Fowler v. Workmen's Compensation Appeals Board

Opinion

GARGANO, Acting P. J. Petitioner is a farm laborer who on March 29, 1968, was seriously injured in an automobile accident; he seeks review of the opinion and order of the Workmen’s Compensation Appeals Board denying reconsideration of the referee’s findings and award; the referee found that petitioner was injured in the course of his employment with respondent Bell and that his injuries caused permanent partial disability. He also found that part of petitioner’s permanent disability was attributable to a preexisting lower back disease and fixed the disability rating, after apportionment, at 30 percent. It is the finding leading to the apportionment that petitioner challenges in this proceeding; he asserts that the finding is not supported by substantial evidence.

The facts are undisputed. Petitioner injured his back in 1962 and was incapacitated for several Weeks after that injury. He was examined by Dr. J. C. Williams, an orthopedic surgeon, who later, in a letter written to the Farmer’s Insurance Company, indicated that at the time of the 1962 injury petitioner had “a lumbar radicular problem of a mild sort related to the extensive degenerative changes in his lumbar spine.” The doctor said that he re-examined petitioner in 1968, following the automobile accident, and that the back condition had not changed substantially since 1962; he opined that the “low back and radicular problem” had nothing significant to do with the automobile accident.

Petitioner testified that within á few months after the 1962 injury his back ceased to hurt him and he was able to- work as a farm laborer without pain, discomfort or medication until he was reinjured in the 1968 automobile accident. His testimony was corroborated by several witnesses.

[759]Thomas Norton, who worked with petitioner from 1962 through 1965, said he saw petitioner load boxes weighing between 50 and 75 pounds, slash vines, drive a truck and tractor and swamp grapes and plums. He did not hear petitioner complain of back pain and did not see anything indicating that his fellow-employee was having any back trouble.

Alphonso Brabo testified that he worked with petitioner from 1962 through 1967 and saw him swamping grapes and driving grape stakes, using a 16-pound hammer. The witness explained that swamping grapes involves throwing full boxes of grapes a distance of about six feet to a man on a truck and that he had seen petitioner throw as many as thirty boxes a minute without ever complaining of back pain or back trouble.