Frierson v. Workmen's Compensation Appeals Board

Opinion

TAYLOR, P. J. This is a petition for a writ of review and annulment of an order of the WCAB denying reconsideration of its previous order of award. Petitioner was a 45-year-old janitor employed by United Airlines, who sustained injury to his back on May 20, 1965, when he leaned over to pick up a towel. He received temporary disability at various times through May 4, 1969, and was afforded medical treatment, including two laminectomies, one in September 1967 and the second in November 1968. He then applied for a permanent disability award. Because of the conflicting medical reports admitted into evidence at the hearing to determine the extent of permanent disability, the referee referred petitioner to the medical bureau for an independent medical examination.

Petitioner was examined by Dr. Phillips Johnson, who reported on November 17, 1970, as follows: “Disability exists in the back as a result of the injury on 5-20-65 and is considered to be stationary and permanent for rating purposes. The factors are: 1. Restricted back motion. 2. Necessity for a reinforced lumbosacral support. 3. The necessity for daily analgesic medication. 4. The subjective complaint of almost constant low back [166]and leg pain is felt to be slight in degree, increased by strenuous activity to a degree such as to preclude the applicant from heavy work.

“Provision should be made for the maintenance and replacement of the support as necessary and a supply of the prescribed medication.”

On November 19, 1970, the referee issued the following instruction to the rating bureau: “Rate for disability to the back precluding performance of heavy work." (Italics added.) Based on this instruction, the rating specialist then submitted the recommended rating of 32 percent. After copies of the doctor’s report and the recommended rating were served on petitioner, he exercised his right to cross-examine the medical examiner and the rating specialist.1 The rating specialist testified that he considered only the rating instruction in making the rating.

Petitioner relying on Hegglin v. Workmen's Comp. App. Bd., 4 Cal.3d 162 [93 Cal.Rptr. 15, 480 P.2d 967], contends that the referee in giving the instruction to the rating bureau should have included all of the factors listed in Dr. Johnson’s report2 and that failure to do so resulted in an inadequate award. It is the board’s position that the summary instruction “Rate for disability to the back precluding performance of heavy work” encompasses all the factors listed by the doctor and that the more complete enumeration would not have altered the recommended rating.