Pacific Employers Insurance Co. v. Industrial Accident Commission

340 P.2d 622, 52 Cal. 2d 417, 1959 Cal. LEXIS 218
CourtCalifornia Supreme Court
DecidedJune 26, 1959
DocketL. A. 25397
StatusPublished
Cited by8 cases

This text of 340 P.2d 622 (Pacific Employers Insurance Co. v. Industrial Accident Commission) is published on Counsel Stack Legal Research, covering California Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pacific Employers Insurance Co. v. Industrial Accident Commission, 340 P.2d 622, 52 Cal. 2d 417, 1959 Cal. LEXIS 218 (Cal. 1959).

Opinions

PETERS, J.

By this proceeding petitioner insurance carrier seeks an annulment of an award of maximum temporary partial disability benefits to respondent Tom L. Stroer.

[419]*419The facts are not substantially in dispute. On July 29,1957, Stroer, employed as a carpenter, sustained an admitted industrial injury to his back. The employer’s insurance carrier, the petitioner, voluntarily furnished medical care, and paid compensation, until February 17, 1958. No challenge is made as to such payments and cost of such care.

On February 17, 1958, the temporary disability payments were terminated on the recommendation of the insurance carrier’s doctor that Stroer was no longer totally disabled and should return to work. Stroer was unable to find appropriate work until July 7, 1958. The commission awarded Stroer maximum temporary partial disability payments for the period February 17, 1958, through July 6, 1958. The insurance carrier challenges that award.

Stroer testified before the commission that during the period in question he was unable to do “rough” carpentering, his regular job, but could have worked as a “finish” carpenter, which was work of a lighter nature; that on February 18,1958, he registered at his union hiring hall for work as a finish carpenter; that he reported to the hall almost daily; that he would have accepted finish carpenter work had it been available ; that no such work was offered to him because none was available. Stroer also produced the report of a doctor who had examined him on April 7, 1958. That report pointed out that, because of the industrial injury which had necessitated an operation, Stroer’s back was still weak; that he recommended that Stroer wear a back support and should refrain from lifting any weight over 25 pounds, and that he should also avoid any work that required the employee to change his position frequently, or to crouch or stoop. Walking, according to the report, should be avoided.

The commission found that the industrial injury “caused temporary partial disability beginning February 17, 1958, to and including July 6, 1958, during which time work of a type which the applicant could perform was not available to him, entitling him to $40.00 per week during said time, based on maximum earnings.”

In denying a petition for reconsideration a commission panel stated in its report and order that there was substantial evidence that until July 7, 1958, it was inadvisable for Stroer to engage in any of the activities that his doctor had recommended that he avoid, and that, for that reason there was no point in granting reconsideration “to either find that appli[420]*420cant, as a temporarily partially disabled person, was an odd lot on the labor market or to find that for all practical purposes he was totally disabled during the period in question. In our opinion, the applicant was substantially disabled during this period, . . . and that he was without any significant earning capacity because of his disability during said time. ’ ’

The insurance carrier does not complain of the finding that during the period in question the employee was temporarily partially disabled. Its major contention is that the commission, under section 4657 of the Labor Code, was required to make specific findings as to the “probable earnings” of the employee or as to “the proportionate loss of physical ability or earning power caused by the injury. ” It is contended that such express findings were not made, and that, for this reason, the award must be annulled.

Section 4657 provides: “In case of temporary partial disability the weekly loss in wages shall consist of the difference between the average weekly earnings of the injured employee and the weekly amount which the injured employee will probably be able to earn during the disability, to be determined in view of the nature and extent of the injury. In computing such probable earnings, due regard shall be given to the ability of the injured employee to compete in an open labor market. If evidence of exact loss of earnings is lacking, such weekly loss in wages may be computed from the proportionate loss of physical ability or earning power caused by the injury.”

It is clear that this section does not require specific findings in all cases involving temporary partial disability. The section simply contains general instructions to the commission as to how “wage loss” shall be computed. Where the evidence, as here, reasonably supports the conclusion that the partial temporary disability accounts for a total wage loss, the finding as to the wages lost is the only ultimate fact that needs to be found. Specific findings relating to each factor set forth in the code section are not then required.

There can be no doubt that section 4657 makes it quite clear that in cases of temporary partial disability the employee is expected to be willing to earn such wages as he is able considering his injury, and that if some other ascertainable cause other than the injury substantially contributes to his inability to earn wages, such separate cause must be separately evaluated, and only the proportion chargeable to the industrial injury allowed as compensation. In such a [421]*421case specific findings are required. But where, as here, it appears that no other separate cause contributed to the employee’s inability to earn wages during the period he was temporarily partially disabled, the wage loss is obviously 100 per cent, and that is the only ultimate fact that need be found. There can be no question but that, in such a case, keeping in mind the fact that the employee is entitled, of course, to full compensation, the award must be the same as would have been payable for total temporary disability. This is so because, in such a case, the entire wage loss is caused by the industrial injury. This was the holding in Meyers v. Industrial Acc. Com., 39 Cal.App.2d 665, 667 [103 P.2d 1025]. (See also Transport Indem. Co. v. Industrial Acc. Com., 157 Cal.App.2d 542 [321 P.2d 21].) The panel’s report, in denying reconsideration, referred to this last cited case, and stated that “for all practical purposes he was totally disabled during the period in question . . . the applicant . . . was without any significant earning capacity because of his disability during said time. ’ ’

The insurance carrier contends, however, that the case of California Comp. Ins. Co. v. Industrial Acc. Com., 128 Cal.App.2d 797 [276 P.2d 148, 277 P.2d 442], held that specific findings on the criteria mentioned in section 4657 are required in all cases of temporary partial disability awards. In that ease the court was primarily concerned with the legal effect to be given to the fact that a partially disabled employee had received unemployment compensation disability benefits for the identical period of disability for which he had received compensation.1 The commission had allowed the employee full compensation for this period. The award was annulled. After disposing of the main point involved, the court went on to discuss the form and sufficiency of the findings required by the section. The court stated (p.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Hunt Building Corp. v. Bernick
93 Cal. Rptr. 2d 883 (California Court of Appeal, 2000)
General Foundry Service v. Workers' Compensation Appeals Board
721 P.2d 124 (California Supreme Court, 1986)
Huston v. Workers' Compensation Appeals Board
95 Cal. App. 3d 856 (California Court of Appeal, 1979)
Kruger v. Wells Fargo Bank
521 P.2d 441 (California Supreme Court, 1974)
LeVesque v. Workmen's Compensation Appeals Board
463 P.2d 432 (California Supreme Court, 1970)
Hardware Mutual Casualty Co. v. Workmen's Compensation Appeals Board
253 Cal. App. 2d 62 (California Court of Appeal, 1967)
Pacific Employers Insurance Co. v. Industrial Accident Commission
340 P.2d 622 (California Supreme Court, 1959)

Cite This Page — Counsel Stack

Bluebook (online)
340 P.2d 622, 52 Cal. 2d 417, 1959 Cal. LEXIS 218, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pacific-employers-insurance-co-v-industrial-accident-commission-cal-1959.