STATE v. INDUSTRIAL ACCIDENT COMMISSION

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District Court of Appeal, Third District, California.

STATE of California, Subsequent Injuries Fund, Petitioner, v. INDUSTRIAL ACCIDENT COMMISSION of the State of California, Gust Erickson, et al., Respondents.*

Civ. 8980.

Decided: November 28, 1956

Edmand G. Brown, Atty. Gen., F. G. Girard, Deputy Atty. Gen., for petitioner. Daniel C. Murphy, San Francisco, for Industrial Acc. Commission. Loton Wells, San Francisco, for Compensation Fund. Leonard, Hanna & Brophy, San Francisco, for Industrial Indemnity Exchange.

Heretofore, this court granted a writ to review a final decision and award made by respondent Industrial Accident Commission against petitioner, State of California, Subsequent Injuries Fund.

Gust Erickson was employed as an underground miner over the period 1924–1949 by various mining employers. During said periods of employment Erickson was exposed to free silica dust. The cumulative effect of the several exposures was that Erickson contracted the disease of silicosis, which the commission found resulted in disability on September 10, 1949. The commission found that the injury caused temporary and permanent total disability, entitling Erickson to compensation from the State Compensation Insurance Fund, which had been the insurance carrier for Central Eureka Mining Company during the periods March 5, 1941—March 8, 1941 and May 25, 1949—September 10, 1949. It was further found that beginning in 1924 and continuing to the date of disability Erickson had been employed by 20 different employers in whose employments he had been exposed to deleterious free silica dust and that these several exposures had all contributed to his disability. Erickson elected to hold Central Eureka Mining Company and State Compensation Insurance Fund liable for the award made to him. The commission, in proceedings supplemental to the granting of the award, determined the percentage that each exposure bore to the total employment exposure and apportioned the liability as between the several employers and their insurance carriers. The commission found that certain employers were without the commission's jurisdiction and that neither such employers nor any insurer which they may have had would be subject to the enforcement of an award for contribution which could be made by the commission. Accordingly, the commission declared that the State of California, Subsequent Injuries Fund, was chargeable with and liable for contribution to the State Compensation Insurance Fund for the proportionate part which said employments contributed to Erickson's disability, namely, 34.6 per cent. It was ordered that certain employers and certain insurance carriers make other contributions. The State of California, Subsequent Injuries Fund, petitioned for review.

The legislation under which this award was made against petitioner, State of California, Subsequent Injuries Fund, hereinafter called the Subsequent Injuries Fund, was first enacted during 1951 and took effect September 22d of that year. It is to be noted that this was nearly two years after the date of Erickson's injury as fixed by the commission. Petitioner contends, among other things, that the award against the Subsequent Injuries Fund was and is invalid because the commission wrongfully made a retrospective application of the subject legislation. Petitioner asserts it was never the intention of the legislature that such retrospective application should be given to the legislation and further contends that if this court shall hold that such was the intent, then for various reasons advanced the legislature was without power to carry out such intent by reason of constitutional prohibitions.

The legislation referred to is found in Section 5500.5 of the Labor Code. The section confines itself mainly to claims for compensation benefits made on account of occupational disease where the disability arises out of more than one employment. The legislation is largely procedural and remedial. It prescribes the form and content of such an application for compensation benefits; it provides for the joinder by the applicant of any former employer whose employment of the applicant may be claimed by any party to have so contributed to the occupational disease and resultant injury as to render such employer liable for compensation benefits; it declares that in any case involving such a claim the employee making the claim, or his dependents, may elect to proceed against any one or more of the employers named in the application; it provides for the bringing in by interested parties of additional employers claimed to be liable for any award made; and it provides that at any time within one year after the commission has made an award any employer held liable may institute supplemental proceedings before the commission for the purpose of determining an apportionment of liability or right of contribution, but that such proceedings shall not diminish, restrict, or alter in any way the recovery previously allowed the employee or his dependents. Having so provided generally as to claims for compensation benefits made on account of disability from an occupational disease arising out of more than one employment, the act then declares as follows:

‘In any proceeding before the commission for the purpose of determining an apportionment of liability or of a right of contribution where any employee incurred a disability or death resulting from silicosis in underground metal mining operations, the determination of the respective rights and interests of all the employers joined in the proceedings either initially or supplementally shall be as follows:

‘(a) All employers whose underground metal mining operations resulted in a silicotic exposure during the period of the employee's employment in such operations shall be jointly and severally liable for the payment of compensation and medical, surgical, legal and hospital expense which may be awarded to the employee or his estate or dependents as the result of disability or death resulting from or aggravated by such exposure.

