West v. Industrial Accident Commission

Petitioner, an insured employer, seeks to have annulled a total temporary disability award of the commission in favor of respondent and against petitioner. Respondent, a 60-year-old woman, was hired by petitioner on January 21, 1946, for $35 a week plus room and board as a practical nurse for petitioner’s bedridden husband. Six days later, on January 27, 1946, a porch swing at petitioner’s residence fell to the floor while respondent was sitting in it. Respondent claimed that her back was injured in this fall of the swing. The commission so found and issued the award before us.

Petitioner’s attack upon the award merits discussion only as to the following points: (1) the existence of the employment relationship; (2) the activity of respondent at the time of the injury found; (3) the existence of the injury and of total temporary disability resulting therefrom; (4) average earnings.

Petitioner’s contention that the findings of the commission as to injury to respondent and the total temporary disability resulting therefrom are without substantial evidentiary support requires more extended treatment. These findings rest upon respondent’s testimony, two medical reports and one X-ray report, all offered by respondent. Respondent testified in effect that she injured her back in the fall of the swing, that since that occurrence she had had a constant stinging pain around the end of her “tail bone” (coccyx), that medical treatment had been ineffective in permanently alleviating this pain, and that the severity of the pain prevented her from working. The first medical report, that of Dr. Rickabaugh, dated March 18, 1946, contains a diagnosis of sacroiliac sprain based upon respondent’s account of the fall in the swing and the tenderness to pressure she exhibited over the sacroiliac joints, the body of the sacrum and the coccyx. It is significant that this report is silent as to the indispensable factor in diagnosis of the nature and cause of injury, in such eases, namely, the medical history of respondent prior to the fall. It states no reason whatever for bas

Specifically as to injury the commission’s records introduced in evidence show that respondent’s back has been a recurrent source of compensation income to her. In 1941, she collected over $100 from a compromise settlement of her claim that she had sprained her wrist and back in a fall suffered while working as a practical nurse. At that time she stated that within the prior two years she had injured her spine at least three times. X-ray examination of her back,

Specifically as to total temporary disability respondent testified that following the accident she mhde no effort whatsoever to obtain employment but did remarry. She further admitted that she had gone on county relief upon her arrival in Los Angeles from Sacramento in the last part of November, 1945, that she remained on such relief continuously thereafter including the week of her employment by petitioner, and that she was still receiving such relief in June, 1946. According to respondent, this relief was given her on account of her inability to work. From this testimony of respondent it would seem then that the claimed injury had no effect upon her ability to work. In this connection it is to be noted that the White Memorial Clinic merely recommended shorter hours of work and that because of osteoarthritis.

In summary the record shows that respondent has been a willing seeker after compensation income and that the condition of her back in February, 1946, was both arthritic and chronic. Aside from her own testimony and Dr. Riekabaugh’s report there is nothing in the record tending to prove that respondent was injured in the fall of the swing or that this fall aggravated or exacerbated the then existing

This leaves merely respondent’s testimony to support the findings of injury and total temporary disability. Respondent’s testimony upon these points is to the effect that she has been in such constant and severe pain since the accident that she has been unable to work. While the person who claims to have been injured is ordinarily the first person who should testify as to whether he is suffering pain (Employers etc. Corp. v. Industrial Acc. Com. (1941), 42 Cal.App.2d 669 , 671 [ 109 P.2d 716 ]) it should be borne in mind that the law does not award compensation for mere pain unless it is of such a character as to raise a presumption of incapacity to earn. (Marsh v. Industrial Acc. Com. (1933), 217 Cal. 338 , 344 [ 18 P.2d 933 ] ; Associated Indem. Corp. v. Industrial Acc. Com. (1945), 71 Cal.App.2d 820 , 824 [ 163 P.2d 771 ].) Similarly, although the employee may testify as to his inability to work (Western Pac. R. R. Co. v. Industrial Acc. Com. (1936), 17 Cal.App.2d 119 , 120 [ 61 P.2d 459 ]) a hidden physical impairment of the back such as respondent claimed is a matter properly cognizable only by those trained and expert in such matter. (Pacific Employers Ins. Co. v. Industrial Acc. Com. (1941), 47 Cal.App.2d 494 , 500-501 [ 118 P.2d 334 ] ; Simpson Co. v. Industrial Acc. Com. (1925), 74 Cal.App. 239 , 243 [ 240 P. 58 ].) While it is the province of the commission to determine the credit and the weight to be given the evidence, the commission may not disregard facts established by the evidence. (Bussey v. Industrial Acc. Com. (1938), 26 Cal.App.2d 211 , 212 [ 79 P.2d 169 ] ; Moquin v. Industrial Acc. Com. (1939), 33 Cal.App.2d 511 , 516 [ 92 P.2d 413 ].) Findings of fact of the commission like those of a trial court may be set aside and an award based thereon annulled if the findings are contrary to the evidence, read as a whole, or without meritorious support in the evidence. (Nielsen v. Industrial Acc.

