Myers v. Workmen's Compensation Appeals Board

Charles Myers, a fireman for the City of Los Angeles, sustained a compensable injury during employment; became disabled February 27, 1954; thereafter was paid full salary in lieu of compensation until his retirement for physical disability on September 7, 1954; filed an application for permanent disability compensation; and on April 28, 1965, received a favorable decision from a referee who, on that date, filed his findings and award decreeing Myers’ disability became permanent on retirement and he was entitled to compensation therefor in the sum of $12,000, payable at the rate of $30 per week, commencing September 14, 1954 for 400 weeks, and thereafter in the further sum of $18.46 per week for life, together with interest as provided by law. Attorney’s fees were fixed at $1,250. At issue was the contention, rejected by the referee, the city chould receive credit for pension payments by it to Myers.

On July 1, 1965 the Industrial Accident Commission granted city’s petition for reconsideration, stating:

“This matter involves complex questions of fact and law. The Commission desires to give the matter greater study and is, therefore, granting reconsideration for this purpose.

“For the foregoing reasons:

“It Is Ordered that Petition for Reconsideration filed herein by defendant on May 17, 1965 be, and the same hereby is Granted.”

Myers died on February 1, 1968.

On May 7, 1968, the Workmen’s Compensation Appeals Board, successor in title and authority to the Industrial Accident Commission, without taking further evidence or hearing further arguments, filed its opinion after reconsideration; agreed in all substantial respects with the opinion of the referee making the findings and award on April 28, 1965; but set aside thoise findings and award; substituted its findings, which on the issue of liability and amount of compensation were identical in form and substance with those of the referee,, fixing compensation in the amount found by the referee and denying the city’s claim for credit on account of pension payments; also found, on account of the death of Myers, his widow was entitled to the award; and made an award to Emma J. Myers, surviving widow of Charles Myers, of permanent disability indemnity in the amount previously awarded, viz., $12,000, plus $5,508.99, the latter being the sum of $18.46 per week for the period commencing May 15, 1962, and ending February 1, 1968, the date of Myers’ death. Attorney’s fees were raised to $1,500. The award also stated: “Interest as provided by law.”

The effect of the quoted provision of former Labor Code section 115, and the status of an award made and filed by a referee as the award of the “Commission” pending further action by the “Commission” must be determined in light of the statute as a whole.

An award of compensation includes the right to interest thereon from the date of making and filing the award (Lab. Code, § 5800); the right to have a judgment upon the award entered in the superior court (Lab. Code, § 5806); the right to obtain a judgment lien (Greitz v. Sivachenko, 152 Cal.App.2d 849 , 850 [ 313 P.2d 922 ]); and the right to enforce the judgment by execution. (Gen. see Vickich v. Superior Court, 105 Cal. App. 587 [ 288 P. 127 ].)

The following provisions of the statute are pertinent to a consideration of the status of the award of the “Commission” made and filed by the referee after the filing and granting of a petition for reconsideration:

(The quoted provisions were in effect before the statute was amended in 1965 to change the designation of the “Commission” to “Appeals Board,” and with this change in designation are in effect at the present time.)

(1) Labor Code section 5910 provides, upon the filing of a petition for reconsideration the award automatically is suspended for a period of 10 days; and also provides the “commission . .. may stay, suspend, or postpone the . . . award during the pendency of the reconsideration.” (Italics ours.) The “reconsideration” is pending from the time the petition therefor is granted until the “Commission” concludes its action in the premises. During this time, the award which is the subject of reconsideration must be in existence, otherwise there would be no purpose in conferring upon the “Commission” the power to “stay, suspend or postpone” it during this time.

(2) Labor Code section 5906 provides: “Upon the filing of a petition for reconsideration ... the commission . . . may with or without further

In the proceedings at bench the “Commission” granted reconsideration but did not direct the taking of additional evidence. To the contrary, the order granting reconsideration expressly stated the purpose therefor was “to give the matter greater study.” At that time the employee was alive. Obviously reconsideration was not granted for the purpose of altering and amending the award to provide for the termination of payment of compensation upon his death, or the payment to his widow of compensation unpaid at the time of his death. Implicit in the award of the “Commission” made and filed by the referee were the provisions of the statute in contemplation of death of the employee. Labor Code section 4700 provides the death of the employee terminates the disability and any accrued and unpaid compensation shall be paid to his “heirs or other persons entitled thereto, without administration.” Thus it is apparent the only evidence before the commission upon reconsideration not a part of the record in the case was that relating to matters independent of its award made and filed by the referee, i.e., evidence of the employee’s death.

