Bartlett Hayward Co. v. Industrial Accident Commission

This is a proceeding to review and annul an order of the Industrial Accident Commission. On October 2-, 1922, John George Slate, a boilermaker’s helper, thirty-seven years of age, suffered an injury arising out of and in the course of his employment with the petitioner, Bartlett Hayward Company, which caused the loss of his right eye. On June 1, 1923, he filed an application for compensation under the provisions of the Workmen’s Compensation Act. (Stats. 1917, p. 831.) The jurisdictional facts were stipulated and the only issue was the disability rating. At the hearing before the Commission it appeared that the applicant had previously, in 1914, lost the sight of his left eye, and after the accident in 192-2 the applicant was sightless. On July 12, 1923, the Commission found that “said injury caused permanent disability consisting of loss of sight of right eye, with cosmetic defect due to coloboma of iris, upper half of iris being tom loose; also cosmetic defect of upper lid, margin of upper lid being sigmoid-shaped. The percentage of said permanent disability is 25, entitling him to $20.83 a week for 100 weeks, amounting to $2,083.00," and made its award accordingly. No petition for a rehearing was filed. Nothing thereafter was done by the applicant with reference to the award until after the decision of this court in the Liptak case, which was decided on December 16, 1926. (Liptak v. Industrial Acc. Com., 200 Cal. 39 [ 251 Pac. 635 ].) In that case the petitioner had previously been deprived of the sight of one eye. He then lost the sight of his remaining eye in an industrial accident and sought compensation therefor. The Commission made an award, basing the same on a partial disability rating of twenty-six and one-fourth per cent. He contended before the Commission that he was entitled to a rating of permanent total disability on the theory that the loss.of his remaining eye was a total and permanent loss of vision. He sought a rehearing, which was denied. On his petition for a writ of review this court decided that upon a proper construction of subdivisions (9) and (10) of subsection 2' of section 9 of the act (Stats. 1917, p. 839, as amended), the petitioner was entitled to a permanent total disability rating, annulled the award, and directed the Commission to proceed in accordance with such determination.

If the Commission had the power to reopen the case and amend its award under the foregoing facts, such power was derived from section 20 (d) of the act of 1917, which provides: “(d) The Commission shall have continuing jurisdiction over all its orders, decisions and awards made and entered under the provisions of sections six to thirty-one, inclusive, of this act and may at any time, upon notice, and after opportunity to be heard is given to the parties in interest, rescind, alter or amend any such order, decision or award made by it upon good cause appearing therefor, such power including the right to review, grant or regrant, diminish, increase or terminate, within the limits prescribed by this act, any compensation awarded, upon the grounds that the disability of the person in whose favor such award was made has either recurred, increased, diminished or terminated; provided, that no award of compensation shall be rescinded, altered or amended after two hundred forty-five weeks' from the date of the injury. Any order, decision or award rescinding, altering or amending a prior order,

The respondents take the position that the power given by the foregoing provisions of the act is a broad power which enables the Commission, during the continuing jurisdiction so vested in it, to rescind, alter or amend any order, decision or award on good cause being shown therefor; that the phrase “such power including the right to review, grant or regrant, diminish, increase or terminate . . . any compensation awarded upon the grounds that the disability of the person in whose favor such award was made has either recurred, increased, diminished or terminated,” does not have the effect of limiting the power of the Commission exclusively to that specifically defined, but on the contrary operates as an extension definitely of the power of the Commission to that specifically mentioned. On the other hand, petitioners contend that the portion of the section last quoted is such a limiting phrase and has been so interpreted by this court in the case of Georgia Casualty Co. v. Industrial Acc. Com., 177 Cal. 289 [ 170 Pac. 625 ], and in cases referring to that case with approval. The Georgia Casualty Company ease, decided in January, 1918, announced the construction and meaning of section 25 (d) of the Workmen’s Compensation Act of 1913. (Stats. 1913, p. 293.) Section 25 (d) of the 1913 act provided: “ (d) The Commission shall have continuing jurisdiction over all its orders, decisions and awards made and entered under the provisions of sections twelve to thirty-five, inclusive, of this act and may at any time, upon notice, and after opportunity to be heard is given to the parties in interest, rescind, alter or amend any such order, decision or award made by it upon good cause appearing therefor; provided, that no award of compensation shall be rescinded, altered or amended after two hundred and forty-five weeks from the date of the accident. ...” Section 82 of the act of 1913 (Stats. 1913, p. 317), in subdivision (a) thereof, authorized any party aggrieved to apply to the Commission for a rehearing on five separate grounds and none others, and subdivision (b) of said section provided as follows: “Nothing contained in this section shall, however, be construed to limit the right of the Commission, at any time within two hundred forty-five weeks from the date of its award, and from time to time,

