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

Ronald C. WILKINSON, Petitioner, v. WORKMEN'S COMPENSATION APPEALS BOARD of the State of California et al., Respondents.

Civ. 44612.

Decided: April 29, 1976

Banks & Leviton, Inc., Eugene Leviton, Santa Ana, for petitioner. Evans, Dalbey & Cumming, Andrew W. Barclay, Hollywood, for respondent Cal. Cas. Indem. Exchange. Thomas J. McBirnie, Jr., San Francisco, for respondent Workmen's Compensation Appeals Bd.

By this petition petitioner, an employee of Taurean Restaurant, seeks judicial review of the opinion and decision after reconsideration of the Workmen's Compensation Appeals Board.1 On October 3, 1974, this court issued a writ of review returnable on December 20, 1974. For reasons to be stated the action of the Board will be affirmed.

On August 24, 1972, Ronald C. Wilkinson filed an application with the Workmen's Compensation Appeals Board, case number 72 DOW 3455, for injuries to both knees and his back occurring June 30, 1972. On January 10, 1973, a second application was filed with the Board, case number 73 BGN 5317, for injuries to both knees occurring April 15, 1972. On April 17, 1973, an award of temporary disability was made in case 72 DOW 3455 and on the same date an award of compensation for self-procured medical was made in case 73 BGN 5317.2 Thereafter supplemental proceedings were had jointly in both cases on a permanent disability rating. The following findings and awards were made on February 20, 1974:

1. In 72 DOW 3455 ‘This injury [June 30, 1972] caused permanent disability of 15 1/4%, after apportionment, equivalent to 51.25 weeks, payable at the rate of $70.00 per week, in the total sum of $3,587.50.’

2. In 73 BGN 5317 ‘This injury [April 15, 1972] caused permanent disability of 15 1/4%, after apportionment, equivalent to 51.25 weeks, payable at the rate of $70.00 per week, in the total sum of $3,587.50.’

Petitioner concedes that the awards were made consistently with the method used by the Board and approved by the courts under Labor Code sections 47503 and 4658 prior to the amendment of the latter section effective April 1, 1972, but suggests that the amendment and other considerations require a change in the traditional method of apportionment of the percentage of permanent disability on arriving at the actual dollar amount of the award. Petitioner points out that under the amended section 4658 he should be entitled to a total award of $866.50 on a disability rating of 30 1/2 per cent of $1492.50 more than the aggregate of the two 15 1/4 per cent awards, and in support thereof contends that section 4750 is not applicable to require the method of computation used by the Board.

In view of the contention being made it is unnecessary for us to consider the propriety of the percentage of permanent disability or the cumulative number of benefit weeks attributed by the Board to each of the injuries. Our decision requires simply that we determine whether the Board was correct in using the percentage of permanent disability assigned to each injury separately or should have used the total in computing the number of benefit weeks to be allowed for permanent disability.

We conclude that the Board was correct in considering the two disabilities separately in computing the award. The record is clear that Wilkinson was suffering from a previous physical impairment at the time of the second injury. Section 4750 prohibits considering a former disability or physical impairment in compensating for the subsequent injury. There is nothing in section 4658 which suggests, much less compels, that the disability ratings be combined for purposes of computing the award.

In the recent case of Fuentes v. Workers' Comp. Appeals Bd., 16 Cal.3d 1, 128 Cal.Rptr. 673, 547 P.2d 449, our Supreme Court considered the application of sections 4750 and 4658 in a case involving preemployment nonindustrial and post employment industrial disabilities. In holding that only the latter should be considered in computing the benefits, the court observed at pages 7–8, 128 Cal.Rptr. at pages 677–678, 547 P.2d at pages 453–454:

‘Petitioner contends that there is an irreconcilable conflict between the legislative intent in increase workers' compensation benefits as manifested by section 4658, on the one hand, and the limiting effect of section 4750 on the other. This conflict, it is argued, invokes the familiar rules of statutory construction requiring that we give effect to the more recently enacted law. (See City of Petaluma v. Pac. Tel. & Tel. Co. (1955) 44 Cal.2d 284, 288, 282 P.2d 43; Rees v. Layton (1970) 6 Cal.App.3d 815, 821, 86 Cal.Rptr. 268.) Whenever possible, however, we must reconcile statutes and seek to avoid interpretations which would require us to ignore one statute or the other (see In re White, supra, 1 Cal.3d 207, at p. 212, 81 Cal.Rptr. 780, 460 P.2d 980), and the rule giving precedence to the later statute is invoked only if the two cannot be harmonized. (Rees v. Layton, supra.)

