Opinion
Rehearing Denied June 5, 1964.
Smith & Wilson and Bernard S. Shapiro, Beverly Hills, for petitioners.
Everett A. Corten, San Francisco, and Edward A. Sarkisian, Los Angeles, for respondent Commission.
Clopton & Penny and Robert R. Wills, Los Angeles, for respondent Pacific Indemnity Co.
Edwin Silver, Wilmington, for respondent Jesse L. Allison.
KINGSLEY, Justice.
Respondent Allison (hereinafter 'applicant') was an automobile mechanic. In the course and scope of his employment, he suffered a series of four injuries to his back. The first was suffered while he was in the employ of respondent Cormier Chevrolet Co. (Cormier), the last three while he was employed by petitioner Fred Gledhill Chevrolet (Gledhill). Respondent Pacific Indemnity Company (Pacific) was the insurance carrier at the time of the first two injuries; petitioner Universal Underwriters Insurance Co. (Universal) was the insurance carrier at the time of the last two injuries. As far as the present proceedings are concerned, no point is made of the fact that the first injury occurred while applicant was employed by an employer other than the one involved in the last three injuries. We treat the case, as have the parties, as though there was a single employer insured by two successive carriers. Inasmuch as no question of insurance coverage is involved, the present litigation is, in reality, between the two insurance carriers, and we hereafter refer to the parties as though the carriers and applicant were the only litigants.
After the second injury, applicant underwent a spinal fusion operation, intended to alleviate, if not entirely to remove, the pain resulting from those injuries. He returned to work, although he was still suffering some pain, wearing a surgical corset or back brace, and unable, by reason of pain, to do all the lifting and turning that would normally have been involved in his occupation of automobile mechanic. He continued to work after the third injury, although somewhat additionally restricted in movement for a few weeks. The fourth injury caused him so much pain, and therefore caused him so severely to restrict his activities, that he was discharged. Medical examination after the final injury disclosed that the fusion operation following the second injury had been only partially successful, resulting in an incomplete fusion of two of the four joints involved.
Applicant sought compensation as to all four injuries. The applications were consolidated and, after hearings and testimony, an award for temporary disability and medical care was issued against Universal Section 4663 of the Labor Code provides:
Although the first injury occurred in 1953 and the applications were filed in 1963, no question of the statute of limitations was raised, nor is any involved. (See California Workmen's Compensation Practice, §§ 5.5-5.9.)
'In case of aggravation of any disease existing prior to a compensable injury, compensation shall be allowed only for the proportion of the disability due to the aggravation of such prior disease which is reasonably attributed to the injury.'
and it has been held that:
'Whether a disability results in whole or in part from 'the normal progress of a preexisting disease' [citation] or represents a fully compensable lighting up or aggravation of a preexisting condition is a question for the Commission to determine, and its award will not be annulled if there is substantial evidence to support it. [Citations]' (Argonaut Ins. Co. v. Industrial Acc. Com. (1962) 57 Cal.2d 589, 593, 21 Cal.Rptr. 545, 547, 371 P.2d 281, 283.)
However, in the instant case, we think that the evidence before the commission did not support its finding. Accepting, as we must, the testimony most favorable to the commission's ruling, that of the independent medical examiner, the record shows only that, had there been neither the third nor the fourth injuries, applicant would not now be in need of compensation or further surgery. But the same witness testified that, because the operation designed to cure the effects of the first two injuries had not been successful, a condition existed which, as applicant subjected himself to further strains, would eventually wear down his tolerance to pain and discomfort, bringing about ultimate disability.
The activities in which applicant was engaged when the third and fourth injuries took place were the normal activities of his trade. It is not claimed that he subjected himself to any abnormal, unusual or unforeseeable strain; nor is it claimed that either or both of these injuries would have brought about disability had not the first two injuries preceded them and remained without successful treatment. We think the present case is comparable to the case of an injury produced by successive tort feasors. The first tort feasor is liable for the ultimate harm, so long as the act which brought that result about was reasonably foreseeable, whether or not the second actor was also tortious. But the second actor, 'taking his victim as he finds him,' also is liable for the ultimate result, whether or not the condition of his victim was caused by another's tort. But, unlike common law actions in tort, workmen's compensation procedures permit a principle of contribution, so that the impact of the ultimate harm does not fall in its entirety on a defendant selected by the whim of the plaintiff. To thus apportion the award carries out the principle of section 4663 above quoted, and satisfies the social objective of not inhibiting employers from hiring workmen whose previous medical history discloses some potential weakness.
It was suggested in argument before us that, unless the present award (limited to temporary disability and reserving the question of permanent disability) against a single carrier be sustained, the applicant may be delayed or defeated in securing prompt payment and prompt medical care. But this does not follow. Although joint and several liability usually is imposed in cases of occupational diseases, it is not necessarily so limited. Fireman's Fund Indem. Co. v. Ind. Acc. Com. (1952) 39 Cal.2d 831, 250 P.2d 148, involved a claim for disability flowing from a cerebral vascular accident (stroke), brought on by severe strains and tensions in carrying out the duties of the employment. The Supreme Court held that this was not an 'occupational disease' but rather an injury resulting from the cumulative effect of each day's strain and tension. The court sustained a joint and several award against two insurance carriers, each of which had insured the employer for part of the total period of strain, but directed the commission to proceed to apportion the ultimate impact of the
'The commission found petitioner jointly and severally liable with the other insurance carrier. This finding is correct so far as the employee is concerned, since he should not be required to fix the precise portion of the disability attributable to each period of exposure. However, as between the two insurance carriers of the single employer who employed the injured employee during the entire period of exposure, we are of the opinion that a proper apportionment of the award, based on the various factors leading to the disability, should be made in a separate proceeding in a manner similar to that prescribed for apportioning an award as between successive carriers or employers in cases involving occupational diseases.' (Fireman's Fund Indem. Co. v. Ind. Acc. Com., supra, 39 Cal.2d 831, 835, 250 P.2d 148, 151.)
The award is annulled and the matter is remanded to the commission with directions to enter an award imposing on Universal and on Pacific joint and several liability for temporary disability payments and for the other items involved, and thereafter, according to such procedures as it may deem proper, to apportion the ultimate impact of that award between the two carriers, as well as the allocation of responsibility for permanent injuries.
BURKE, P.J., and JEFFERSON, J., concur.