The fundamental principle that there shall be but one trier of the facts assumes that the trier of the facts will use every reasonable means at his disposal to ascertain the truth concerning disputed matters. The inadequacy and incompleteness of the record in this case manifestly shows that the commission here did not properly discharge this basic duty of discovery of the facts. The commission is a court (Bankers Indem. Ins. Co. v. Industrial Acc. Com. (1935), 4 Cal.2d 89 , 97 [ 47 P.2d 719 ]) deliberately clothed by the Legislature with administrative facilities to permit it to develop the facts in reference to matters not generally known to laymen. It was not intended that the litigants before it be impaled upon the results of their lack of familiarity with the often occult problems of medical science frequently arising in compensation cases. As a consequence the commission may not leave undeveloped matters which its acquired, specialized knowledge should identify as requiring further evidence. In this case the resolution of the issues of injury and disability was not patent. Medical evidence thereon was therefore required. Under these circumstances the commission had the responsibility of seeing to it that such evidence was reasonably complete, whether by use of its own medical experts or otherwise.

As society’s representative it is the duty of the commission to do equal justice between employer and employee (Mc Manus v. Lindberg (1936), 47 Ariz. 214 [ 54 P.2d 997 , 999]). As the same court said in a more recent case: “However, perfection and absolute accuracy are not expected; all that can reasonably be demanded is an honest and conscientious effort to do the right thing. It is too bad if some who are entitled to compensation are denied it, but it must be remembered that all claimants for compensa

We do not hold that the testimony of a claimant of disabling pain may not properly be accorded greater weight by the commission than is accorded medical testimony that no cause for the pain could be found upon expert examination. Such evidence may be satisfactory and sufficient to sustain a finding of disability. We do hold that the testimony of respondent that she suffered such pain as a result of her alleged injury as to incapacitate her for work was wholly unsubstantial and without probative value. In view of respondent’s admitted activities following the alleged injury, her belated complaint of injury and visit to a physician, her ability to carry on her household duties after her remarriage, and her proven disposition to use a chronic lower back condition, which, as she claimed, habitually caused disabling pain, as a convenient source of income through claims of injury, her mere assertion that the fall in the swing caused disabling pain, opposed as it was by reliable expert evidence, and supported by none of any substance, was not sufficient to establish liability of petitioner as her employer. The realities of the situation were too obvious to be overlooked. The power of the commission to make determinations of fact is indeed broad, but it may not be exercised in disregard of fundamental concepts as to what constitutes legal proof and of the duty to fairly weigh evidence. A reviewing court should not consider itself bound by a finding of the commission which has no reasonable basis in the evidence. We consider this such a case.

Were we to rule otherwise as to the sufficiency of the evidence, the award would nevertheless have to be annulled because, as will be developed shortly, the commission erred as a matter of law and accordingly exceeded its jurisdiction in its application of section 4453 of the Labor Code in computing the amount of the award. Upon annulment of the award, unless otherwise ordered, the case goes back to the commission for retrial of all of the, issues of fact initially

In regard to average earnings petitioner contends that the commission’s award is unreasonable in amount and therefore in excess of its powers. Petitioner asserts that in computing respondent’s average earnings on a full-time basis at the rate of pay at the time of the accident, the commission ignored respondent’s true earning capacity at that time as shown by such evidence as there was as to her actual earnings during the year immediately preceding the accident.

In California as elsewhere a compensation award consists of a money payment and medical care. (Western Metal Supply Co. v. Pillsbury (1916), 172 Cal. 407 , 419 [ 156 P. 491 , Ann.Cas. 1917E 390] ; Dodd, Adm. of Workmen’s Compensation (1936), p. 41.) The purpose of the award is not to make the employee whole for the loss which he has suffered but to prevent him and his dependents from becoming public charges during the period of his disability. (Union Iron Wks. v. Industrial Acc. Com. (1922), 190 Cal. 33 , 39-40 [ 210 P. 410 ].) In short the award transfers a portion of the loss suffered by the disabled employee from him and his dependents to the consuming public. (Western Indem. Co. v. Pillsbury (1915), 170 Cal. 686 , 693 [ 151 P. 398 ].) Complete protection is not afforded the employee from disability because this would constitute an invitation to malinger or to be careless on the job as he would then lose nothing in assuming a disabled status. (1 Schneider, Workmen’s Compensation Law (Per. ed. 1941) p. 6.)

