47 Cal. App. 2d 487 | Cal. Ct. App. | 1941
The petitioner, as insurance carrier for John Trolían, seeks to have annulled an order made by the Industrial Accident Commission amending its original findings and award in favor of Prank Miller, who sustained injuries on May 14, 1940, while employed as laborer by Trollan.
The injuries arose out of and in the course of Miller’s employment, and in July, 1940, he filed an application with the commission for the recovery of compensation. The hearing took place before the referee the following month, and on October 23, 1940, the commission, adopting the findings of the referee, awarded disability indemnity from May 22, 1940, to July 16, 1940, at the rate of $8.55 a week, based on wages of $60 a month. On November 18, 1940, Miller petitioned to re-open the proceeding alleging that the amount of the award was based upon an erroneous computation, and that his disability continued after July 16, 1940. The petition to re-open came on for hearing on January 6, 1941,
The grounds urged for the annulment of the order relate to the matter of increased compensation; and the first point made in this behalf is that prior to the making of the order the second referee did not read a transcript of the evidence taken before the first referee. Petitioner concedes, however, that all evidence adduced before the first referee as to Miller’s earning capacity was introduced and received at the hearing before the second referee. In other words, as stated in petitioner’s points and authorities (page 16) the amended award was based upon the “same evidence” and the “same facts” as the original award. It is apparent, therefore, that petitioner was in no way prejudiced by the fact that the second referee did not read a transcript of the evidence taken before the first referee, and that to have done so would have been an idle act, which the law does not require (Civil Code, sec. 3532), because the evidence being the same, no different factual situation would have been brought before him. In this regard the state of the record is essentially different from the one presented in Bethlehem Steel Co. v. Industrial Acc. Com., 42 Cal. App. (2d) 192 [108 Pac. (2d) 698], upon which petitioner strongly relies: also the one involved in Deter v. Industrial Acc. Com., 45 Cal. App. (2d) 664 [116 Pac. (2d) 112]. Furthermore, it may be observed that during the lapse of two months the present proceeding remained open before the second referee, petitioner at no time suggested the reading of a transcript of the evidence taken at the first hearing or that the evidence there taken was any different from that produced at the second hearing.
Petitioner’s second point is that “good cause” to re-open was not shown. (Sec. 5803, Labor Code.) The law is well settled, however, that the commission has power to rescind or amend its orders, decisions and awards within the
Here the record shows that in making the original award the commission improperly used as the sole basis therefor the amount of wages actually received by Miller during the preceding year, rather than “the average weekly earning capacity of the injured employee at the time of his injury,” as required by subdivision d of section 4453 of the Labor Code. That subdivision is as follows: “Where the employment is for less than thirty hours per week, or where for any reason the foregoing methods of arriving at the average weekly earnings cannot reasonably and fairly be applied, the average weekly earnings shall be taken at ninety-five per cent of the sum which reasonably represents the average weekly earning capacity of the injured employee at the time of his injury, due consideration being given to his actual earnings from all sources and employments.” As will be noted, under the above provisions it is the average weekly earning capacity at the time of the injury which is the basis for determining average weekly earnings, which, in turn, provides the measure for computing the disability payment; and while it is doubtless the law that in determining the average weekly earning capacity at the time of the injury, due consideration is to be given to earnings in the past, such earnings are not the controlling factor in determining earning capacity. (California C. I. Exchange v. Industrial Acc. Com., 135 Cal. App. 746 [27 Pac. (2d) 782]; Aetna Life Ins. Co. v. Industrial Acc. Com., 130 Cal. App. 488 [20 Pac. (2d) 116].) In so construing the law the court in the former case went on to say (p. 750) : “It is petitioner’s [the insur
In the petition for the writ of review it is alleged that at the hearing before the first referee it was stipulated by Larry Roche on behalf of Miller that Miller’s “average earnings at the time of injury were $60.00 a month,” and that “This stipulation was entered in the records of Respondent Industrial Accident Commission.” However, those allegations are not supported by the record. It appears therefrom that throughout the first hearing, and up to the time the hearing began before the second referee, Miller was not represented by an attorney. Roche, a layman and the business agent of the union of which Miller was a member, was present with Miller at the first hearing, and the only witness who testified thereat was Miller. The entire direct examination was conducted by the referee and in response to one of the questions Miller stated that during the preceding year he earned between $650 and $700; whereupon the referee stated: “Wages stipulated $60 per month”; and the amount of the original award was computed on that basis. At the hearing before the second referee Miller was represented by an attorney, and Roche, testifying thereat as the first witness, positively denied having entered into any stipulation whatever on behalf of Miller.
The third point urged for annulment of the order is that the evidence is insufficient to sustain the award as amended. The point is not sustainable. The evidence shows that when injured Miller was receiving a daily wage of $6.50, working five days a week as work was available, and the amended award was computed on that basis. He was hired through a hiring hall operated by the union to which he belonged, and such was the prevailing wage paid to men so hired to do the kind of work he was performing when injured. At the time Trollan hired Miller he contemplated the job would last three days, and it was on the third day that Miller was injured.
The order amending the original findings and award is affirmed.
Peters, P. J., and Ward, J., concurred.
A petition for a rehearing was denied November 24, 1941, and petitioner’s application for a hearing by the Supreme Court was denied December 22, 1941.