‘(b) If any of the employers who have not contributed to payment of the original award shall be without the commission's jurisdiction, or are dead, insolvent, or not subject to enforcement of awards against them for such contributions, either directly or through solvent insurance carriers, then upon such showing being made to the satisfaction of the commission, it shall make an award in favor of the employer or employers who have paid the original award, payable out of the fund [Subsequent Injuries Fund] used for payment of the additional compensation provided for in Section 4751 of this code, in an amount equal to the unreimbursed portions of the original payment or payments to which such employer or employers are found entitled as aforesaid. The use of the fund for such reimbursement in addition to the purposes specified in Section 4751 of this code is hereby authorized. * * *’ (Italics ours.)

The date of injury in cases of occupational disease is that date upon which the employee first suffered disability therefrom and either knew, or in the exercise of reasonable diligence should have known, that said disability was caused by his present or prior employment. Labor Code, Section 5412; Argonant Mining Company v. Industrial Accident Commission, 104 Cal.App.2d 27, 30, 230 P.2d 637. Erickson's cause of action, therefore, accrued September 10, 1949. Argonaut Mining Company v. Industrial Acc. Comm., supra, 104 Cal.App.2d at page 31, 230 P.2d 637. On that date the law provided for joint and several liability of any employer made a party to the action for compensation whose employment contributed to the disease and for an apportionment of liability among such employers through supplemental action. Colonial Insurance Company v. Industrial Accident Commission and Pedroza, 29 Cal.2d 79, 172 P.2d 884. At that time the law cast no liability upon the Subsequent Injuries Fund. The law in effect at the time of the injury is the law governing all rights and liabilities arising out of such injury. It is at that time that the employer's liability becomes fixed, and the law at the time of Erickson's injury provided for joint and several liability of employers whose employment had contributed to the injury, Aetna Casualty and Surety Co. v. Industrial Acc. Comm., 30 Cal.2d 388, 182 P.2d 159; Marsh v. Industrial Acc. Comm., 217 Cal. 338, 18 P.2d 933, 86 A.L.R. 563, but gave no rights to such employers to recoup from the Subsequent Injuries Fund. As stated, the commission found the conditions for recoupment to exist in the present case and accordingly charged the Subsequent Injuries Fund.

Turning now to the contention of petitioner, Subsequent Injuries Fund, that the award is invalid because a wrongful retrospective application of the law was made in this cause, we state certain familiar and pertinent canons of interpretation. A retrospective law is one which affects rights, obligations, acts, transactions and conditions which are performed or exist prior to the adoption of the statute. Aetna Casualty and Surety Company v. Industrial Accident Commission, supra, 30 Cal.2d at page 391, 182 P.2d 159. This case states, 30 Cal.2d at page 393, 182 P.2d at page 161:

‘It is an established canon of interpretation that statutes are not to be given a retrospective operation unless it is clearly made to appear that such was the legislative intent.’

It is presumed that such an intent did not exist unless the intent is expressed or appears from necessary implication. Krause v. Rarity, 210 Cal. 644, 655, 203 P. 62, 77 A.L.R. 1327; People v. Allied Architects Association, 201 Cal. 428, 435–437, 257 P. 511.

Before testing the propriety of giving retrospective application to the subject legislation we will discuss certain contentions of respondent that in fact no such application has been given. Respondents claim that the legislation is procedural and remedial to such an extent that it is a misnomer to designate it as having retrospective effect. Procedural statutes, say respondents, may become operative only when and if the procedure or remedy is invoked, and, hence, if the trial post-dates the enactment, the statute operates in the future regardless of the time of occurrence of the events giving rise to the cause of action. See Davis & McMillan v. Industrial Accident Commission, 198 Cal. 631, 246 P. 1046, 46 A.L.R. 1095; Morris v. Pacific Electric Railroad Co., 2 Cal.2d 764, 768, 43 P.2d 276; Aetna Cas. and Surety Co. v. Industrial Acc. Comm., supra, 30 Cal.2d at pages 393–394, 182 P.2d 159. In the latter case it is stated, 30 Cal.2d at page 394, 182 P.2d at page 161:

‘* * * In such cases the statutory changes are said to apply not because they constitute an exception to the general rule of statutory construction, but because they are not in fact retrospective. There is then no problem as to whether the Legislature intended the changes to operate retroactively.’

