Gay v. WORKERS'COMP. APPEALS BD.

96 Cal. App. 3d 555, 158 Cal. Rptr. 137
CourtCalifornia Court of Appeal
DecidedAugust 30, 1979
Docket54385
StatusPublished

This text of 96 Cal. App. 3d 555 (Gay v. WORKERS'COMP. APPEALS BD.) is published on Counsel Stack Legal Research, covering California Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gay v. WORKERS'COMP. APPEALS BD., 96 Cal. App. 3d 555, 158 Cal. Rptr. 137 (Cal. Ct. App. 1979).

Opinion

96 Cal.App.3d 555 (1979)
158 Cal. Rptr. 137

NORMAN G. GAY, Petitioner,
v.
WORKERS' COMPENSATION APPEALS BOARD, GUARANTEE COLLECTION COMPANY et al., Respondents.

Docket No. 54385.

Court of Appeals of California, Second District, Division Three.

August 30, 1979.

*557 COUNSEL

Kessler & Downen and Leonard Kessler for Petitioner.

*558 Evans, Dalbey & Cumming, Ray B. Cumming, Mansell, Manchester, Dean & Long and Stafford R. Leland for Respondents.

OPINION

COBEY, Acting P.J.

Petitioner Norman G. Gay contends that all of his psychiatric disability is related to his cumulative trauma injury (see Lab. Code, § 3208.1) and that the Workers' Compensation Appeals Board (Board) erred in apportioning 50 percent of that permanent disability as nonindustrial. For the reasons stated below, we annul the Board's finding of apportionment and remand the matter to the Board.

I. SUMMARY OF APPEALS BOARD PROCEEDINGS

Gay, while employed as a bill collector by respondent Guarantee Collection Company for the period November 2, 1970, through August 31, 1973, and by respondent Petroleum Collection Company for the period September 1, 1973, to September 1, 1975, sustained injury arising out of and occurring in the course of this employment consisting of psychiatric disability.

The initial treating psychiatrist, Robert P. Sedgwick, M.D., indicated in his report of January 9, 1976, that Gay was "psychologically disturbed." Dr. Sedgwick stated he had "no knowledge of the actual conditions at [Gay's] work and, therefore, [had] no opinion as to whether work factors were important in his present nervous condition and disability." Dr. Sedgwick pointed out, however, that Gay had "similar symptoms" prior to employment at Guarantee and that Gay had said that he felt subject to a series of persecutions since 1967.

Vera Wayman, M.D., Gay's medical/legal and treating psychiatrist following Dr. Sedgwick, reported a diagnosis of "schizophrenia depressed." In her report of March 23, 1977, Dr. Wayman indicated that Gay's permanent and stationary psychiatric disability was "pronounced," a 100 percent rating. Regarding apportionment, while noting Gay's family and other personal difficulties, Dr. Wayman opined all of his permanent disability was industrial. Dr. Wayman stated in her report of December 10, 1976: "I have no evidence that Mr. Gay was emotionally disabled for industrial purposes prior to his harassment and pressurized problems in trauma that evolved from his work.... I have no evidence *559 that he would be in his present emotional state had he not been under this severe strain at his job."

The parties agreed to use Donald H. Naftulin, M.D., as an agreed medical examiner in psychiatry. In his report of February 16, 1977, Dr. Naftulin opined that Gay was indeed suffering from psychiatric disability which was related to his employment. Dr. Naftulin, however, did conclude that apportionment was in order. In his report the doctor stated: "[Gay] denies any [psychiatric] symptoms having occurred previously but, on close history, it becomes apparent that he overreacted to work stress in 1962 or 1963 following a suicide of another agent's client, attempted to leave the collection business because of the suicide, and preoccupation with his own responsibility in the possible death of clients.... In addition, although the patient denies history of previous psychiatric symptomatology similar to [his present] symptoms cited above, both my examination and that reported by Dr. Sedgwick suggest that he had interpersonal difficulty with neighbors regarding vandalism, previous stress as a collection agent before the 5 or 6 years with his current employer, and some concern although not admitted by patient of his daughter's running away from home in 1972.[[1]]

".... .... .... .... ...

"... I do believe he is suffering from the psychiatric symptoms he elaborates. However, on the basis of my examination, the longstanding schizoid personality suggested in the MMPI results and the reports of Dr. Wayman and Dr. Sedgwick, I would infer he has had symptomatology pre-existing his current employment. I think these symptoms worsened with his current employment but were probably aggravated by the truancy of his daughter as well. However, not the time nor the intensity of feeling are remembered by the patient accurately.

"Putting this entire picture together, I would have to state that Mr. Gay suffers a psychiatric disability characterized by a schizoid personality with passive-aggressive features which antedated his current illness of longstanding duration. Whether any of the symptoms pre-existed his current employment is speculative since the patient denies it. However, I would think that in all medical probability he did have some of the psychiatric symptomatology. It is also medically probable that these symptoms have *560 been aggravated in the course of his current employment and are currently moderately severely disabling by WCAB standards.... However, I would think that 50% of his symptomatology is attributable to a preexisting personality disorder, 25% attributable to stress of previous employment and possibly the truancy of his daughter for three months, and 25% attributable to his most recent employment since 1970 and 1971...." (Italics added.)

On April 20, 1977, Dr. Naftulin was cross-examined by the parties. During the cross-examination, Dr. Naftulin reiterated his view that Gay definitely had psychiatric problems in 1970, which would be prior to the employment for the defendant employers in this case. As to whether Gay would have developed any psychiatric illness absent his employment, Dr. Naftulin stated:

"My belief is that even if he had not worked in collections, he might have developed something like this. The likelihood is there, given the basic personality structure. How probable it is versus how possible, I don't know. It's a coin toss, but I think he would have developed pressures in other areas as well, even if the work had not been there. It might not have occurred as rapidly.

"There were problems with the neighbors, problems with previous jobs, problems about his own loss of self-esteem when he worked for the May Company 13 years ago. In and of themselves, these individual things alone might not have precipitated or caused what is happening, but the cumulative effect of them, plus his basic personality structure, I think would have resulted in something like what he now has, even had he not been working as a collection agent."

As to the basis of his percentages of apportionment, Dr. Naftulin admitted that "The apportionment is based on the extent of contributing factors to the disability...."

Based upon her review of Dr. Naftulin's report and testimony, the workers' compensation judge concluded that 50 percent apportionment of the permanent disability as nonindustrial was in order. The judge apparently did not find only 25 percent was industrial as stated by Dr. Naftulin because Dr. Naftulin's apportionment of 25 percent to prior employment was impermissible under Labor Code section 5500.5. (See *561 Flesher v. Workers' Comp. Appeals Bd. (1979) 23 Cal.3d 322 [152 Cal. Rptr. 459, 590 P.2d 35].)[2]

Gay then sought reconsideration by the Board.

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Gay v. Workers' Compensation Appeals Board
96 Cal. App. 3d 555 (California Court of Appeal, 1979)

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