At the special election held October 10, 1911, the original constitutional provision (section 21 of article XX) was adopted, in which it was provided that “the legislature may by appropriate legislation create and enforce a liability on the part of all employers to compensate their employees for any injury incurred by the said employees in the course of their employment irrespective of the fault of either party. ...” This step was a distinct innovation in this state respecting liability and remedies as between employer and employee. It enabled the legislature to deprive the trial courts of the state of jurisdiction over such disputes and to deny to the employee the right to a jury trial. (Dominguez v. Pendola, 46 Cal. App. 220 [ 188 Pac. 1025 ].) It also took from the workman many other common-law remedies. As compensation for such deprivations, it enabled the legislature to afford him compensation regardless of his own negligence. While the new laws on this subject have administered a severe wrenching to many preconceived notions of legal wrongs and remedies, a casual observation of the tendency of such legislation and of the construction and interpretation thereof by the courts has disclosed a gradual breaking away from the technical rules of practice and procedure in the administration of such laws. Section 86 (a) of the act of 1913 (Stats. 1913, p. 319) definitely enjoined a liberal construction of the act upon the courts in the following language: “Whenever this act, or any part or section thereof, is interpreted by a court, it shall be liberally construed by such court.” This language was in general terms, and applicable to either party to a proceeding. Section 69 (a) of the act of 1917 (Stats. 1917, p. 877) went further and provided: “Whenever this act, or any part or section thereof, is interpreted by a court, it shall be liberally construed by such court with the purpose of extending

“The legislature . . . may fix and control the method and manner of trial of any such dispute, the rules of evidence and the manner of review of decisions rendered by the tribunal or tribunals designated by it.”

By the foregoing constitutional amendment the legislation of 1917 was given the stamp of approval as the social public policy of the state in its remedial and humanitarian purposes. So when the language of section 20 (d) of the act of 1917 is approached in the light of the foregoing considerations, the conclusion seems inevitable that it was intended thereby to enlarge and extend the continuing jurisdiction of the Commission beyond that which had obtained under the act of 1913. Indeed, the wording of the 1917 enactment, without any collateral aids of interpretation, would seem to admit of no other reasonable construction than that by so combining sections 25 (d) and 82 (b) of the 1913 act into section 20 (d) of the Statute of 1917, it was intended by the use of the phrase “including the right” to enlarge and extend the continuing jurisdiction of the Commission beyond the power theretofore possessed by it merely to “review, grant or regrant, diminish, increase or terminate” any compensation awarded upon the ground that the disability had “recurred, increased, diminished or terminated” and to

The interpretation of section 20 (d) of the act of 1917 was under consideration by the district court of appeal in the case of Kennedy v. Industrial Acc. Com., 50 Cal. App. 184 [ 195 Pac. 267 ], In that case it was contended by the petitioner that the enactment of section 20 (d) in 1917 endowed the Commission with no broader powers than were conferred upon it by sections 25 (d) and 82 (b) of the act of 1913 as construed by this court in the Georgia Casualty Company case. Commenting on this contention, it was said by the court, speaking through Mr. Presiding Justice Finlayson: “The vice of counsel’s argument lies' in the assumption that the ‘continuing jurisdiction’ conferred upon the Commission by the act of 1917 is no greater or other than that which had been conferred upon it by the act of 1913. Under the act of 1913 ‘continuing jurisdiction’ was given to the Commission in general terms by subdivision d of section 25. . . . No such narrow construction can be put upon the language of subdivision d of section 20 of the present act whereby ‘continuing jurisdiction’ is conferred upon the Commission. The sections of the act of 1913 that related to the Commission’s continuing jurisdiction—section 2'5, subdivision d, and section 82, subdivision b—could be harmonized only by construing the general terms of section 25 as limited by the more restrictive language of section 82. But the broad grant of continuing jurisdiction as conferred by the general terms of subdivision d of section 20 of the present act is not to be thus limited by the more particular reference in that section to the Commission’s right to ‘review, grant, or regrant, diminish, increase or terminate’ any award upon the ground ‘that the’ disability of the person in whose favor such award was made has either recurred, increased, diminished or terminated.’ True, subdivision d of section 20 of the present act is, to a large extent, a re-embodiment, mutatis mutandis, of subdivision d of section 25 and subdivision b of section 82 of the act of 1913, the provisions of these two sections of the act of 1913 being embodied with but few, but important, changes in subdivision d of section 20 of the act of 1917. But though subdivision d of section 20 of the act of 1917 is largely a re-embodiment of subdivision d of sec

