Collins v. Workmen's Compensation Appeals Board

[620]Opinion

PIERCE, P. J. Petitioner Collins seeks review of the appeals board’s opinion and order denying reconsideration of a referee’s decision which found:

(1) That petitioner had sustained an industrial injury for which he was entitled to certain limited costs of medical care and to temporary disability for a brief period; and

(2) That his subsequent nonindustrial injury was completely separate in result, thus making him ineligible for benefits based on his continuing temporary disability, his increased permanent disability and the costs of additional medical and surgical care.

Petitioner contends primarily that the referee’s decision severing the results of the industrial injury from those flowing from the nonindustrial injury is improper in that it is not supported by substantial evidence. Review of the materials upon which the referee’s decision was based supports petitioner’s position and requires annulment of the board’s order. Petitioner also contends that the board’s order denying reconsideration is improper in that the board failed to set forth its decision in the manner required by Labor Code section 5908.5 but merely stated that its decision was based on the reasons given in the referee’s report which it adopted and incorporated. In view of the conclusions on the first point, we do not reach the second. We note, however, the recent decision of our Supreme Court in LeVesque v. Workmen's Comp. App. Bd. (1970) 1 Cal.3d 627 [83 Cal.Rptr. 208, 463 P.2d 432] holding (at p. 633 et seq.) that the appeals board may deny a petition for reconsideration by memorandum order incorporating the report of the referee, so long as the latter details the facts and reasons upon which it relies.

On August 14, 1966, petitioner, employed as a general laborer by Olsen Construction Co., suffered an industrial injury to his back. Surgical treatment was required, consisting of a laminectomy and a localized lumbosacral fusion. A 22 percent disability award was made. Petitioner returned to work in August 1967.

On March 8, 1968, when lifting the tongue of a compressor trailer in order to hook it to a pickup truck he felt a sudden pain in his low back with radiation into the right hip. An hour or so later he reported the injury to his foreman and left work to see the physician, Dr. Burns, to whom he was referred by the employer. He was given a new back brace to replace the one he had been wearing. Intensive physical therapy was prescribed—to commence after a one-week rest. He visited Dr. Bums