*1 Apr. 22, In F. Bank. No. 1955.] [S. INDUSTRIAL ACCIDENT SMITH, Petitioner, v. GEORGE Respondents. et al., COMMISSION Julius M. Keller for Petitioner. *2 Attorney Brown, General,
Edmund G. Gerald A. Carrera, Deputy Attorney General, Everett Corten and A. T. Groe- zinger Respondents. for SCHAUER, applicant George Smith, an for workmen’s J.
compensation, seeks review and annulment of an order of the Industrial Accident Commission that he take nothing by against of reason a claim Fund. compensation Whether is Smith entitled to from such fund depends upon meaning of section 4751 of the Labor Code, hereinafter summarized. We have concluded that the section liberally interpreted can and should be in of appli favor give him cant to the relief he which seeks. litigation (Subsequent Injuries
In earlier Fund v. Indus- trial 889]) general we plan objectives considered the of the sub- sequent injuries legislation and held encompassed it is purview of “complete system within the of workmen’s compensation” by which is authorized the state Constitution (art. XX, 21) and which statutes, various particularly, in § connection, this IV (§§ division Labor 3201-6002, Code subsequent injuries which include the plan), are intended (Lab. “to make effective” Code, 3201). provisions “The § of Division IV . . . liberally shall by construed the courts purpose extending with the protection their benefits for the persons injured in employment.” the course of (Lab. their Code, §3202.) subsequent injuries
The plan provides as follows: An employer of a workman permanent physical who has a impair- compensable ment and who injury thereafter sustains a re- sulting permanent disability, is not for compensation liable ensuing only combined disabilities, portion but for that permanent by which injury. is caused the last (Lab. Code, 4750.) “If employee permanently who is § partially subsequent compensable receives a resulting permanent partial in additional disability so that degree caused the combination both greater disabilities is than that which would have resulted subsequent injury alone, and the combined effect previous disability impairment the last and the equal permanent is a more of paid shall be due' total, he addition permanent under this caused code compensation for injury, remainder of the the last ' permanent disability existing combined after ‘Subsequent article entitled provided [art. (Lab. added.) Injuries Payments’].” Code, §4751; italics special The additional last mentioned is paid appropriated purpose” (Lab. from “funds taxpayers 4754); whole, rather Code, thus the than the § already handicapped pay employer worker, of the additional compensation to worker if he an industrial disability coming within which causes increased the limits defined. injuries applies only plan
In terms partial. Indus- previous to an whose The “ position ‘perma- trial Commission takes the Accident disabled,’ Code nently partially as used Labor Section having disability meaning interpreted only can be applicant urges ratable at less than 100%.” *3 sustaining subsequent injury, prior a employe who, that to an rating (when disability of 100 nevertheless has a receiving for which he is performing services he is fact injury compensa- eligible compensation) be view commission is of the words, In other tion. precluded, applying as it insofar language of the statute concerned, from provisions is Fund has been rated partially an who treating as disabled compensation of workmen’s totally purpose as disabled petitioner urges hand, the payments while, on the other pur- disability for workmen’s rating a of total synonymous the fact of actual total with poses neither legislation, objectives of the of the disability nor, in view Injuries Subsequent Fund preclude payments does it totally although already employe who, an to actually been has compensation allowances, for workmen’s disabling injury in further employed and suffered gainfully subsequent work. gave injury rise to the industrial sustained Smith injury of this As a result August 14, 1952. proceeding on This dis- right hand. finger of his part little he lost permanent alone, a received ability, considered 5%, per cent. rating of employed 6, Smith,
On June long- was then as a shoreman, had sustained to left arm and shoulder which received a rating of 38per cent. Before he sustained the 1949 swelling right hand. con- Smith suffered from This dition, arthritis, grown worse and now result of has leg. being affects both arms hands and the left After and injured return work 6, 1949, on unable to June Smith was sweeper July, until then he has worked Since demanding physically on the and docks. work is less This pay longshoreman. does not Smith did as much as that every work work day a because sweeper, sometimes he could not work was not available and sometimes because Disability physical due to his condition. The Permanent immediately Bating Bureau concluded that Smith’s prior August be ratable at to his would cent. employe contends, in effect, that the determination prior that he had a cent ratable is untenable light undisputed of the evidence that he working earning wages. This contention, in the form in which it is stated, is incorrect. It is settled law in this state employe may that an receive a of 100 entitled to payments rating although incident to such he is able to return work at wages received he before the which caused “ disability. right is not lost [T]he injured employee’s diminished return to work at wage the same a different than that theretofore earned by him. The require showing statute does not a loss earning power prerequisite payment a of compensa for permanent but, tion disability, contrary, provides on the payment for the in installments of a fixed definite sum money (Postal therefor.” Co. Tel.-Cable v. Industrial Com. (1931), Acc. 213 Cal. see also Pillsbury General Ins. v. 173 Cal. Frankfort Mercury P. 150]; Aviation Co. *4 (1921), ; Com. 186 Department Cal. 377 P. [199 508] Motor (1939), Vehicles v. Industrial Acc. 14 Com. Cal.2d conclude, nevertheless, 194 131].) We the permissible reasons explained, hereinafter that it is distinguish and desirable or between a formula rule- per disability” rating pur- established “100 for certain 368 productive insofar as work
