Hulbert v. Workmen's Compensation Appeals Board

Opinion

ELKINGTON, J. On the petition of Raymond S. Hulbert, we review a partial permanent disability award granted him by the Workmen’s Compensation Appeals Board.

[637]Hulbert was employed as a telephone equipment repairman. Around 1951 he was subjected to a laminectomy of the lower back. The operational result was “good.” About five months later he returned to his employment where he performed “his regular work without restrictions” for about 20 years. He had “no problems climbing the ladders or doing his work.” During that period he “did not lose any time from work,” nor did he “require medical care.” He did “the same work as any other man,” and “in addition, he built a three-bedroom house in his spare time.” He did, however, during the 20-year period, have “occasional mild episodes of low back pain,” but it was “not disabling.”

In 1971 Hulbert suffered an industrial injury. Following appropriate proceedings the respondent board found him to have a 30 percent partial permanent disability. Then, ostensibly applying Labor Code section 4750, the board “apportioned” out five-sixths of that disability as existing prior to the 1971 injury. A workmen’s compensation award then issued, based upon a 5 percent (or 5 Vi percent) partial permanent disability.

In the proceedings the board received in evidence reports of five medical examiners, three of whom appear to have been engaged by the self-insured employer and two by Hulbert. None of these doctors found Hulbert’s disability traceable in any way to his 1951 medical trouble. One did not think that the current disability was “a recurrence of his old disc problem.” Another reported that “in my opinion, Mr. Hulbert’s backaches unequivocally are caused by his back injury of June 8, 1971.” Yet another said, “I do not believe [the present symptoms] are associated with the previous back injury.” The fourth doctor reported no relationship between the 1951 laminectomy and the 1971 disability, while the fifth found Hulbert’s occasional back pain “not disabling, during the intervening years.” (Italics added.)

The board, however, caused a doctor from its own medical bureau to examine Hulbert. He testified that although the applicant was always able to do his work, from “time to time” he suffered intermittent back pain which, in the doctor’s opinion, would “probably be more than minimal.” This occasional pain, traceable to the 1951 incident, the witness opined, caused Hulbert a 25 percent permanent disability, even before his 1971 injury. On further questioning the doctor agreed that during Hulbert’s 20 years of continuous employment preceding his industrial injury, he had no “symptomatology which required medical treatment,” and further, that “a lot of people without injuries get backaches.” The board’s apportionment of five-sixths of Hulbert’s