SUBSEQUENT INJURIES FUND v. INDUSTRIAL ACCIDENT COMMISSION

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

SUBSEQUENT INJURIES FUND of the State of California, Petitioner, v. INDUSTRIAL ACCIDENT COMMISSION of the State of California, Allen Roberson, Fidler's Manufacturing Co., Inc., State Compensation Insurance Fund, Respondents.

Civ. 26746.

Decided: February 20, 1963

Stanley Mosk, Atty. Gen., Edward M. Belasco and Herbert Davis, Deputy Attys. Gen., for petitioner. Everett A. Corten, San Francisco, and Edward A. Sarkisian, Los Angeles, for respondent Industrial Accident Commission.

The Subsequent Injuries Fund of the State of California seeks to annul an award of the Industrial Accident Commission wherein the fund was required to pay medical-legal costs of the claimant Allen Roberson incident to his claim for subsequent injury compensation although he did not succeed in establishing that claim under the provisions of section 4751 of the Labor Code.1

The determination of this matter depends upon the construction of the language of the second paragraph of section 4600 of the Labor Code in the light of the amendment thereof in 1959. (Stats.1959, c. 1189, p. 3278, § 9.) The words added as well as the words eliminated in 1959 are evident from the following statement of that paragraph (the words added being in italics and the words eliminated being within brackets): ‘In accordance with the rules of practice and procedure of the commission, the employee, or the dependents of a deceased employee, shall be reimbursed for expenses reasonably, actually, and necessarily incurred for X-rays, laboratory fees, [and] medical reports, and medical testimony [required] to [successfully] prove a contested claim. The reasonableness of and necessity for incurring such expenses to prove a contested claim shall be determined with respect to the time when such expenses were actually incurred. Expenses of medical testimony shall be presumed reasonable if in conformity with the fee schedule charges provided for imparitial medical experts appointed by the commission.’

In State of California v. Industrial Acc.Comm., 126 Cal.App.2d 740, 273 P.2d 342, decided in 1954, the court determined that the provisions embodied in the first sentence of the second paragraph of section 46002 of the Labor Code were applicable to the employee and the Subsequent Injuries Fund in a proceeding in which the employee ‘successfully proved’ his claim. An item of $35 as reimbursement for his medical-legal costs, with respect to a medical report which the employee filed in support of his application for an award against the fund, was held to be a proper part of the award. The court said in part (126 Cal.App.2d, at page 742, 273 P.2d, at page 342): ‘These provisions are general in nature and would seem applicable to any ‘claim’ which an ‘employee’ might have, whether against his employer or against the Subsequent Injuries Fund, if the claim is ‘contested’ and is ‘successfully proved,’ which this claim was. Significantly, these provisions * * * deal with a separate and distinct subject, litigation costs3 instead of medical, surgical and hospital treatment; and are not in terms limited to the obligation of the employer * * *.' The court further stated (126 Cal.App.2d 740, at page 744, 273 P.2d 342, at page 344): ‘This is quite like costs in a civil action, which are ‘in the nature of incidental damages to indemnify a party against the expense of successfully asserting his rights', Purdy v. Johnson, 100 Cal.App. 416, 418, 280 P. 181, 182, and the awarding of such costs, which ‘is but an incident to the judgment’, Wells Fargo & Co. v. City & County of S. F., 25 Cal.2d 37, 44, 152 P.2d 625, 629.'

An amendment of the language of a section of a code does not necessarily involve a change in the law. (W. R. Grace & Co. v. California Emp. Com., 24 Cal.2d 720, 729, 151 P.2d 215.) As succinctly stated in Hise v. McColgan, 24 Cal.2d 147, at page 159, 148 P.2d 616, at page 622: ‘Under appropriate circumstances an amendment to a statute may be for the purpose of clarification rather than new matter or an alteration of the former law.’ (See also Koenig v. Johnson, 71 Cal.App.2d 739, 753–754, 163 P.2d 746.)

There is nothing in the amendment made in 1959 to section 4600 of the Labor Code which discloses that the Legislature intended to change the concept, expressed in State of California v. Ind. Acc. Comm., supra, 126 Cal.App.2d 740, 273 P.2d 342, that such medical-legal costs are incident to an award of compensation for injuries made to a prevailing claimant. By that amendment express provision for the item of ‘medical testimony’ as a reimbursable cost was made. But the deletion of the word ‘successfully’ merely removed a redundancy, as is evident from a consideration of the meaning of the words ‘to prove.’ In Lawson v. Superior Court, 155 Cal.App.2d 755, at page 758, 318 P.2d 812, at page 814, it is said: “To prove' means ‘to establish or make certain; to establish a fact or hypothesis as true by satisfactory and sufficient evidence’ (Black's Law Dictionary, Third Ed.) * * *.' To prove a matter is to achieve an ultimate goal and, therefore, to be successful. (See Merlino v. Fresno Macaroni Mfg. Co., 74 Cal.App.2d 120, 124, 168 P.2d 182.) Thus, a claim could not be said to be proven ‘unsuccessfully,’ since that would involve a contradiction in meaning.

The conclusion that costs of the nature set forth in section 4600 of the Labor Code cannot be awarded to an unsuccessful claimant is consonant with the duty of the court to construe such legislation in the light of its beneficent aims. As aptly stated by Mr. Justice Dooling in State of California, etc. v. Industrial Acc. Comm., 151 Cal.App.2d 147, at page 149, 311 P.2d 42, at page 44: ‘The Labor Code must be liberally construed to effect its benefit purposes, and this rule extends to the construction of the provisions relating to the Subsequent Injuries Fund. Subsequent Injuries Fund v. Industrial Acc. Comm., 39 Cal.2d 83, 91, 244 P.2d 889. But liberal construction does not justify writing into the statute a provision which is not to be found therein even by the most liberal reading of its terms.’

The award against the Subsequent Injuries Fund of the State of California for medical-legal costs is annulled.

FOOTNOTES

1.  Section 4751 of the Labor Code is in part as follows: ‘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 percent 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; * * *.’

FN2. The portion of section 4600 of the Labor Code then before the court was in the following language: ‘In accordance with the rules of practice and procedure of the commission, the employee, or the dependents of a deceased employee, shall be reimbursed for expenses reasonably, actually, and necessarily incurred for X-rays, laboratory fees, and medical reports required to successfully prove a contested claim.’.  FN2. The portion of section 4600 of the Labor Code then before the court was in the following language: ‘In accordance with the rules of practice and procedure of the commission, the employee, or the dependents of a deceased employee, shall be reimbursed for expenses reasonably, actually, and necessarily incurred for X-rays, laboratory fees, and medical reports required to successfully prove a contested claim.’

3.  At that point in the opinion reference was made to a footnote which was an follows: ‘The reimbursable expenses here involved are in the nature of ‘costs incurred by an employee in a proceeding before the commission when prosecuting his claim for compensation,’ not expenses incurred by him for medical treatment. Kaiser Co. v. Industrial Acc. Com., 109 Cal.App.2d 54, 59, 240 P.2d 57.'

FORD, Justice.

SHINN, P. J., and FILES, J., concur.