PACIFIC EMPLOYERS INSURANCE CO v. INDUSTRIAL ACCIDENT COMMISSION

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District Court of Appeal, Second District, Division 3, California.

PACIFIC EMPLOYERS INSURANCE CO., Petitioner, v. INDUSTRIAL ACCIDENT COMMISSION of the State of California and Tom L. Stroer, Respondents.*

No. 23500.

Decided: February 11, 1959

Clopton & Penny and Robert C. Wreisner, Los Angeles, for petitioner. Everett A. Corten, San Francisco, and Edward A. Sarkisian, Los Angeles, for respondent Commission. Levy, Russell, DeRoy & Geffner, Los Angeles, for respondent Stroer.

By this proceeding petitioner seeks review and annulment of an award by the respondent commission of maximum temporary partial disability benefits to the respondent Tom L. Stroer, hereinafter referred to as ‘employee.’

On July 29, 1957, the employee, a carpenter, sustained an admitted industrial injury to his back. Petitioner, the employer's insurance carrier, accepted liability and voluntarily furnished medical care and paid compensation until February 17, 1958. There is no present question as to such care and compensation.

Under date of February 18, 1958, Dr. Manning, the treating physician on behalf of the petitioner, reported that the employee had been ‘temporarily totally disabled until 2–17–58’ but had been ‘advised that he should return to work as of 2–17–58.’ Thereupon petitioner stopped temporary disability indemnity and the employee filed the application herein on which hearing was held on July 23, 1958.

At said hearing the employee testified inter alia that he had been unable to do other than ‘finish carpenter’ work which is lighter than regular or ‘rough’ carpenter work; that he had registered on February 18, 1958, at his union hiring hall for finish carpenter work and had reported to the hall practically every day and that he would have accepted any type of finish carpenter work had it been available but none had been available; that he had no work until July 7, 1958, when he took on a job of remodelling a barn into a house which job did not involve any framing and part of the work was finish work.

The referee's finding and award provided that the employee's injury ‘caused temporary partial disability, beginning February 17, 1958, to and including July 6, 1958, during which time work of a type which the applicant could perform was not available to him, entitling him to $40 per week during said time, based on maximum earnings.’

Petitioner does not complain of the finding that during the period in question the employee was temporarily partially disabled. Petitioner, however, contends that the commission did not make findings as required by Labor Code, § 4657, as to the ‘probable earnings' or ‘the proportionate loss of physical ability or earning power caused by the injury.’ This contention is well founded and must be sustained.

Labor Code, section 4657, reads as follows: ‘In case of temporary partial disability the weekly loss in wages shall consist of the difference between the average weekly earnings of the injured employee and the weekly amount which the injured employee will probably be able to earn during the disability, to be determined in view of the nature and extent of the injury. In computing such probable earnings, due regard shall be given to the ability of the injured employee to compete in an open labor market. If evidence of exact loss of earnings is lacking, such weekly loss in wages may be computed from the proportionate loss of physical ability or earning power caused by the injury.’

Section 4654 of the Labor Code which is correlated with section 4657 reads: ‘If the injury causes temporary partial disability, the disability payment is 65 per cent of the weekly loss in wages during the period of such disability.’

Speaking of the foregoing sections the court in California Compensation Ins. Co. v. Industrial Acc. Comm., 1954, 128 Cal.App.2d 797, 811–812, 276 P.2d 148, 155, 277 P.2d 442, wherein the factual situation was strikingly similar to that here, said: ‘These sections taken together establish the standard by which a weekly wage loss attributable to a temporary partial disability may be fixed. Where the employee so disabled has, in fact, established himself in an occupation paying less than he regularly earned before, his weekly wage loss can be quite readily ascertained. However, where such employee, although able and available for work has at the time of the hearing been unable to secure employment, section 4657 comes into play by providing the yardstick by which his weekly wage loss is to be measured.

‘* * * The requirement of the statute before us is that an employer pay compensation to an injured employee during his temporary partial disability in an amount representing the difference between his earnings before injury and what he ‘will probably be able to earn during the disability,’ giving ‘due regard * * * to the ability of the injured employee to compete in an open labor market.’

