State Employee's Retirement System v. Workmen's Compensation Appeals Board

267 Cal. App. 2d 611, 73 Cal. Rptr. 172, 33 Cal. Comp. Cases 710, 1968 Cal. App. LEXIS 1430
CourtCalifornia Court of Appeal
DecidedNovember 22, 1968
DocketCiv. 11746
StatusPublished
Cited by13 cases

This text of 267 Cal. App. 2d 611 (State Employee's Retirement System v. Workmen's Compensation Appeals Board) 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
State Employee's Retirement System v. Workmen's Compensation Appeals Board, 267 Cal. App. 2d 611, 73 Cal. Rptr. 172, 33 Cal. Comp. Cases 710, 1968 Cal. App. LEXIS 1430 (Cal. Ct. App. 1968).

Opinions

FRIEDMAN, J.

The State Employees’ Retirement Law provides a special death benefit for the widow or child of a forestry member whose death, as determined by the Workmen’s Compensation Appeals Board, is industrial. (Gov. Code, §21363.5.) A referee of the Workmen’s Compensation Appeals Board awarded the death benefit to the widow of June B. McNerney, finding that Mr. McNerney’s death was work-connected. The board denied reconsideration. This court issued a writ of review at the behest of the State Employees’ Retirement System.

In determining the question of industrial causation, the WCAB is directed to use the same procedure as in workmen’s compensation hearings. (Gov. Code, §21363.5.) A provision of the Workmen’s Compensation Law, Labor Code section 3212, applies to specified categories of public employees, including active firefighting members of the State Division of Forestry, extending its coverage to “heart trouble which develops or manifests itself ’ ’ during employment with the public agency; establishing a disputable presumption of occupational causation as to heart trouble “so developing or manifesting itself” and prohibiting attribution to a preexisting disease when these conditions exist. Relevant portions of section 3212 appear in the margin.1

[613]*613The referee found that Mr. McNerney had been an active firefighting member of the State Division of Forestry at the time of his death; that his death on February 28, 1964, was proximately caused by “heart trouble” which arose from his employment; that his duties required firefighting and he was entitled to the presumption of employment causation described in section 3212, supra. The Retirement System contends (a) that the medical evidence does not support the finding of employment causation, (b) that McNerney held a desk job and was not entitled to the statutory presumption, (c) that in any event the presumption vanished upon the introduction of contrary medical evidence.

McNerney had suffered rheumatic fever when he was about 6 years old, with recurring attacks at the ages of 13 and 21. He went to work for the State Division of Forestry in 1935 and, except for two years with another state agency, remained there until his death. Since 1947 he had been employed as a dispatcher with the duty of sending crews and equipment into areas where forest fires were in progress. He operated a radio and prepared fire plans. During the fire season, April 15 to November 15, he was on 24-hour call. During a fire he would secure men, supplies and equipment from different districts and direct them to the points of need. At times of shortage, he would be called upon to establish priorities of need. He worried over the responsibility of sending men into danger. He worked either from his office or from his home telephone. He would be called at night to dispatch if needed. Like others engaged in the firefighting program, he received a 10 percent pay differential during the fire season for being on call. He suffered an acute heart attack in 1962. It occurred while he was on the stairway leading to his office in the Division of Forestry. In February 1964 he died of congestive heart failure. He was 58 years old at the time.

Herbert S. Burden, M.D., the family physician who had treated McNerney during his lifetime, signed the death cer[614]*614tifieate, giving the cause as “Acute Cardiac Decompensation due to Rheumatic Heart disease—Mitral Insufficiency.” No autopsy was performed. In reports filed with the referee, Dr. Burden stated that McNerney had had heart trouble all his life and expressed the opinion that his employment was not a factor in his death.

James M. Reece, M.D., a specialist in internal medicine, testified at the hearing. Although he had never seen Mc-Nerney, he had examined Dr. Burden’s files, which included a medical history as well as X-rays and electrocardiograms taken after the acute attack of 1962. He said that the electrocardiograms gave no evidence of arteriosclerosis, infarction or occlusion, but were consistent with scarring of the mitral valves attributable to the rheumatic fever attacks suffered years earlier. A systolic heart murmur was noticed in 1954, which also indicated valvular deficiency. The 1962 X-rays showed enlargement of the heart. Having heard the description of McNerney’s occupational duties, he expressed the opinion that the work did not subject the decedent to any undue stresses and that the job was probably rather sedentary. He did not believe that arteriosclerosis played any part. In his opinion decedent’s work had nothing to do with his death and his occupation had nothing to do with his longstanding cardiac disease, which was attributable to multiple attacks of rheumatic fever.

Elise M. Rose, M.D., also furnished a report. She had never seen the decedent nor had she reviewed Dr. Burden’s file containing the medical history, X-rays and electrocardiograms. The data for Dr. Rose’s opinion consisted of (a) an interview with McNerney’s widow detailing the stressful character of her husband’s occupation, (b) a short statement by Burden in which he reiterated his assertion of nonbceupational causation, and (c) a preemployment physical examination in 1947 which indicated cardiac normalcy. Dr. Rose’s report expressed the view that McNerney’s stressful job contributed to the development of coronary atherosclerosis, which was the cause of death. She completely discounted rheumatic fever as a contributing factor. Both the referee and the Workmen’s Compensation Appeals Board concluded that Dr. Rose’s report created a conflict in the medical evidence, which they resolved in favor of the claimant.

First, there is the question whether McNerney was an “active firefighting member” within the coverage of section [615]*6153212. Section 3212 is a part of the Workmen's Compensation Law, whose provisions are to be liberally construed in the claimant’s favor. (Lab. Code, §3202; Lundberg v. WorkMen’s Comp. App. Bd., 69 Cal.2d 436, 439 [71 Cal.Rptr. 684, 445 P.2d 300].) The process of firefighting includes persons performing tactical and logistic functions as well as those who physically extinguish the flames. The preparation of fire plans and the dispatch of personnel and equipment are integral to the process. The statute does not confine itself to those who physically extinguish the flames; rather, it comprehends “active firefighting members . . . whose duties require firefighting.” The notion is a transient one, progressing back from the fire line to some undetermined point in the tactical-logistic activities. McNerney’s functions were such that the WCAB found him in the covered category. (Cf. Buescher v. Workmen’s Comp. App. Bd., 265 Cal.App.2d 520, 532-533 [71 Cal.Rptr. 405].) A court cannot say, as a matter of law, that this finding is without substantial support in the evidence.

Dr. Elise Rose’s report is the only medical evidence which supports the finding of employment causation. On behalf of the Retirement System, the Attorney General contends that Dr. Rose’s report does not rise to the level of substantial evidence. The contention is quite justified. At the hearing the Attorney General objected to evidentiary use of Dr. Rose’s statement. The referee overruled the objection, stating that a “higher court” might eventually consider it. Both the referee and the WCAB then took the position that Dr. Rose’s report created a conflict in the medical evidence. Actually, Dr.

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State Employee's Retirement System v. Workmen's Compensation Appeals Board
267 Cal. App. 2d 611 (California Court of Appeal, 1968)

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Bluebook (online)
267 Cal. App. 2d 611, 73 Cal. Rptr. 172, 33 Cal. Comp. Cases 710, 1968 Cal. App. LEXIS 1430, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-employees-retirement-system-v-workmens-compensation-appeals-board-calctapp-1968.