ANNA GERSON, Petitioner, v. INDUSTRIAL ACCIDENT COMMISSION et al., Respondents.
Civ. No. 24972
Second Dist., Div. Two.
Feb. 1, 1961
188 Cal. App. 2d 735
NOURSE, J. pro tem.
Everett A. Corten, Edward A. Sarkisian, Musick, Peeler & Garrett, James E. Ludlam and Norman E. Carroll for Respondents.
On December 6, 1958, petitioner, hereinafter sometimes called “applicant,” sustained an injury to her spine while in the scope and course of her employment by Harriman-Jones Clinic, hereinafter called “the clinic.” She received treatment from the medical staff of the clinic and on February 16, 1959, entered the hospital operated by the clinic but she did not, until February 26, 1959, advise her employer of the accident occurring on December 6th and made no claim that her illness and injuries were due to that accident until February 26th.
At the time of the accident petitioner‘s husband was a dues-paying contributor under a plan of hospital and medical service contracted for by his employer with Blue Cross and under which Blue Cross agreed to furnish certain hospital, medical and surgical services to the dues-paying members of the employer and their families. The contract between Blue Cross and the husband‘s employer specifically excluded from the services which Blue Cross would be obligated to furnish “any condition for which indemnities are recoverable under any Workmen‘s Compensation or Occupational Disease Law....”
At all relevant times the clinic was under contract with the Blue Cross to furnish hospital service and care to Blue Cross hospital service plan subscribers upon the terms and conditions stated in that contract. Petitioner was the holder of a certificate designating her as a member of her husband‘s family entitled to the benefits of the contract between her husband‘s
On August 3, 1959, petitioner filed her application with respondent commission for workmen‘s compensation benefits and it was not until the filing of this application that Blue Cross received notice that petitioner‘s injury was industrial in character and that she was entitled to indemnity under the workmen‘s compensation insurance act. It thereafter filed with the commission its claim of lien including the amounts paid out by it for services rendered to petitioner prior to February 26, 1959.
The respondent commission on August 12, 1960, after having granted reconsideration of a former award, entered its findings of fact and award and on the same day entered what it called its decision but which we understand to be a summary of the evidence relied on and the reasons or grounds for its award filed pursuant to
By the award petitioner was granted, in addition to disability indemnity, reimbursement for the reasonable value of self-procured medical treatment incurred by her after February 26, 1959, including medical and hospital expense paid by Blue Cross but her claim for such expense, incurred prior to February 26, was denied. The award expressly denied the claim of lien filed by Blue Cross but ordered that, of the amount awarded petitioner for self-procured medical and hospital expenses, a portion thereof equal to the amount expended by Blue Cross should be paid directly to it.
Petitioner asserts: first, that the amounts paid by the Blue Cross were paid by it under its contract so to do for which it had received a consideration and that, therefore, the services furnished by it were the proceeds of an investment, payable irrespective of her right to indemnities under the workmen‘s compensation act and that Blue Cross was not entitled to be reimbursed for the services that it had for a consideration contracted to furnish and that, consequently, the commission could not by its order reimburse it; second, that the commission was without jurisdiction to adjudicate the controversy between petitioner and Blue Cross.
There is no merit in the first point stated above. By the express terms of the contract made by Blue Cross and under which petitioner had the right to claim hospital service there was excluded from the coverage of that contract any
Because of her failure to report the accident and request from her employer indemnification in the form of medical and hospital care under the workmen‘s compensation provisions of the
Petitioner, however, was entitled to indemnity under the workmen‘s compensation provisions of the
The second point stated above is more difficult of solution. By its findings of fact the commission found that Blue Cross was not entitled to a lien and by its award denied that lien.
The commission has no power beyond that given it by
The Legislature may empower the commission to exercise jurisdiction over controversies incidental to the
We are convinced, however, that Blue Cross was entitled to a lien under the provisions of paragraph (b) of
While under its contracts Blue Cross was not obligated to furnish medical and hospital services to petitioner it did in fact furnish those services to her through the hospital and the doctors whom it employed and the fact that its employment of the hospital and the doctors occurred through mistake did not change the character of its acts.
