’s compensation award for temporary partial disability at the rate of $70 per week from March 30, 1966, through June 1, 1966.

Key findings of the referee were: (a) that Hargrove, the claimant, was employed as a mechanic by John Geer Chevrolet Company when on February 25, 1966, he sustained an injury in the course of his employment; (b) that the injury caused temporary partial disability beginning March 30, 1966, to and including June 1, 1966 “during which time work which the applicant could perform was not available to him.” The referee directed deferment of the question of permanent disability. The Workmen’s Compensation Appeals Board denied reconsideration.

Hargrove, an automobile mechanic, had been working for the Geer firm continuously since 1957, except for several months of employment with another firm in 1965. While working for the other firm he incurred a back injury, for which he was compensated. After his return to John Geer the foreman favored him with lighter work because of his back condition. [64];Hargroye was pushing a car on February 25, 3966, when he slipped in an oil slick and fell. Although in pain, he continued working after the accident. On March 29, 1966, he was discharged for causes unrelated to his physical condition. He did not work thereafter.

On April 20, 1966, he called on Dr. Wilbur, complaining of back pain. Dr. Wilbur prescribed heat and rest and referred him to Dr. Schubert, an orthopedic surgeon. Dr. Schubert’s diagnosis was “osteoarthritis of the lumbar spine with a history of superimposed strain. ’ ’

At the time of the hearing, June 15, 1966, Hargrove testified that he was still bothered with pain; that he would have been physically able to continue working for Geer if they had continued to favor him with light work; that at the time of the hearing, he had the ability to work while standing, but could not get up and down on the mechanic’s creeper. He had been unemployed since the time he left John Geer and had earned no money. On June 2, 1966, he commenced working with several persons at a service station in an attempt to organize an auto repair business. There is no evidence that he had sought other employment.

The employer contends that Hargrove was physically able to perform the same kind of work both before and after his accident of February 25, 1966, thus was not temporarily disabled, citing Witt’s Dairy v. Industrial Acc. Com., 37 Cal.App.2d 16 [98 P.2d 812], and Bethlehem Steel Co. v. Industrial Acc. Com., 54 Cal.App.2d 585 [129 P.2d 737], In both the cited decisions the question was whether the claimant’s temporary disability had terminated. In both eases the claimant testified that he was physically able to return to work. Since the claimant was physically able to do the same work as before his injury, the court held that the award of continued temporary disability had no evidentiary support.