Opinion
Page __
__ Cal.App.2d __272 P.2d 895SMITHv.INDUSTRIAL ACC. COMMISSION et al.Civ. No. 16185.California Court of Appeals, First District, Second DivisionJuly 15, 1954Rehearing Denied Aug. 13, 1954.
Hearing Granted Sept. 8, 1954.
[272 P.2d 896] Julius M. Keller, San Francisco, for petitioner.
Everett A. Corten and T. Groezinger, San Francisco, for respondent Industrial Acc. Commission.
Edmund G. Brown, Atty. Gen., of the State of California, Gerald A. Carreras, Deputy Atty. Gen., for respondent Subsequent Injuries Fund.
KAUFMAN, Justice.
Petitioner seeks a writ of review and the annulment of respondent Industrial Accident Commission's order denying his claim for additional compensation from the Subsequent Injuries Fund of the State of California. Respondent Commission based its order on a finding that employee's pre-existing permanent disability amounted to 100%, and that he was therefore disqualified from benefits under the Subsequent Injuries Fund.
Labor Code, § 4750 provides that persons with previous permanent disability or physical impairment who suffer industrial injury, shall receive compensation from their employer only for the later injury when considered by itself and not in conjunction with or relation to the previous disability or impairment. The purpose of this section was to encourage the employment of the handicapped without placing additional risk on the employers. Subsequent Injuries Fund v. Industrial Accident Comm., 39 Cal.2d 83, 244 P.2d 889. Labor Code, § 4751, provided that an employee permanently partially disabled who receives a subsequent compensable injury 'resulting in additional permanent partial disability so that the degree of disability caused by the combination of both disabilities is greater than that which would have resulted from the subsequent injury alone, and the combined effect of the last injury and the previous disability or impairment is a permanent disability equal to 70 percent or more of total, he shall be paid in addition to the compensation due under this code for the permanent partial disability caused by the last injury, compensation for the remainder of the combined permanent disability existing after the last injury as provided in this article.'
Petitioner George Smith filed an application for Adjustment of Claim with respondent on September 26, 1952, alleging that on August 14, 1952 in his employment with the Mutual Stevedoring Company he suffered an injury resulting in the amputation of the little finger of his right hand. On November 3, 1952, petitioner filed a petition with respondent requesting a joinder of the Subsequent Injuries Fund as a party defendant, alleging that his prior disabilities and physical impairment together with the present disability would exceed 70%. The Commission ordered said Fund joined as a defendant.
On January 19, 1953, a permanent disability rating of 1 1/4% for the 'loss of the [272 P.2d 897] distal phalanx of major little finger' (Ex. A) and a recommended permanent disability rating of 100% for all existing permanent disability including that from the last injury, was filed and served.
On January 26, 1953, the Subsequent Injuries Fund filed its objections and further hearing was held on April 6, 1953. Petitioner testified that he had never been able to work as a longshoreman since the injury to his shoulder on June 9, 1949. For that injury he had received a permanent disability rating of 38 1/2% on June 6, 1951. He returned to work in July 1951 working as a sweeper at an hourly rate of $1.85, whereas he had received $2.15 per hour as a longshoreman. He testified that prior to the injury to his left shoulder in 1949 his right hand began bothering him. While employed as a sweeper he frequently could not work because both arms bothered him. Prior to the injury to the finger he could write, but now only with the greatest difficulty. The amputation of the finger also causes him great difficulty in performing the duties of sweeper, interfering with his ability to hold a broom. He has not had sufficient grip since February 28, 1953 to perform the duties of sweeper.
A medical report of December 8, 1952 by Dr. D. D. Charmak states that petitioner can now do only sedentary work. The report mentions that the arthritis from which he suffers is osteo or rheumatoid, and that the condition may become wrose in time. Dr. Philip Westdahl in a report of March 26, 1953, reported that at the time of the injury to the finger on August 14, 1952, petitioner was totally disabled as a longshoreman and that the pain from the combined left arm injury and his neurotrophic arthopathy only allowed him to work as a sweeper about half time. The injury to the finger added a small amount to the existing weakness of his grip. Subsequent to and independent of the injury of August 14, 1952, there has been a progression of the neuropathic disease consisting of 'hyposthesia of his right index finger and an ataxia.' The doctor also reported that he had a fair range of motion in both shoulders and could make good fists.
On May 15, 1953, the trial referee issued his Findings that the employee was suffering permanent disability equivalent to 100% before the accident of August 14, 1952, and ordered that he take nothing from the Subsequent Injuries Fund.
On June 26, 1953, petitioner's Petition for Reconsideration was granted, and a hearing was held at which petitioner testified.
On December 14, 1953, a recommended permanent disability rating of 100% was filed and served, the percentage being based on all disability factors prior to the injury of August 14, 1952, and showing that while prevented from working as longshoreman by these injuries he had been earning approximately $2000 per year as a sweeper on the waterfront. A recommended rating of 5 1/4% for the little finger injury was filed and served. On February 1, 1954, the Commission awarded petitioner the 5 1/4% permanent disability, but denied benefits from the Subsequent Injuries Fund.
