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District Court of Appeal, Third District, California.

Jack A. SCHLAG, Petitioner, v. INDUSTRIAL ACCIDENT COMMISSION OF The State of CALIFORNIA, and the Subsequent Injuries Fund of the State of California, Respondents.

Civ. 9419.

Decided: May 23, 1958

Harry A. Ackley and Lewis F. Shearer, Woodland, for Petitioner. Everett A. Corten, Daniel C. Murphy, Melvin S. Witt, San Francisco, for respondent Industrial Acc. Comm. Edmund G. Brown, Atty.Gen., by Frederick Girard, Deputy Atty.Gen., and Irving H. Perluss, Asst.Atty.Gen., Sacramento, for respondent, Subsequent Injuries Fund.

Petitioner seeks a review and annulment of an order of the Industrial Accident Commission denying him benefits from the Subsequent Injuries Fund.

Petitioner, an iron worker, sustained an injury to his neck, arising out of and occurring in the course of his employment. It was determined by the Industrial Accident Commission, hereafter referred to as the commission, that he suffered permanent disability from that injury and he was given a permanent disability rating of 13 1/4 per cent. He then sought benefits from the Subsequent Injuries Fund under Labor Code, section 4751, for the preexisting disabilities.

At the hearing, petitioner testified that he had the following preexisting disabilities and impairments: A right thumb disability, a left leg disability, a right foot disability, a neck disability, a left foot disability, a right ankle disability, a jaw and chest and heart disability. Some of the disabilities were symptomatic and some were asymptomatic just prior to the industrial injury.

The commission found that the petitioner suffered from multiple preexisting disabilities and physical impairment prior to the industrial injury but that the only one known to the employer was a preexisting disability to the neck. A further finding was that the combined disability resulting from the injury of April 7, 1955, and the known preexisting disability amounted to a permanent disability of 51 1/2 per cent, a minimum of 70 per cent disability being required by Labor Code, section 4751. It was determined and ordered that the petitioner take nothing from the Subsequent Injuries Fund.

Petitioner contends that an employer need only have knowledge of some preexisting partial disability in order to warrant inclusion of all preexisting permanent disabilities and impairments in determining an employee's eligibility for Subsequent Injuries Fund benefits. On the other hand, it is the contention of the commission that knowledge by the employer of a disability preexisting in industrial injury does not warrant inclusion (for determining eligibility of an employee for Fund benefits) of other disabilities and impairments preexisting the industrial injury which were unknown to the employer. We have concluded that the contention made by the commission is correct.

Section 4751 of the Labor Code provides:

‘If an employee who is permanently partially disabled receives a subsequent compensable injury resulting in additional permanent partial disability so that the degree of disability caused by the combination of both disabilities is greater than that which would have resulted from the subsequent injury alone, and the combined effect of the last injury and the previous disability or impairment is a permanent disability equal to 70 per cent or more of total, he shall be paid in addition to the compensation due under this code for the permanent partial disability caused by the last injury, compensation for the remainder of the combined permanent disability existing after the last injury as provided in this article.’

The underlying policy of this statute is to encourage the hiring of handicapped workers. Subsequent Injuries Fund v. Industrial Acc. Com., 39 Cal.2d 83, 244 P.2d 889.

Knowledge of preexisting disability and impairment has been considered by the appellate courts of this state in four cases.

In State of California, Subsequent Injuries Fund v. Industrial Accident Commission, 135 Cal.App.2d 544, 553, 288 P.2d 31, 37, the court said, in considering the statute: ‘We conclude that section 4751, Labor Code, was not intended to apply to asymptomatic disease processes which were unknown to both employee and employer and which in nowise interfered with the employee's ability to work.’

The above case was followed by Urquiza v. Industrial Accident Commission, 144 Cal.App.2d 322, 300 P.2d 871. In that case the employee had a preexisting mental disability known to him which the court found symptomatic prior to the industrial injury. The commission had made an award against the Fund but there was no evidence that the employer knew of this preexisting impairment. The court annulled the award and remanded the case to the commission. It was pointed out that in order to bring the petitioner within the provisions of section 4751 of the Labor Code there must be proof of the employer's knowledge of the prior impairment.

The same rule was followed in State of California, Subsequent Injuries Fund v. Industrial Accient Commission and Marguerite Bachrach, 147 Cal.App.2d 818, 306 P.2d 64. There the employee had a preexisting arthritic condition and suffered an industrial injury. One of the grounds annulling the award against the Fund was that the employer had no knowledge of the arthritic condition.

And in State of California, Subsequent Injuries Fund v. Industrial Accident Commission, 150 Cal.App.2d 716, 717, 719, 311 P.2d 26, 27, the court cited the above cases and said: ‘In view of the recent cases cited, there can be no doubt as to the rule which should be applied, and that the Subsequent Injuries Fund would only be liable in those cases where the preexisting injury was known or would have been known to the employer.’

Petitioner argues that the above cases are inapplicable to the facts in the instant case because the employer here knew of the preexisting disability to his neck. However, the employer did not know of petitioner's preexisting multiple disabilities or impairment and as to those disabilities he stood in no different position in obtaining his employment than if he had been under no disadvantage. While it is true that none of the above cases involved an employee who had multiple preexisting disabilities or impairments, nevertheless, in the light of what has been said in those cases, it seems clear to us that only those preexisting disabilities or impairments may be considered which are easily recognizable permanent disabilities or which are known to the employer. It is apparent that in the instant case none of petitioner's preexisting disabilities, other than the disability to his neck, were easily recognizable disabilities and they were found not to have been known to his employer. Obviously, those disabilities not being known to the employer were not considered by him in hiring the petitioner. Thus, section 4751 of the Labor Code did not have the effect of encouraging the employment of petitioner insofar as the multiple preexisting disabilities were concerned. We, therefore, by reason of the rule laid down in the above mentioned cases, conclude that the commission properly considered only those preexisting disabilities which were known to petitioner's employer or that were easily recognizable.

The order of the Industrial Accident Commission is affirmed.

WARNE, Justice pro tem.

VAN DYKE, P. J., and SCHOTTKY, J., concur.