“For these reasons we conclude that the particular power conferred by that clause of subdivision d of section 20 which begins with the words ‘such power, including the right to review’ is but a part of, and not a limitation upon, the larger and more general power granted by the clause which confers upon the Commission ‘continuing jurisdiction’ or power ‘to rescind, alter or amend any . . . order, decision or award made by it, good cause appearing therefor.' ”

True, in denying a petition for hearing in this court any intimation of an opinion as to the correctness of the construction placed upon the language of section 20 (d) of the act of 1917 as to the continuing jurisdiction of the Commission was reserved. The decision was fully supported on other grounds. But on further consideration we are satisfied that the construction placed upon the enactment of 1917 by the district court of appeal is in harmony with the spirit and intent of our workmen’s compensation laws as contemplated by the constitution of the state and the attitude of the legislature. Indeed, such construction reflects the obvious meaning of the language of the statute. To hold otherwise would be to amend the act by judicial interpretation.

It is our conclusion, therefore, that the continuing jurisdiction of the Commission as provided by section 20 (d) of the act of 1917 is not limited to the consideration of changes in the physical condition of the workman, but is extended to the right to rescind, alter, or amend the orders, decisions, or awards upon good cause appearing therefor. What constitutes “good cause” depends largely upon the circumstances of each case. The term is relative. It may be assumed that the determination of the Commission as to what constitutes “good cause,” while entitled to great weight, would not be conclusive. Certainly it may be said, so far as the facts in the present case are concerned, that the mistake or inadvertence of the Commission in giving the injured workman, Slate, a rating of twenty-five per cent permanent disability, when as matter of law on the undisputed facts he was entitled to a rating of one hundred per cent permanent disability, would constitute “good cause”

It is earnestly insisted by the petitioners that to extend the continuing jurisdiction of the Commission to include the power to “rescind, alter or amend” any “order, decision or award made by it upon good cause appearing therefor,” except when a change in the physical condition of the employee is shown, is to do violence to the doctrine of res adjudicata, which it is claimed the legislature plainly intended to engraft upon the Workmen’s Compensation Act by the provisions thereof relating to rehearings before the Commission. The contention is predicated on the terms of sections 64 and 65 of the act. Section 64 in subsection (a) (Stats. 1917, p. 873) provides that any party or person aggrieved by any final order, decision, award, rule, or regulation of the Commission may apply to the Commission for a rehearing thereon. Subdivision (b) provides that “no cause of action arising out of any such order, decision or award shall accrue in any court to any person until and unless said person shall have made application for such rehearing and such application shall have been granted or denied. ’ ’ Subdivision (c) provides that “such application shall set forth specifically and in full detail the grounds upon which the applicant considers said final order, decision, award, rule or regulation is unjust or unlawful and every issue to be considered by the Commission. . . . The applicant for such hearing shall be deemed to have finally waived all objections, irregularities and illegalities concerning the matter upon which said rehearing is sought other than those set forth in the application for such hearing.” Subdivisions (d) and (e) (Stats. 1917, p. 874), relate largely to procedural matters on the rehearing. Subdivision (f) provides that “If after such rehearing and a consideration of all the facts, including those arising since the making of the order, decision or award involved, the Commission shall be of the opinion that the original order, decision or award, or any part thereof, is in any respect unjust or unwarranted, or should be changed, the Commission may abrogate, change or modify the same.” Parenthetically it may here be observed that if the argument of the petitioners with reference