It is the position of the respondent Commission that under Sec. 4751 of the Labor Code, an employee who though employed and earning, is, according to the Commission's rating schedules, suffering prior physical disabilities ratable at 100%, is not eligible if injured, to receive anything from the Subsequent Injuries Fund. It is also apparently the position of the Commission that such a person if 99% disabled, and therefore under the rating schedules not totally but partially disabled, who received subsequent injury bringing the total to 100%, may receive from the Subsequent Injuries Fund compensation in the amount of 100% less the percentage of the last injury.
This is a case of first impression. The Commission contends that the language in Sec. 4751, 'an employee who is permanently partially disabled' must mean an employee who is less than 100% disabled as determined by the Commission rating schedules, and is not to be determined by the person's continued ability to work regardless of handicaps.
Petitioner contends that under Sec. 4751, the Commission should have determined [272 P.2d 898] the combined effect of the last injury and all prior injuries. The rating schedule (Ex. H), no matter what the percentage of injuries to be combined, gives the highest rating possible as 100%. Thus an injury of 95% plus another of 30% gives a total of 100% and an injury of 95 lus another of 70%, still gives a rating of 100%. If a third injury were added to either of these cases, the rating would still be 100%. The Commission asked the rating bureau for separate determination of the prior disabilities and the latter 100% was given as the rating for prior and 5 1/4 % for the latter. Petitioner contends that 100% should have been given for the prior combined with the latter, which would total 100% even if the prior alone would total 100%. The 5 1/4 % rating for loss of a finger should then be subtracted from 100%, leaving a remainder in accordance with the statute of 94 3/4 % for which he should be compensated from the Subsequent Injuries Fund. We agree with this contention.
Petitioner contends that the determination that he had a 100% prior disability, is in any event contrary to the undisputed evidence since he was working and earning approximately $2000 per year when the second injury occurred. With this contention we likewise agree. Section 4660 requires that in determining percentage of permanent liability, account shall be taken of (1) the nature of the injury, (2) occupation and (3) age of the employee at the time of injury, (4) and his diminished ability to compete in an open labor market. Obviously no consideration was given to the fact of occupation at the time of the second injury, in holding that he was 100% permanently disabled while engaging in that occupation. The fact that we are here concerned with the ability to do some work at the time when the second injury was incurred, distinguishes this case from cases such as Postal Telegraph-Cable Co. v. Industrial Accident Comm., 213 Cal. 544, 3 P.2d 6; Dept. of Motor Vehicles of California v. Industrial Accident Comm., 14 Cal.2d 189, 93 P.2d 131 and Frankfort General Ins. Co. v. Pillsbury, 173 Cal. 56, 159 P. 150, which have held that the ability to do the exact work for which he has been employed is not the sole test of disability, as the Commission must determine prospectively the degree of permanent disability. Here we are concerned not with theprospective, but with the facts at the time of the second injury. Petitioner contends for the construction of 'partial' in Sec. 4751 as meaning ability to do some work. This construction is both fair and reasonable. A totally blind man is under Sec. 4662 conclusively presumed totally disabled. Many such persons are skilled workers, but under the Commission's interpretation they could never be eligible for compensation from the Subsequent Injuries Fund.
The Commission contends that the legislative history of Sec. 4751 illustrates that it was intended to apply only to those suffering from injuries rated at less than 100%, since when first enacted in 1945, it read partially disabled 'by reason of the loss of, or loss of use of, a hand, an arm, a foot, a leg, or an eye.' In 1949 it was amended so as to omit the quoted phrase. It is argued that the purpose of amendment was to allow inclusion of all partial disabilities, and not limit it to those enumerated in the 1945 enactment.
Respondent contends that no further disability to engage in the limited occupation of sweeper was caused by the finger amputation, but was caused by the progression of his preexisting disease, and in part to the scarcity of sweeping jobs. However, as noted by petitioner, the referee reported petitioner's testimony that the amputation interfered with his ability to hold a broom, and that he could not now pick up objects unless they were large. Respondent's contention is therefore unsupported by the evidence.
In petitioner's reply, it is pointed out that the Commission's interpretation discriminates between the more handicapped and the less handicapped worker. As noted earlier a 99% handicapped person (that is 99% by the rating schedule) is eligible for the Fund under the Commission's interpretation, but a 100andicapped person is not. The phrase 'permanently partially disabled' is apparently used in no other section of the Labor Code.
[272 P.2d 899] It is our view that the statute in question expressly directs the Commission first to determine the combined disability, then determine the percent of subsequent injury, and subtract the latter from the former to determine the remainder. This being so petitioner is entitled to the benefits set forth in Sec. 4751 of the Labor Code.
Ordered that decision of the Industrial Accident Commission be annulled and cause remanded for further proceedings in ancordance with this opinion.
NOURSE, P. J., and DOOLING, J., concur.