Draper v. Workers' Compensation Appeals Board

Opinion

WOODS, P. J. Petitioner, Jerry Draper, seeks review and annulment of the Workers’ Compensation Appeals Board’s decision after reconsideration finding that petitioner did not sustain new and further permanent disability subsequent to a stipulated award.1

Petitioner and applicant, Jerry Draper, sustained an admitted industrial injury to his heart due to his employment with respondent, Department of Corrections, over the period December 9, 1963, to July 10, 1975.

The report of Dr. Travis Winsor dated November 4, 1975, stated that subsequent to applicant’s two heart attacks of June 27, 1974, and July 10, 1975, the applicant “has become permanently disabled from working.” On December 15, 1975, an informal disability rating issued giving applicant a 100 percent permanent disability rating based on Dr. Winsor’s report. On January 27, 1976, Dr. Winsor stated: “It is possible that this patient will naturally regain some strength and then possibly perform some sedentary activity. He would fall into category 8 [disability resulting in limitation to sedentary work].’’

At the hearing on March 24, 1976, the parties entered into stipulated facts, including that the applicant’s condition became permanent and stationary on September 23, 1975, and “[t]he injury caused permanent disability of 90 percent, ...”

[505]The applicant filed a petition to reopen the matter on July 20, 1979, on the ground that he had sustained new and further disability since the issuance of the original award. The issue of reopening the case was submitted based on applicant’s testimony of June 8, 1982, and medical reports of Kaiser Hospital, Dr. Julien H. Isaacs, and Dr. Travis Winsor.

Dr. Travis Winsor reported on February 15, 1980, that the applicant had increased pain in his chest since 1975, more shortness of breath on exercise, and numbness of the feet and legs below the knee. Dr. Winsor concluded that the applicant “has become completely disabled for any type of job

Dr. Julien Isaacs stated in his reports of February 20, 1980 and April 15, 1980, that the applicant was precluded from gainful employment due to his cardiac condition but did not comment on the applicant’s condition in 1976.

The applicant testified at trial that he believed his condition had worsened since 1976 because he experiences symptoms of shortness of breath, dizzy spells, chest pains, and numbness in his legs more often than he did in 1976. He underwent a coronary by-pass on March 11, 1977, because his angina was constant at that time, and he required nitroglycerine every half hour.