The money payment is supposed to represent a specified portion of the disabled employee’s loss in earning capacity as such capacity existed at the time disability began. (Dodd, op. cit., supra, p. 687.) “Average Earnings” is our statutory term for the basis upon which actual past earnings are computed in order to arrive at such earning capacity. The computation of this earning capacity is, of course, not independent of the fundamental purpose of the award just set out. As a consequence there is provided a maximum and minimum for all average earnings. Exact ascertainment of earning capacity is further departed from by providing certain specific computation formulae for the purpose of taking care of the ordinary run of cases in speedy and uniform fashion.

Section 4453 of the Labor Code is the provision governing the computation of average earnings on a weekly basis. It has four subdivisions. One of these, (b) covers employment by two or more employers. Since it is inapplicable to the case before us, it will not be considered further. The other three pertain to various types of employment by one employer. Subdivision (a) applies to full-time work, while subdivision (d) applies to part-time work. Subdivision (c) applies to two situations—earnings at an irregular rate or specified to be by the week, month, or other period. Subdivision (d) also applies where (a), (b) or (e) “can not reasonably and fairly be applied. ’ ’ It defines average weekly earnings as 95 per cent of the sum “which reasonably represents the average weekly earning capacity of the injured employee at the time of his injury, due consideration being given to his actual earnings from all sources and employments.” Thus earning capacity at the time of injury is the touchstone of average earnings in California. Consequently the various statutory methods of computation of average weekly earnings set forth in subdivisions (a), (b) and (c) possess validity only to the extent they truly reflect actual earning capacity at the time of injury.

What constitutes such earning capacity? Earning capacity is composed of three factors: (1) ability to work; (2) willingness to work; and (3) opportunity to work. (Mahoney Co. v. Marshall (WD Wash. 1931) 46 F.2d 539 , 545.) It has been suggested, however, that the history of the statutory definition of average earnings in California shows that earning capacity at the time of injury does not include the third factor, opportunity to work.

We turn therefore to a consideration of such statutory history. The earliest compensation legislation in California was' the Roseberry Act of 1911. This act differed from the present law in that its one specific formula for the computation of average earnings applied only to full-time employees—employees of a class working substantially the whole of the year immediately preceding the injury; and the earning capacity considered was limited to that in the employment in which injury occurred. (Stats. 1911, ch. 399, p. 800.) The Boyn

The present law in its original form was passed in 1917. It changed both the definition of full-time employment just mentioned and the formula for the computation of the average earnings therein. In recognition of the trend from the six-day week to the five-day week, two hundred sixty days a year was declared to be full-time employment. The daily earnings at the time of injury, instead of the average daily wage paid when working during the year immediately preceding the injury, were used to compute average weekly earnings. Earning capacity was further broadened to include all sources and employments, but the earnings from other occupations could not be included at a wage rate in excess of that paid at the time of injury. The special formula for the computation of earnings at an irregular rate or on a periodic basis was added. (Stats. 1917, ch. 586, pp. 842-843.)

The only basic later change made was the 1933 amendment which redefined full-time employment on a weekly rather than an annual basis, introduced the multiple employer computation formula, removed the limitation on earning capacity just stated, and withdrew seasonal work from the specific initial coverage of the earning capacity subdivision. (Stats. 1933, ch. 522, pp. 1343-1344.) It may well be a reasonable inference from the general economic conditions prevailing at the time of the enactment of the 1933 amendment that Its purpose was to remove from the statutory concept of earning capacity at the time of injury the factor of opportunity to work so far as full-time permanent employees were concerned.