We think respondents' contentions here based upon the procedural and remedial character of the subject legislation are disposed of by what the Supreme Court said in the last cited case, 30 Cal.2d at page 394, 182 P.2d at page 162, from which we quote:

‘This reasoning, however, assumes a clear-cut distinction between purely ‘procedural’ and purely ‘substantive’ legislation. In truth, the distinction relates not so much to the form of the statute as to its effects. If substantial changes are made, even in a statute which might ordinarily be classified as procedural, the operation on existing rights would be retroactive because the legal effects of past events would be changed, and the statute will be construed to operate only in futuro unless the legislative intent to the contrary clearly appears. * * * The argument that the statute in this case is a procedural law to which the general rule of statutory construction does not apply is but a different statement of the respondent commission's original contention that it did not give a retrospective application to the amendment. As we have heretofore concluded, the amendment of section 4661 is substantive in its effect, and its operation would be retroactive, since it imposes a new or additional liability and substantially affects existing rights and obligations.'

As we have stated before, when this legislation took effect respondent State Compensation Insurance Fund had been held liable as insurance carrier for Central Eureka Mining Company for the total award made in favor of Erickson. Coincidentally, there arose in its favor rights to have this total liability apportioned among other employers and to receive from them or their carriers proportionate contributions; but this right of recoupment was then limited to such other employers and their carriers. Subsequent Injuries Fund could not then be held liable. Therefore, to apply the legislation in this cause would be to give it retrospective application ‘because the legal effect of past events would be changed.’

We turn now to the contention that the legislature intended to give retrospective operation to the subject legislation. That intention does not appear on the face of the amendment since no express provision was made for its application to cases such as this. But respondents contended that such intention appears by necessary implication. They argue that the legislature clearly intended that the provisions of Labor Code, Section 5500.5, with respect to contributions from the Subsequent Injuries Fund should be applicable to injuries resulting from exposure to silicosis though the exposure antedated the legislation, that is, that, if an employee had contracted the disease of silicosis prior to the effective date of the legislation, but the injury, in the legal sense, had not occurred until after that date, then contribution from the fund in a factually proper case would be available to those held liable to pay compensation. With this we agree and think that the conclusion is reasonably apparent from the face of the legislation itself, wherein it is stated:

‘* * * The Legislature finds that as a matter of public policy and public welfare, sufferers from silicosis resulting from employment in underground metal mines should be compensated for such disability; that due to the peculiar nature of this disease it often does not manifest itself until long after periods of exposure have expired; that this frequently results in disability occurring in or after the last of a series of employments where such exposure existed; that underground metal mining is a class of industry having special character, both as to silicotic hazard and investment hazard; that the latter hazard has resulted in the past in closure of mines, disappearance or financial nonresponsibility of former owners or lessees of such mines and consequent inability of the commission to enforce against them compensation awards for proportionate liability in silicosis cases.’