Fireman‘s Fund Indem. Co. v. Industrial Acc. Com., supra, 170 Cal.App.2d 412, is not applicable for under the facts here where there was neither a payment of money nor the furnishing of services pursuant to a contract so to do nor a loan of money to petitioner but simply a furnishing by Blue Cross of services to petitioner and the situation is no different than if the clinic and the physicians were the lien claimants. Under the facts here Blue Cross was clearly entitled to a lien within the provisions of
We have no power, in proceedings of this kind, to make findings of fact and the commission having found Blue Cross not entitled to a lien and having by its award denied that lien, its award directing payment of a portion of the award granted applicant directly to Blue Cross was an order in excess of its jurisdiction and cannot be sustained.
Fox, P. J., concurred.
ASHBURN, J., Concurring and Dissenting.---I agree with most of the prevailing opinion but am unable to concur in an annulment of the award or in the reasoning which leads to that conclusion.
The majority opinion concedes that Blue Cross is entitled to a lien upon the compensation award, but holds that the commission‘s erroneous denial of the lien precludes it as a matter of jurisdiction from ordering payment directly to Blue Cross because of the limited phraseology of
An explanation of the commission‘s inconsistent holding is not readily apparent. Counsel for the commission offer this: “Since there would be no good reason to allow the lien of the Blue Cross and then order petitioner to pay over the money to Blue Cross, as a matter of expediency, the referee denied the lien and ordered respondent compensation insurer to pay the money direct to Blue Cross.” This is hardly satisfactory. However, I am unable to see any difference between declaring a lien upon an award and directing payment by the insurance carrier of the amount of the claimed lien directly to that claimant.
To my mind the result reached by the majority decision does not reflect sound interpretation of the pertinent code sections.
It should be noted that the mere filing of the claim of lien establishes it, subject only to determination of amount and approval of lien by the commission, and the determination and allowance of lien mentioned in
Exclusive jurisdiction is vested in the commission by sections
Bankers Indemnity Ins. Co. v. Industrial Acc. Com., 4 Cal.2d 89, 95 [47 P.2d 719]: “It is petitioner‘s contention that the commission is not invested with equitable powers, and that accordingly it has no jurisdiction over a proceeding to reform a policy of insurance on the ground of the mutual mistake of the parties, or for that matter, on any ground whatever. Petitioner takes the position that courts of equity, and they alone, have exclusive jurisdiction of such matters, and that in order to reform such policy of insurance it is necessary for the party seeking such reformation to invoke the powers of a court of equity, as no such power has been vested in the Industrial Accident Commission.
“In construing the section of the Constitution above referred to, and the legislative enactment adopted in pursuance thereof, this court has held that in determining the liability
To my mind all this leads to the conclusion that
In Southern Calif. Jockey Club v. California etc. Racing Board, 36 Cal.2d 167, 176 [223 P.2d 1], the court, dealing with the claim of errors in receipt of evidence, said: “In its memorandum opinion the trial court said: ‘Nevertheless, eliminating from consideration testimony concerning the economic interest of the existing tracks, there is still substantial evidence upon which to sustain the Board‘s determination. Even if there be some error in the record, the court should follow the general principle enunciated in
I think there was no prejudicial error in ordering payment directly to Blue Cross of the amount of its claim and out of the compensation award, especially as I believe, like the majority, that a lien should have been declared. As a matter of fact the lien and the order for payment seem to me to be essentially one and the same thing.
An alternative method of reaching a just and final disposition of this matter would be a modification of the award. The modification, if made, should be a substitution of an express allowance of the lien rather than denial. That this is appropriate appellate procedure appears from Truck Ins. Exchange v. Industrial Acc. Com., 36 Cal.2d 646, 652 [226 P.2d 583]; O. L. Shafter Co. v. Industrial Acc. Com., 175 Cal. 522, 527 [166 P. 24]; Gouanillou v. Industrial Acc. Com., 184 Cal. 418, 424-425 [193 P. 937].
I would affirm the award as made.