Baias v. Workers' Compensation Appeals Board

Opinion

GILBERT, J. We review a decision of respondent Workers’ Compensation Appeals Board (Board) that applicant could not be awarded permanent disability indemnity because he was 100 percent disabled prior to sustaining the industrial injury.

We hold the Board erred in not awarding permanent disability indemnity.

In May 1984 applicant and his wife immigrated to the United States from Romania under the sponsorship of respondent John Roman. Prior to the immigration, applicant had suffered two or more strokes.

After arriving in the United States, applicant and his wife lived with Roman. According to the wife, she and applicant performed household chores for Roman six days a week and sold items for him at a swap meet on Sundays; and Roman paid each of them $20 a week. Elena Lunga, an acquaintance of applicant and Roman, testified she saw applicant sell items [792]for Roman at the swap meet and observed applicant working in Roman’s upholstery shop and garden.

On March 10, 1985, applicant and his wife were sitting at separate tables at a swap meet. While applicant was selling pistachio nuts, he became thirsty. He was given a bottle of what he believed was lemonade but actually contained swimming pool chlorine. Upon drinking it, he sustained esophageal burns and another stroke, which rendered him comatose for 13 days. He is presently confined to a wheelchair, is incontinent, has difficulty speaking, is mentally disabled, and requires constant care. He was unable to testify in the workers’ compensation proceedings.

The independent medical examiner opined applicant was 100 percent permanently disabled prior to the March 10, 1985, injury, and although prior to the injury he could walk, care for himself, and perform limited tasks, he could not have found employment in the open labor market.

Roman claimed applicant had never been Roman’s employee and all the money he gave applicant and the wife was a gift so they could buy medicine.

The workers’ compensation judge (WCJ), crediting the testimony of Lunga and applicant’s wife and the opinion of the independent medical examiner, found applicant sustained injury on March 10, 1985, arising out of and occurring in the course of his employment with Roman, but “[ajpplicant was 100% disabled prior to the injury . . ., so that no permanent disability is found herein.”