(3) Labor Code section 5908 also provides an “award made following reconsideration which affirms, rescinds, alters or amends the original . . . award . . . shall not affect any right or the enforcement of any right arising from or by virtue of the original . . . award, unless so ordered by the

As heretofore noted, the decision of the appeals board ordered the findings and award filed on April 28, 1965 “annulled, vacated and set aside”; purportedly substituted in lieu thereof findings of fact identical in substance to those filed on April 28, 1965, with the exception of the finding the employee had died and left surviving him his widow, Emma J. Myers, and the additional finding the reasonable value of the services of the employee’s attorney was $1,500 instead of $1,250; and purportedly substituted an award identical in amount and terms to the award filed on April 28, 1965, except the amount payable under the life pension became fixed as of the date of death of the employee. To determine the date from which interest runs pursuant to Labor Code section 5800, the decision of the appeals board following reconsideration must be viewed in light of its substance rather than its form. (Snapp v. State Farm Fire & Cas. Co., 60 Cal.2d 816 , 818-822 [ 36 Cal.Rptr. 612 , 388 P.2d 884 ]; Espinoza v. Rossini, 257 Cal.App.2d 567 , 572-573 [ 65 Cal.Rptr. 110 ]; Argonaut ¡ns. Co. v. Workmen's Comp. App. Bd., 247 Cal.App.2d 669 , 676 [ 55 Cal. Rptr. 810 ].) When so viewed it is apparent the decision of the appeals board on reconsideration is an affirmance of its previous award.

It is the policy of the law a judgment should bear interest from date of rendition even though subject to direct attack. (Snapp v. State Farm Fire & Cas. Co., supra, 60 Cal.2d 816 , 818; Espinoza v. Rossini, supra, 257 Cal.App.2d 567 , 569.) Although reconsideration of an award may encompass a review broader in scope than a review of a judgment on appeal where, as in the proceedings at bench, the only issue reviewed is a question of law, the functions of the reviewing agencies are analagous. In Snapp v. State Farm Fire & Cas. Co., supra, 60 Cal.2d 816 , the Supreme Court held a decision on appeal reversing a judgment in the sum of $8,168.25, with directions to enter judgment in the sum of $25,000, in substance, was a modification and affirmance of the judgment; and that interest should run thereon from the date of the original judgment rather

The rationale of the opinion in Snapp, because of the analagous status of the judgment therein and the original award in the proceedings at bench, applies to the latter and dictates the conclusion the language of the decision on reconsideration purportedly setting aside the original findings and award, which is inconsistent with the actual effect of the decision, should be disregarded.

The fact payments under the pension award terminated upon death of the employee, his widow thereupon became entitled to payment, and the attorney’s fees were increased $250, is not significant in determining whether or not the award upon which interest runs was the original award made and filed on April 28, 1965, or a new award included within the decision upon reconsideration. In the event reconsideration had not been granted interest would have run from April 28, 1965, to date of payment even though in the interim the employee died, payments on the pension award terminated upon his death, and his widow thereupon became entitled to the amounts unpaid. Inclusion in the decision on reconsideration of a finding the employee died and left surviving a widow, and a determination of the rights of the parties under the award in accordance with governing statutory rules, did not constitute an alteration or amendment of the original award in any manner related to the date from which it should bear interest. In substance, the finding of fact authorizing and the award directing termination of compensation and payment to the widow of the amounts unpaid, carried out the provisions implicit in the original award respecting its effect upon death of the employee, a matter over which the appeals board had continuing jurisdiction independently of pending reconsideration proceedings.

The situation at bench is similar to that in Espinoza v. Rossini, supra, 257 Cal.App.2d 567 , 569, where the trial court granted a motion for new trial setting aside a money judgment in favor of the plaintiff; the latter appealed; the appellate court reversed the order granting a new trial with directions to enter judgment on the verdict in favor of plaintiff; a second judgment was entered; plaintiff sought interest on the amount thereof from the date of entry of the original judgment; the trial court ordered payment of interest from the date of entry of the second judgment; and on appeal the latter order was reversed and the later judgment modified to provide for interest from the date of the original judgment.

The city has had the use of the money awarded Meyers from the time it was payable under the award made and filed April 28, 1965, to affirmance

The order is annulled and the appeals board is directed to proceed in harmony with the views expressed in this opinion.

Brown (Gerald), P. J., and Whelan, J., concurred.

Respondents’ petitions for a hearing by the Supreme Court were denied February 11, 1970. Burke, J., was of the opinion that the petition should be granted.