Reverting to the further terms of the act governing rehearings, it is provided in subdivision (a) of section 65 that “at any time within twenty days after the service of any final order or decision of the Commission awarding or denying compensation or arising out of or incidental thereto, any party or parties aggrieved may apply for such rehearing upon one or more of the following grounds and upon no other grounds”: The specific allowable grounds for rehearing are next set out and are as follows:

“(1) That the Commission acted without or in excess of its powers. (2) That the order, decision or award was procured by fraud. (3) That the evidence does not justify the findings of fact. (4) That the applicant has discovered new evidence, material to him, which he could not, with reasonable diligence, have discovered and produced at the hearing. (5) That the findings of fact do not support the order, decision or award.”

It is then provided in subdivision (b) that “nothing contained in this section shall, however, be construed to limit the grant of continuing jurisdiction contained in subdivision (d) of section twenty of this act.” In view of the foregoing provisions of sections 64 and 65 it is argued by the petitioners that since the employee in the present proceeding made no application for a rehearing before the

The principles involved in the doctrine of res adsjudicata are incorporated in the Code of Civil Procedure (sec. 1908 et seq.), but those sections of the code are merely declaratory of the common-law rules. (Ferrea v. Chabot, 63 Cal. 564 , 567.) Since, by the Workmen’s Compensation Law the injured employee has been deprived of the rules of the common law as weapons of offense to obtain redress for injuries sustained by him, it would seem to be in harmony with the spirit, purpose, and intent of such laws not to permit (except where, in the furtherance of the proper administration of the law, it should be done) common-law rules to be invoked by his adversary as weapons of defense to defeat his claim. (See Brooks v. A. A. Davis & Co., 124 Okl. 140 [ 254 Pac. 68 , 70].) The doctrine of res adjudicata rests in estoppel. The act in question imposes an estoppel against the employee as to any recourse to the courts, unless he applies for a rehearing before the Commission. But when we have in mind the question of the power of the Commission, the purpose and intent of the law is to vest in the Commission complete control of controversies between employer and employee subject to the rules and regulations provided by the legislative branch. Resort to and interference by the courts may take place only in accordance with such rules and regulations. It is not to be assumed that the Commission will abuse its powers. If it should do so the legislature in the act itself has provided

There is nothing novel in vesting in a Commission, such as our Industrial Accident Commission, the power to correct its mistakes both as to the law and the facts after it has once acted and in the furtherance of justice as between the parties. The United States government and all but four of the states have enacted workmen’s compensation laws. By act of Congress. compensation for injuries to civil employees of the United States has been provided for. The Commission appointed to administer the law is given power to modify prior awards by ending, increasing, or diminishing the compensation, or, if compensation has been once refused, to award compensation as the equities of each case may require. (39 U. S. Stats. at Large, 742, 749, secs. 37, 38; 5 U. S. C. A., secs. 787, 788.) In the states of Pennsylvania, Texas, Colorado, Kansas, and the Territory of Hawaii the Commission may review its prior awards because of changed conditions, and may rescind, alter, or amend the same upon equitable grounds, such as mistake, fraud, coercion, undue influence, or gross inadequacy or excessiveness in the prior award. In the states of New York, Massachusetts, Maryland, Ohio, Oklahoma, Utah, and West Virginia the Commission or administrative body may modify its prior awards within the compensation period as in its opinion may be justified. In Delaware, Georgia, Idaho, Indiana, Kentucky, Missouri, Nebraska, South Dakota, Vermont, and Virginia the continuing jurisdiction of the Commission would seem to be limited by the wording of the statute to the power to modify a prior award on account only of a change of conditions. That is, in these ten states there is no specific provision of the statute authorizing the Commission to rescind, alter, or amend prior awards on equitable grounds. The court in at least one of those states, however, has construed this grant of power to include the right on the part of the Commission to set aside a prior award on such grounds. (Vodopich v. Trojan Min. Co., 43 S. D. 540 [ 180 N. W. 965 ].) In Minnesota the Commission is authorized to modify its prior awards for cause. North Dakota has substantially the same provision. In Wisconsin the single ground of “mistake” is specified. In

Generally it may be said that a survey of the Workmen’s Compensation Laws in the several jurisdictions discloses that the idea of continuing jurisdiction has been put into almost universal practice. The vesting of power in the Commission to change its awards on account of the changed conditions of the injured employee is a common statutory provision, and placing within the discretion of the Commission the power to modify prior awards on equitable grounds is not uncommon.