This is not such a case.

Section 4658 may be considered as a general provision establishing the amount of compensation benefits for a permanent disability, and section 4750 may be viewed as a specific rule limiting the benefits available in those cases where the employee has a preexisting permanent disability and thereafter sustains a further permanent injury. When so construed the statutes in question are complementary, not contradictory, and function together quite harmoniously, thus, serving the twin goals of providing proportionately greater benefits for more serious injuries while at the same time protecting employers from bearing a disproportionate share of a financial burden resulting from cumulative injuries. Even assuming, however, that a conflict exists, an equally familiar rule of statutory construction requires the more specific section 4750 to prevail over section 4658, the more general law applicable to the same subject (In re James M. (1973) 9 Cal.3d 517, 522, 108 Cal.Rptr. 89, 510 P.2d 33; Simpson v. Cranston (1961) 56 Cal.2d 63, 69, 13 Cal.Rptr. 668, 362 P.2d 492), and petitioner's recovery must be limited in accord with the provisions of section 4750. . . .

As petitioner correctly observes, under formula A adopted by the Board a worker who suffers a single injury resulting in, for example, a disability rating of 50 percent, will receive greater benefits than one who sustains two successive injuries each of which causes a permanent disability of 25 percent when considered alone. This result, however, is neither unjust nor unfair, petitioner's arguments to the contrary notwithstanding. Rather, it is a consequence of the recent amendments to section 4658 and is consistent with the previously noted policy of encouraging employers to hire the disabled. There being no evidence to the contrary, this court must assume that such a result was contemplated by the Legislature.'

While Fuentes involves a noncompensable and a compensable disability we believe the same considerations of public policy are applicable in the instant case involving two compensable injuries. It is equally important that the employee remain employed after an on-the-job injury as that he become employed after incurring a disability prior to the time of applying for employment. The policy of encouraging the hiring of the disabled should be equally applicable to encouraging the employer to retain the disabled despite his having incurred a disabling injury while on the job.

Our conclusion finds additional support in section 5303, which provides:

‘There is but one cause of action for each injury coming within the provisions of this division. All claims brought for medical expense, disability payments, death benefits, burial expense, liens, or any other matter arising out of such injury may, in the discretion of the appeals board, be joined in the same proceeding at any time; provided, however, that no injury, whether specific or cumulative, shall, for any purpose whatsoever, merge into or form a part of another injury; nor shall any award based on a cumulative injury include disability caused by any specific injury or by any other cumulative injury causing or contributing to the existing disability, need for medical treatment or death.’

In Chavez v. Workmen's Comp. Appeals Bd., 31 Cal.App.3d 5, 106 Cal.Rptr. 853, when considering a question of statute of limitations, this court had occasion to comment at page 14, 106 Cal.Rptr. at page 861 as follows:

‘With these principles in mind, where, under section 4750, an employee who is suffering from a prior permanent disability or physical impairment sustains permanent injury thereafter, the employer shall not be liable for the combined disability, but for only that portion due to the later injury, as though no prior disability or impairment had existed. Under section 5303, the injured employee must file his claim for each separate injury, whether ‘specific’ or ‘cumulative’ within the statutory period provided by either section 5411 or section 5412, as applicable. Under section 5303 as amended, no merging of ‘injuries' is permissible. It prohibits the avoidance of the effect of sections 4750 and 5303 and necessitates that action be taken by the employee within the time limitations provided, whether the ‘injury’ be ‘specific’ or ‘cumulative.” (Fn. omitted.)

(See also Amico v. Workmen's Comp. Appeals Bd., 43 Cal.App.3d 592, 607–608, 117 Cal.Rptr. 831).

The order of the Board is affirmed.


1.  Now Workers' Compensation Appeals Board. (Lab.Code, § 3200.)

2.  We note that on April 17, 1973, it was expressly found in each case that applicant's condition was not yet permanent and stationary.

3.  Section 4750 provided since its amendment in 1945 as follows:‘An employee who is suffering from a previous permanent disability or physical impairment and sustains permanent injury thereafter shall not receive from the employer compensation for the later injury in excess of the compensation allowed for such injury when considered by itself and not in conjunction with or in relation to the previous disability or impairment.The employer shall not be liable for compensation to such an employee for the combined disability, but only for that portion due to the later injury as though no prior disability or impairment had existed.'

ALLPORT, Associate Justice.

FORD, P. J., and POTTER, J., concur.