poses, actual total compensated employment or is concerned. “permanently partially
The is phrase disabled” not appear Code does not elsewhere defined the Labor phrase However, code in section 4751. the is than compensation. connection in common use in with workmen’s (See Am.Jur., Compensation, 58 283 Workmen’s § [“Dis ability ordinarily graded on the basis the benefits are total, and as tem character Schneider, Compen 2 porary permanent”]; Workmen’s (1932), pp. 1332-1333, Law are four sation § 400 [“There designated for which classes payable. They permanent total, permanent partial, tem are partial”].) The porary temporary cases, total and California phrase meaning “permanent without discussion refer to partial disability,” have used it to (Massachusetts cent. etc. Ins. Co. v. at less than 100 P. Pillsbury Cal. 768 (1915), 170 Frankfort Pillsbury supra, 56, 57; (1916), Ins. v. 173 Cal. General supra, Mercury Co. v. Industrial Aviation 4, 6 Rosenberg (1930), 209 Cal. 377; 186 Baroni Cal. P. 1111].) employe although permanent partial dis- urges The meaning dis- ability accepted has contexts as been other Legislature must ability per cent, rated at less than “as concerned so far as section have intended that position employed to become long one is able to be statute, and contemplation of injured, he is within ” under the According employe, ‘partially disabled.’ worthy most 4751 “the interpretation commission’s of section compen- subsequent injury would be entitled cases” be awarded could not example, ; sation Labor Code employe, blind since be a “conclusively presumed” to provides that blindness is impairment has severe employe who disability, total or to schedule neck, commission’s of the functions of the since impairment lists such disabilities disability. following example suggested illustrates apparent injustice interpretation of a of section strict applicant here, An employe, 4751: such as the has cent but prior rated at who is injury causing per- gainfully employed cent; manent rated at combined effect 5]4
369 the previous of and the is a per cent; employe 100 is entitled to rated at his per disability payments employer receive cent from 5% employe nothing Subsequent Injuries and from the An Fund. per cent prior permanent who has a rated at 99 causing permanent disability sustains an industrial per cent; rated at of the last combined effect 5% previous disability permanent disability is a per cent; per at 100 he is entitled to receive dis- cent 5% ability payments employer per from cent his dis- 94% Injuries ability payments Subsequent from Fund. hand, argued On the other it could be with considerable plausibility, although imply hold, not so we do we would employe’s interpretation might that the 4751 section lead following inequable though workman, to A situation: permanent disability rating per he has a 100 cent, is able earning to wages. continue He a series injuries, permanent disability each of which results a per of 10 actually incapacitates cent but none which the occasion him. On of each such he will be entitled only permanent disability to 10 payments cent employer his but also to 90
payments from the Fund. The latter average weekly payments earnings are 65 cent of his average weekly earnings 360 weeks and (Lab. §4658). Code, may for the remainder of his life It Legislature contemplated that the doubted that the Subse- Injuries paying burden of quent Fund would have to bear the employe weekly permanent disability one not one several but throughout payments his life.1 hypothetical examples impel themselves
These do not contrary employe’s argu- conclusion accord with or to injuries They probably ment. indicate any legislative legislation drafted without actual intent thought of, presented by to, or a situation such as that as concerning phases legislation other of remedial 1As discussed eases Legislature provide workers, intention of the to a com disabled duplicating compensations, system benefits, prehensive but not unemployed injury, of either illness individuals are because clearly industrially otherwise, expressed caused whether (See pertinent. Bryant (1951), v. Industrial Acc. Com. there enactments 37 Cal.2d 32]; Aetna Ins. Co. Industrial Acc. P.2d [231 Life 530]; (1952), Com. P.2d Garcia v. Industrial (1953), 41 Cal.2d 692-693 P.2d California Comp. Cal.App.2d 797, Ins. Co. v. Com. 442].) 148, 277 P.2d 806-807 legislative further present case. The matter should have however, Legislature, Pending clarification attention. must deal court, Commission, Accident and this Industrial they legislation as arise. it exists and with cases with the juri- socially In appears the circumstances it desirable dis- dically give “permanent proper the words extend- ability” used in 4751 a liberal construction employe. If ing its benefits him qualify per cent properly be rated at 100 *6 though even compensation, for the basic form of workmen’s purposes, truth, practical earning not in power has his equally permissible to least impaired,2 it should be at been accept disability and penetrate the fiction the further remaining earning ability so the truth increased actual injury with truth purpose. up for that from the fund set compensated the commission is the order of stated For reasons above proceedings for further matter is remanded annulled and opinion. expressed the views consistent with J., Traynor, Edmonds, J., J., Gibson, J., Shenk, C. Spence, J., concurred.
CARTER, I concurin the conclusion reached J. uniformity interest majority, but of decision I inconsistency deem it advisable call attention to the in the reasoning upon majority opinion here is based and Bryant reasoning majority the cases of Indus 32], P.2d Com., trial Acc. 37 Cal.2d Aetna Ins. Life Com., 530], v. Industrial Acc. P.2d Com., 41 Cal.2d 689 and Garcia v. I dissented. In the all of cited eases last 8], in which last mandate of liberal construction of the identical cited cases the under consideration contained in Labor Code statutes here majority. Had ignored this mandate the result cited cases would have been followed employee it is in favorable to the disabled this case. been ante, cited, pp. 2See cases