We have already quoted the legislative statement of the conditions under which contributions may be enforced against the Subsequent Injuries Fund, and we think it apparent from the text itself that the legislature had no intention of excluding from the legislative provisions silicotic exposure cases that had not yet progressed to the point where they had become disabling. The legislature is presumed to have known those provisions of the workmen's compensation legislation with reference to the time when an injury in such cases should be deemed to have occurred and when, therefore, a cause of action arose in favor of the injured employee to enforce liability for compensation upon the employer or the employers whom he elected to hold. We, therefore, agree with petitioner that the legislation does show an intent that it be applied to silicotic cases arising before its passage but culminating in compensable injury thereafter. However, there is nothing retrospective in the application of the legislation to causes of action which arise after its effective date. Prior to that date there is nothing for the law to operate on with respect to cases which have not resulted in compensable injury. It cannot be certain that such a cause will ever arise, however grave the infection may be. Death from other causes may intervene, disabling injury may occur from causes unconnected with silicosis. But from the foregoing we cannot read into the statutory language any implied intent that the legislation should apply where the cause of action arose before the legislation was passed. We think the date of injury as determined by the commission significant in that it marks the point dividing cases out of the range of the statute from those to which the legislation was intended to be applied. We think the legislature intended to adopt that date as such point. But respondents argue that this date of injury is of no significance here, although it may be important and significant with respect to establishing the rights and liabilities as between the injured employee and his employer or employers and for certain other purposes. They say the legislation authorizing compulsory contribution from the Subsequent Injuries Fund does not affect the employer's liability to the employee or the employee's claim against his employers; that the statute merely affords a remedy to California underground metal mining companies and their insurance carriers which did not exist before. We quote the following from respondents' brief as clearly stating their arguments which we are now discussing: ‘Section 5500.5 is in the nature of a curative statute having a remedial purpose. The Legislative intent and purpose in enacting section 5500.5 was to relieve California mining companies which employed miners suffering from silicosis, and their insurance carriers, from an inequitable development of the California law. As the result of the Pedroza decision (Colonial Ins. Co. v. Industrial Acc. Comm., 1946, 29 Cal.2d 79 [172 P.2d 884]), a single California mining company could be held for the full burden of paying compensation, including the furnishing of medical treatment, where it employed a worker suffering from silicosis even though he had contracted the disease primarily as the result of working in mines for many years in states other than California. This was true even though the miner had worked for only a relatively short time for the California company. In section 5500.5, the Legislature has stated: ‘It is inequitable that total ultimate, liability should fall on one or more such employers who happened to be solvent or have solvent insurance carriers within the commission's jurisdiction or in reach of its process.’ As far as relieving such inequity is concerned, it makes no difference whether the disability to the employee occurs before or after the effective date of the section. The situation is just as inequitable where the California mining company employs an experienced miner who has contracted silicosis, and who later becomes disabled but prior to the effective date of the section, as it is where the mining company employs a miner who is suffering from silicosis but who does not actually become disabled until after the effective date of the section. In either case, under the law as it existed prior to the effective date of section 5500.5, the California employer could be held for the full liability even though the great portion of exposure took place outside the State.'

We think these arguments are nothing more than arguments that the legislature might have broadened its remedial scheme. But we think, also, that the legislation cannot be so construed, in the absence of express declarations to that effect. We think the legislature intended the incidence of injury in the legal sense to serve as the cut-off point. It is our conclusion that the subject legislation did not authorize the state through the Subsequent Injuries Fund to be held partially responsible for the award made to Erickson.

What has been said makes it unnecessary to discuss other assignments of error.

The two insurance carriers held liable each for a portion of the total award have stated in their brief: ‘The possibility always exists that this court may entertain a different view of the law than that entertained by counsel for these respondents, and that the award against the Subsequent Injuries Fund may be annulled. Should that occur, there then remains the question ‘What happens to the 34.6 per cent of the workmen's compensation benefits paid, or to be paid, to the respondent Gust Erickson which had been charged to the Subsequent Injuries Fund?’' They say there are three possible alternatives: 1. That the amount apportioned to the Subsequent Injuries Fund must be borne by the State Compensation Insurance Fund, in addition to the 44.9 per cent now charged to it by the commission; 2. The 34.6 per cent must be apportioned between the State Compensation Insurance Fund, the other respondent carriers, and the respondent self-insured employer; 3. The benefits payable to Erickson must be reduced by 34.6 per cent because of the part his out-of-state employment has played in causing his present disability. They urge that all factual issues which would be involved in such determination have been decided by the commission and that, therefore, only legal issues remain and they urge this court, if, as it has done, it annuls the award against the Subsequent Injuries Fund, to proceed then to adjudicate which of the three alternatives should be adopted as to the disposition of the 34.6 per cent disability award thus lifted from the shoulders of the Subsequent Injuries Fund. However, we think it not proper for this court to act upon the request. By Section 21 of Article XX of the Constitution the legislature has been vested with plenary power to fix and control the manner of review of decisions rendered by the Industrial Accident Commission. The legislature has provided for review by the appellate courts. It has fixed the scope of such review by Section 5952 of the Labor Code. It has declared that the review shall not extend further than to determine, based upon the entire record, whether the commission acted without or in excess of its powers, fraudulently, unreasonably or without substantial evidentiary support for its decision. Petitioner herein attacked only the decision made against itself. No other party to the subject proceedings has asked for review, and we think that, under the circumstances, we would be extending the review unwarrantably if we went further than the annulling of that part of the decision of the commission which the petitioner has attacked.

That portion of the decision of the Industrial Accident Commission which casts liability on petitioner is annulled and the supplemental proceedings are remanded to the commission.

VAN DYKE, Presiding Justice.

SCHOTTKY and PEEK, JJ., concur.

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