The opinion
MOSK, J.
I dissent.
To merely recite the remarkable conclusion of the majority is to refute it: an employee who suffers a back disability and a heart disability is less disabled than he would have been if he suffered only the heart disability. Such tortured logic totally eludes me.
This petitioner is a police officer who has served his city since 1949. In May 1970, he sustained a back injury in the course of his employment and as a result was found to be 34'/2 percent permanently disabled. He continued to work pursuant to a regimen which restricted heavy lifting and repetitive bending.
In August 1971, petitioner sustained a heart injury and arteriosclerosis which rendered him 75 percent disabled. He was directed to avoid emotional stress and to perform only light or semi-sedentary work, and was precluded from all strenuous activities. An employee who is more than 70 percent permanently disabled is entitled to permanent benefits paid pursuant to a formula prescribed by Labor Code section 4659.
It would seem that a police officer who became a heart victim 75 percent permanently disabled would receive those statutorily bestowed benefits without further question. However, the Workers’ Compensation Appeals Board ordered the percentage of the first disability to be subtracted from the second. Thus the 75 percent disability suddenly melted down to 401A percent,- and the lifetime benefits provided by section 4659 dissolved completely. The law of diminishing returns became the law of vanishing returns.
In Hegglin v. Workmen’s Comp. App. Bd. (1971) 4 Cal.3d 162, 171 [ 93 Cal.Rptr. 15 , 480 P.2d 967 ], we found the “injury to petitioner’s back which prevented him from lifting more than 25 pounds was a factor of disability entirely separate and distinct from the factor of impaired liver function caused by the hepatitis. . . . The injury to the spine and the destruction of liver cells and liver functions obviously involve impairment or abnormalities of separate portions of the anatomy. Furthermore, it is clear that the two factors impose separate limitations on petitioner’s capacity to work.”
*718 Except for the fact that Hegglin involved one, not two, industrial injuries, its analysis of the overlap problem on remarkably similar facts is most persuasive. Indeed, we can by simple substitution relate the circumstances of this case in precisely the terms employed in Hegglin : “the injury to petitioner’s back which prevented him from heavy lifting and repetitive bending was a factor of disability entirely separate and distinct from the factor of impaired heart function and arteriosclerosis— The injury to the spine and the damage to the heart and the heart functions obviously involve impairment or abnormalities of separate portions of the anatomy. Furthermore, it is clear that the two factors impose separate limitations on petitioner’s capacity to work.”
The general rule is properly extracted by the majority from State Compensation Ins. Fund v. Industrial Acc. Com. (Hutchinson) (1963) 59 Cal.2d 45 [ 27 Cal.Rptr. 702 , 377 P.2d 902 ], in this manner {ante, p. 714): “apportionment turns on whether the second injury decreases the employee’s earning capacity or his ability to compete in the open labor market in the same manner as the first.” (Italics added.) But Hutchinson does not compel the result reached by the majority.
It should be obvious to any layman that a back injury causing only 3416 percent disability does not affect an employee’s earning capacity and ability to compete in the open labor market in the same manner as a 75 percént disabling heart attack and arteriosclerosis. The back injury was to the musculoskeletal system, while the heart injury was to the vascular system. For the former the restriction was to avoid heavy lifting, for the latter the-avoidance of emotional stress and strenuous activities. After the former injury the petitioner was able to continue his employment as a police officer, after the latter he could no longer do so. Under all these circumstances it is impossible to find “overlapping” disabilities in this case.
I would annul the award.
Petitioner’s application for a rehearing was denied June 2, 1976. Mosk, J., was of the opinion that the application should be granted.