That is not the question before us. Respondent was working as a practical nurse at the time of the accident. Such employment is by its very nature intermittent. A practical nurse goes from case to case. Continuity of such employment is the exception rather than the rule. Yet the commission computed respondent’s average earnings under subdivision (a) on the ground that her employment was full-time, that is, in excess of the statutory minimum therefor—the thirty-hour, five-day week. We note that an equally good prima facie case exists for computing them under subdivision

Accordingly, the award is sustainable only if computed correctly under (d), the earning capacity subdivision. The award was computed at the rate of pay at the time of the accident on the basis of full-time work. This method of computation under this subdivision has been affirmed when applied to permanent full-time employees irregularly employed due to generally poor business conditions (California C. I. Exch. v. Industrial Acc. Com. (1933), 135 Cal.App. 746 [ 27 P.2d 782 ]), temporary full-time employees (Department of Water & Power v. Industrial Acc. Com. (1933), 130 Cal.App. 231 [ 19 P.2d 832 ]), seasonal employees (Howell v. Industrial Acc. Com. (1941), 47 Cal.App.2d 326 [ 117 P.2d 919 ]), and intermittent employees. (Aetna Life Ins. Co. v. Industrial Acc. Com. (1933), 130 Cal.App. 488 [ 20 P.2d 372 ] ; Colonial etc. Ins. Co. v. Industrial Acc. Com. (1941), 47 Cal.App.2d 487 [ 118 P.2d 361 ].) On the other hand, an award under this subdivision based upon an evaluation of an intermittent employee’s past earnings within the year immediately preceding the injury was affirmed in the Neahr case.

We believe the Neahr decision correctly interprets subdivision (d) as applied to intermittent employees. As previously stated and as conceded in the Californiá Exchange case at page 753, ordinarily opportunity to work is a factor of earning capacity. The opportunity to work of the intermittent employee normally is not equal to that of the full-time permanent employee. That circumstance is an element of considerable importance in the choice of a job or a trade. To take the rate of pay at the time of injury and apply it on a full-time basis in computing earning capacity at that time is to ignore an established incident of intermittent employment-—its discontinuity. The result may often be to give to the disabled employee a greater income from a compensation

Earning capacity under subdivision (d) cannot properly be determined by reference to the rate of pay alone, as the Aetna (p. 493) and Colonial (p. 492) decisions erroneously assume. Fundamentally, earning capacity is total earnings measured against the period of time within which those earnings were made. Whether the earning capacity rate is identical with the pay rate depends upon the steadiness of employment. Thus, the particular wage rate an employee is receiving at the moment of injury may or may not be indicative of his actual earning capacity at that time.

The statutory formulae for the calculation of average earnings cannot be blindly applied. As stated earlier they are valid only to the extent their application results in ascertaining actual earning capacity at the time of injury. This is so because their use is subject to the reasonable and fair limitation stated in subdivision (d) which we have paraphrased and quoted. If they “cannot reasonably and fairly be applied,” earning capacity as defined in subdivision (d) must be determined. In making this determination due consideration must be given to the earning history of the disabled employee. We agree with the statement in the Aetna decision at page 492 that due consideration means reasonable and not exclusive consideration. But earning history must be considered in arriving at earning capacity, and more often than not, it will be determinative.

We now proceed to examine the award before us in the light of the foregoing discussion and particularly with respect to the three factors which make up earning capacity at the time of injury. As to the first factor, ability to work, respondent testified in effect that she had been on county relief since her arrival in the county in November, 1945, because of her in

The commission could not properly evaluate respondent’s earning capacity under subdivision (d) on the present record. If prior to her employment by petitioner respondent possessed no ability to work, as a literal understanding of her testimony indicates to be the fact, she suffered no compensable loss by reason of the claimed injury. But if she did possess such ability, notwithstanding her testimony to the contrary, two equally plausible surmises present themselves. The general condition of the labor market prevailing in the fall of 1945, and the following winter would indicate that her unemployment was by choice. On the other hand, her unemployment may have been due to lack of opportunity to engage in the work of practical nursing. In any event, the record contains nothing as to her employment or unemployment prior to her single week’s employment by petitioner except her relief status and the fact that she once had had a two-month nursing job in Sacramento. Faced with such an inadequate and incomplete record, the commission was unable to perform its statutory duty of giving due consideration to respondent’s earning history. It could not properly evaluate respondent’s earning capacity at the time of the accident pursuant to subdivision (d) of section 4453 of the Labor Code. Accordingly, the award must be annulled as the result of an erroneous application of the law and as unreasonable. (Lab. Code, § 5952.)

Wood, J., and Kincaid, J. pro tem., concurred.

A petition for a rehearing was denied June 5, 1947, and respondent’s petition for a hearing by the Supreme Court was denied July 10, 1947. Carter, J., voted for a hearing. Tray-nor, J., did not participate.