Ford Motor Co. v. Industrial Accident Commission

Proceedings in certiorari to review an award of the Industrial Accident Commission in favor of William Shortall, who was employed as a mechanic by the Ford Motor Company. While so employed, and on the twenty-ninth day of July, 1921, he sustained an injury to his back. This injury arose out of and in the course of his employment, and consisted of a fracture of the spine, with a series of sprained ligaments and membranes about the spine at or near its juncture with the sacrum. In proceedings instituted before the Industrial Accident Commission for an award for compensation for the injury thus sustained said Commission found that he was permanently disabled as a result of said injury and fixed the percentage ■of his disability at eighty and three-fourths per cent. Upon this finding an award against the United States Fidelity and Guaranty Company, the insurer of the Ford Motor Company, was made in favor of William Shortall in the sum of $5,000, payable at the rate of $20.83 per week from the date of the injury, exclusive of the waiting period, for the period of 240 weeks and thereafter the additional sum of $6.55 per week during his lifetime. After sustaining this in

“1. Applicant, William Shortall, on the 16th day of September, 1924, at San Francisco, California, while in the employ of the defendant, Ford Motor Company, at which time the employer was insured against liability under the Workmen’s Compensation, Insurance and Safety Act of 1917, by the defendant, General Accident, Fire and Life Assurance Corporation, Ltd., sustained an injury arising out of and in the course of said employment, consisting of a strain of the back. . . .

“3. The employee had, prior to said injury, sustained a strain of the back while in the employ of said defendant, Ford Motor Company, on the 29th day of July, 1921, resulting in permanent disability amounting to 80%% of total disability, for which, in proceeding numbered 11176 before this Commission, an award was entered against the defendant, United States Fidelity & Guaranty Company. As a combined result of said injuries, the employee now has a permanent disability, . . . amounting to 95%% total disability, and entitling him to compensation from the defendant, General Accident, Fire and Life Assurance Corporation, Ltd., at the rate of $20.83 per week, for a period of 240 weeks, beginning with the eighth day after said injury of September 16, 1924, and thereafter at the rate of $11.30 per week, during the remainder of the employee’s life; amount accrued to January 25, 1927 (122 weeks), exclusive of the waiting period of seven days, is

$2,541.26; payments on account, $280.30; balance due as of said date $2,260.96. The foregoing benefit is based upon the maximum wage permitted by law as a basis for compensation.”

This award was against the General Accident, Fire and Life Assurance Corporation, the insurer of the Ford Motor Company at the date of the second injury. The Ford Motor Company and the United States Fidelity and Guaranty Company, the insurer at the time of the first injury, were made parties to the second proceeding, as well as the first, but were relieved of all liability under the second award. After a denial of a petition for a rehearing by the Commission, the Ford Motor Company and the General Accident, Fire and Life Assurance Corporation have by these proceedings brought the record of the Commission to this court for review. Just what standing the Ford Motor Company has in this proceeding is not apparent, as the Commission by its award relieved it of all liability thereunder. This fact is not of material importance, however, as all the questions pertinent to the issues here can be and have been raised by the General Accident, Fire and Life Assurance Corporation, who is a proper party hereto.

Petitioners assail said award upon various grounds, the principal one being that the award is contrary to the provisions of the Workmen’s Compensation Act. The proper designation of this act is “Workmen’s Compensation, Insurance and Safety Act of 1917” (Laws of 1917, p. 831).. We will refer to it herein as the Workmen’s Compensation Act. It is contended by petitioners that the Commission found that Shortall as a result of the two injuries suffered a permanent disability amounting to ninety-five and one-fourth per cent of total disability, and that as it had previously found as a result of the first injury, his permanent disability was eighty and three-fourths per cent of total disability, the Commission in effect awarded Shortall compensation based upon a one hundred and seventy-six per cent total disability. Petitioners further contend that Shortall as a result of the second injury only sustained a fourteen and one-half per cent total disability, and that the Commission should have taken this percentage of total disability as a basis and, in connection with the wages he was receiving at the time of sustaining this second injury, made an award of compensa

Section 9 (b) (2) (7): “In determining the percentage of permanent disability, account shall be taken of the nature of the physical injury or disfigurement, the occupation of the injured employee, and his age at the time of such injury, consideration being given to the diminished ability of such injured employee to compete in an open labor market.”

Section 9 (b) (2) (10): “The percentage of permanent disability caused by any injury shall be so computed as to cover the permanent disability caused by that particular injury without reference to any injury previously suffered or any permanent disability caused thereby.”

Section 11 (£) : “The fact that an employee has suffered a previous disability, or receives compensation therefor, shall not preclude him from compensation for a later injury, or his dependents from compensation for death resulting therefrom, but in determining compensation for the later injury, or death resulting therefrom Ms average annual earnings shall be fixed at such sum as will reasonably represent his annual earning capacity at the time of the later injury.”

Section 9 (b) (2) (7), it is apparent, sets forth the matters to be taken into account and considered by the Commission in determining generally the percentage of permanent disability caused by an injury without reference to whether such injury is the first or a subsequent injury. [1] Section 9 (b) (2) (10), on the other hand, contains a direction for computing the percentage of permanent disability caused by an injury after an injury previously suffered. By this provision the Commission is directed to

compute, the percentage of permanent disability caused by any particular injury without reference to any injury previously suffered by said employee or without reference to any permanent disability caused by said previous injury. It would be a direct violation of said section of the statute, as construed by this court in Liptak v. Industrial Accident Commission, 200 Cal. 39 [ 251 Pac. 635 ], for the Commission in computing the percentage of permanent disability caused by the second injury to take into consideration any former injury of said employee and to deduct the percentage of disability caused thereby from the disability found to exist in the injured employee after sustaining the second injury. The Commission, therefore, acted in accordance with the requirements of the Workmen’s Compensation Act in computing the percentage of permanent disability sustained by reason of the second injury without reference to any former injury. In making this computation the Commission fixed the percentage of permanent disability sustained by Shortall at ninety-five and one-fourth per cent of total disability. This was a matter within the exclusive jurisdiction of the Commission, and this court has no power to disturb such action provided there was any evidence before the Commission to justify such a finding. It is not claimed by the petitioner that the evidence was insufficient if the above construction is given to section 9(b) (2) (10).

[2] The Commission, however, after fixing the percentage of permanent disability sustained by the employee after receiving the second injury based the amount of compensation he was entitled to receive on account of such injury upon the wages he was receiving at the time of his second injury. That is, the Commission took the amount of wages he was receiving at the time he received the second injury as a basis under section 12' of the act in determining his average annual earnings at that time. The evidence shows that both before and after the first injury the employee was receiving $6.96 per day for six days per week, or $41.76 per week. The Commission on each occasion took the highest average weekly earnings, that is, $31.05, permitted by section 12, in computing the average annual earnings of the employee. The evidence shows without conflict that the Ford Motor Company, the employer, in keeping with a rule adopted by it, had employed the injured

The award is annulled and the case is remanded for further proceedings before the Commission not inconsistent with this opinion.

Shenk, J., Richards, J., Seawell, J., Langdon, J., Preston,. J., and Waste, C. J., concurred.

Rehearing denied.