‘It is the duty and function of the commission to weigh the evidence and make findings of fact. Labor Code, § 115. The difference between the earnings of the employee before an injury and his probable ability to earn thereafter because of the nature of his injury is primarily a question of fact upon which findings must be made. Tarascio v. S. C. Poriss Co., 116 Conn. 707, 164 A. 206, 207. It is a matter to be established by proof, and cannot be arbitrarily fixed. (Citations.) Loss of wages due to an inability to secure work which has its origin merely in general business conditions or the slackness of the demand for labor furnishes no basis for an award of workmen's compensation. (Citations.) Though the workmen's compensation act is to be liberally construed to extend its benefits for the protection of those coming within its provisions, it is not intended to provide unemployment insurance benefits. (Citations.) To sustain an award such as has been made herein, the evidence must show and the commission must find that the employee's probable inability to earn any amount whatsoever is traceable to the injury, whether it be through an inability to perform work or an inability to procure work. Reilley v. Carroll, 110 Conn. 282, 147 A. 818.’

The finding here that ‘[s]aid injury caused temporary partial disability between February 17, 1958, to and including July 6, 1958, during which time work of a type which the applicant could perform was not available to him’ does no more than to declare that the employee was partially disabled and since he was unable to obtain employment of the type which he could perform therefore he is entitled to the same amount of temporary disability indemnity as if he had been totally disabled. (Italics ours.) Not only is there no attempt by this finding to determine ‘the difference between the average weekly earnings of the injured employee and the weekly amount which the injured employee will probably be able to earn during the disability, to be determined in view of the nature and extent of the injury’ but, as is well said by the petitioner, the award fails to ‘give ‘due regard * * * to the ability of the injured employee to compete in the open labor market’ and makes no attempt to compute the weekly loss in wages based upon the proportionate loss of physical ability or earning power caused by the injury.'

Aside from the foregoing, as pointed out in California Compensation Ins. Co. v. Industrial Acc. Comm., supra, the evidence is not such as to necessarily require a finding that the employee's disability was of a type which rendered him unable to compete in the open market for some generally available line of work under the ‘odd lot’ doctrine enunciated in Meyers v. Industrial Accident Comm., 39 Cal.App.2d 665, 103 P.2d 1025.1 The evidence as readily lends itself to the interpretation that the employee's failure to obtain finish carpenter work was caused in part by his disability and in part by economic conditions. ‘Under these circumstances, the commission should have made appropriate findings of fact as to whether [the employee] was an ‘odd-lot,’ and if not, as to what earnings were reasonably to be anticipated by [the employee] in his then state of disability, taking into consideration the factors enumerated in section 4657.' California Comp. Ins. Co. v. Industrial Acc.Comm., supra, 128 Cal.App.2d 797, 813, 276 P.2d 148, 156.

Nor is it any answer to say, as did the commission's Southern Panel in its report on order denying reconsideration, that ‘we see no point in granting defendant's Petition for Reconsideration to either find that applicant, as a temporarily partially disabled person, was an odd lot on the labor market or to find that for all practical purposes he was totally disabled during the period in question.’ If the employee was partially disabled, as it is admitted the commission properly found, it is apparent that he could not have been totally disabled and the award cannot be sustained upon this hypothesis in the absence of a finding that he was totally rather than partially disabled. And the fact that the employee was unable to perform the work of a rough carpenter although he was ready, willing and able to accept employment as a finish carpenter does not serve to establish, as the commission suggests, that he fell into the ‘odd lot’ category. Assuming that finish carpentry work is work of a light nature it may not be said that it is not work ‘of a general nature,’ but rather, ‘special work not generally available.’ No authority has been called to our attention which suggests that if an employee is unable to perform his regular work due to a temporary partial disability he must in every case be classified as an ‘odd lot’ on the labor market when he is unable to obtain work which he can perform. If this were so section 4657 would serve no purpose.

Inasmuch as the commission's award is unsupported by a finding that the employee's disability brought him within the ‘odd lot’ category and there is no finding as to his probable earnings during his period of temporary partial disability, the award cannot stand.

The award is annulled, and the cause remanded to respondent commission for further proceedings in consonance with the views herein expressed.

FOOTNOTES

1.  The ‘odd lot’ doctrine is stated in the cited case as follows: “The authorities draw a distinction between cases in which it appears that the injured employee can do light work of a general nature and where he is only fitted to do ‘odd’ jobs, or special work, not generally available. In the former, the burden is on the petitioner; the presumption being that his inability to obtain employment is due to the fluctuations in the labor market and not to the consequences of the accident. In the latter, the burden is on the employer to show that such special work is available to the petitioner.”

PATROSSO, Justice pro tem.

SHINN, P. J., and VALLEÉ, J., concur.

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