Dill v. Workmen's Compensation Appeals Board

Opinion

KERRIGAN, Acting P. J. Petitioner [applicant] seeks relief to set aside a Workmen’s Compensation Appeals Board decision after reconsideration wherein the board annulled an award of the referee increasing the applicant’s permanent disability from 65 percent to 100 percent.

In August 1961 the applicant, Arthur L. Dill, born June 19, 1907, suffered an injury to his head and neck, resulting in a serious neurosis, while employed as a delivery man by the Santa Monica Auto Parks, a copartnership, whose compensation carrier is the respondent Pacific Employers Insurance Company, a corporation.

In April 1965 he received a 65 percent permanent disability award. The board found that there was no basis for apportionment so the entire benefit was to be paid by Pacific Employers.

In August 1966 the applicant filed a petition to reopen, claiming he was 100 percent disabled as a result of the neurosis condition.

After several hearings, the referee issued findings and an award in October 1967 determining that the applicant was entitled to a 100 percent disability rating. The board granted the insurer’s petition for reconsideration,1 and directed that an independent medical examiner be appointed to examine the applicant. On August 18, 1970, the board reduced the 100 percent rating to 65 percent and, on September 23, 1970, the board denied reconsideration of its order of August 18, 1970.

The legal and medical history in this case is voluminous. Stated concisely, the referee based his findings and recommended award of 100 percent disability on the medical report and testimony of an independent medical examiner, Dr. Lunsky, to the effect that the applicant was totally disabled solely as a result of the August 1961 industrial accident without any aggravation of a pre-existing condition. His diagnosis was that the applicant’s disability resulted from post-traumatic neurosis with marked depressive factors. He recommended monthly psychiatric care.

[490]Following the granting of the insurer’s petition for reconsideration, a second I.M.E., Dr. Schwartz, was appointed in accordance' with the board’s directive. He prepared a report containing his diagnosis, conclusions and recommendations relative to the applicant’s condition and was also cross-examined before the referee. His diagnosis was that the applicant suffered from “. . . a personality disorder, passive dependent type, severe, incapacitating . . . (which) is not connected with the industrial accident.” The doctor recommended that the applicant “. . . be referred to the Social Security Administration for economic aid as a chronically disabled person.” Dr. Schwartz indicated that the physical trauma sustained in the auto accident of August 9, 1961, had intensified owing to the progression of a pre-existing emotional disturbance. In its order on reconsideration, dated August 18, 1970, the board found “. . . that any increased disability that applicant may have is the result of the natural progression of his condition and is not related to the within injury of August 9, 1961.”