The petitioners point out that in many states where continuing jurisdiction is vested in the Commission to correct its mistakes or modify its awards on equitable grounds, there is no provision for a rehearing. This may be conceded, but it does not therefore follow that such continuing jurisdiction may not properly be granted the Commission when a rehearing is also provided for. In Colorado both are'provided for and are made effective. (Employers’ Mut. Ins. Corp. v. Industrial Commission of Colorado, 78 Colo. 501 [ 242 Pac. 988 ]; State Compensation Ins. Fund. v. Industrial Commission of Colorado, 80 Colo. 130 [ 249 Pac. 653 ].)

It is earnestly insisted by the petitioners that this court and the district courts of appeal, since the adoption of the 1917 act have adhered to the Georgia Casualty Company case and have foreclosed the respondents herein as to their present contentions. The cases of McBride v. Industrial Acc. Com., 182 Cal. 407 [ 187 Pac. 1050 ], National Engineering Corp. v. Industrial Acc. Com., 193 Cal. 422 [ 225 Pac. 2 ], Hogeberg v. Industrial Acc. Com., 201 Cal. 169 [ 256 Pac. 413 ], Northern Redwood Co. v. Industrial Acc. Com., 44 Cal. App. 61 [ 185 Pac. 991 ], Grand Union Hotel v. Industrial Acc. Com., 67 Cal. App. 123 [ 226 Pac. 76 ], and Benton v. Industrial Acc. Com., 74 Cal. App. 411 [ 240 Pac. 1021 ], are particularly referred to and relied upon.

In the foregoing cases varying situations of fact were presented. In the McBride case the Commission has reserved its award for medical, surgical, and hospital treatment pending the procuring of vouchers and necessary information for a supplemental award. In denying a petition for rehearing the application for writ of review, this court very correctly stated that the Georgia Casualty ease,

It is thus seen that of the seven cases which it is contended by petitioners finally establish the meaning to be given to the language of section 30 (d) of the 1917 act, one, the Georgia Casualty Company case, interpreted the provisions of the 1913 act; and the only two in point of the other six cases, the Northern Redwood Lumber Company case and the Benton case, followed the interpretation of the

The petitioners urge, as an additional reason why the award involved herein should be annulled, that the Liptak case was wrongly decided, and they suggest that should it be deemed advisable now so to declare, it would then become unnecessary at this time to determine the broader question of the scope of the continuing jurisdiction of the Commission under the 1917 statute. Whatever may be the arguments for and against the correctness in point of law or the wisdom of the decision in the Liptak case, it is enough to say that the decision in that case is only collateral to the paramount question of jurisdiction in the case at bar. If the economic result of the law as declared in the Liptak case has been to place one-eyed men in a disfavored class from the employer’s standpoint, the remedy in their favor should be sought from the legislature which has plenary power in the premises.

Finally it is contended by petitioners that the effect of judicial approval of the extension of the continuing jurisdiction of the Commission to questions of equitable and kindred cognizance would result in consequences to insurance carriers never heretofore contemplated. It is stated that the petitioner insurance carrier has set aside no reserve

The net result of the recognition of the continuing jurisdiction of the Commission over controversies pending before it for the full period provided by the legislature will make for the final adjustment of such controversies by the tribunal established by the people of the state for that particular purpose and in a manner in harmony with the spirit and purpose of the workmen’s compensation law. The desirability of repose in controversies before the Commission by lapse of time, so earnestly urged by the petitioners, is fully appreciated. But it is for the legislature and not for the courts to say how long the determination of a controversy involving an industrial accident shall remain in the breast of the Commission before the same shall be barred by lapse of time. Assuming the existence of the power in the Commission, the period of 245 weeks is not now questioned as a

The award is affirmed.

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

Rehearing denied.

All the Justices concurred.