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MEREDITH v. WORKERS COMPENSATION APPEALS BOARD

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Court of Appeal, Fourth District, Division 2, California.

Richard MEREDITH, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD of the State of California, et al., Respondents.

Civ. 15709.

Decided: July 13, 1976

Richman & Garrett and Lewis Garrett, Los Angeles, for petitioner. T. Groezinger, James J. Vonk, George S. Bjornsen and Richard A. Krimen, San Francisco, for respondent State of California, Dept. of Conservation Resources Agency, Div. of Forestry, and Dept. of Corrections.

OPINION

Petitioner (hereinafter ‘applicant’) seeks review of an opinion and order denying reconsideration by the Workers' Compensation Appeals Board (hereinafter ‘Board’) dated January 9, 1976.

Facts

On April 16, 1974, applicant was a convicted felon committed to the custody of the Department of Corrections. He was assigned to a State of California, Division of Forestry, Department of Conservation Resources Agency, forest conservation camp known as Pilot Rock, in the San Bernardino Mountains.

On April 16, 1974, while felling trees on private property, considered to be a fire danger by the Division of Forestry, he was injured when a tree, in the process of being freed after cutting, fell on him. As a result, applicant is now a paraplegic.

The Workers' Compensation Judge found applicant covered by the Workers' Compensation Act and awarded applicant lifetime disability compensation at the maximum rate ($119 per week). Defendants Department of Corrections and the Division of Forestry, Department of Conservation Resources Agency (hereinafter ‘defendants'), both legally uninsured, petitioned the Board for reconsideration. The Board granted reconsideration and, in an opinion and decision after reconsideration dated November 3, 1975, confirmed the award to applicant of lifetime disability benefits, but fixed the amount thereof at minimum ($35 per week). Applicant then petitioned the Board for reconsideration. On January 9, 1976, the Board issued its opinion and order denying reconsideration.

Contentions

Applicant contends that subdivisions (b) and (c) of Labor Code section 4458 providing respectively that applicant's disability benefits should be set at minimum and that no benefits are payable during the period applicant is confined as a prisoner were impliedly repealed by the 1973 amendment to Labor Code section 4453 and that, if not, said subdivisions of Labor Code section 4458 deny applicant equal protection of laws as guaranteed by the Fourteenth Amendment to the United States Constitution and article I section 11 of the California Constitution.

Discussion and Disposition

Section 2700 of the Penal Code directs the Department of Corrections to require every able-bodied prisoner in any state prison to work for compensation of between 2¢ an hour and 35¢ per hour. It further provides that prisoners performing such labor shall not be considered state employees and shall not be covered by the Workers' Compensation Act. (See also Pen.Code, §§ 2766, 2791, and 3323.)

However, Labor Code section 3365 provides that, notwithstanding sections 2700, 2766 and 2791 of the Penal Code, each person engaged in suppressing a fire at the request of a public officer or employee charged with the duty of preventing or suppressing fires is deemed to be an employee of the public entity he is serving or assisting in fire suppression and is covered by the Workers' Compensation Act.1

Labor Code section 4458, the text of which is set forth in the margin,2 provides in subdivision (a) that if a person engaged in fire suppression within the meaning of Labor Code section 3365 suffers injury, his earnings shall be deemed to be maximum for purposes of temporary and permanent disability benefits irrespective of his actual earnings. Subdivision (b) of the same section provides that if an inmate of a penal or correctional institution who is deemed to be an employee under Labor Code section 3365 is injured, his earnings for purposes of temporary and permanent disability benefits shall be taken as minimum, irrespective of his actual remuneration. Subdivision (c) of the same section provides that an inmate of a state penal or correctional institution who is deemed to be an employee under Labor Code section 3365 is not entitled to receive benefits during the period he is confined and until his parole or release whereupon he is entitled to benefits for the remainder of the benefit period. It is subdivisions (b) and (c) of Labor Code section 4458 that applicant attacks as unconstitutional.

Implied Repealer

Labor Code section 4453 is the code section setting forth the method of computing the amount of average annual earnings for the purposes of temporary and permanent disability indemnity. In 1973 the Legislature amended this section (Stats.1973, ch. 1023, p. 2028, § 2, operative April 1, 1974) to increase the maximum figure for computing average annual earnings for the purposes of temporary disability and total permanent disability indemnity and to change the method of computing average earnings. Applicant's contention that subdivisions (b) and (c) of Labor Code section 4458 were thereby impliedly repealed is devoid of merit.

‘Repeals by implication are not favored, and are recognized only when there is no rational basis for harmonizing two potentially conflicting laws. [Citation omitted.]’ (Fuentes v. Workers' Comp. Appeals Bd., 16 Cal.3d 1, 7, 128 Cal.Rptr. 673, 677, 547 P.2d 449, 453: accord: McNeil v. Kingsbury, 190 Cal. 406, 409, 213 P. 50; People v. Martin, 188 Cal. 281, 285, 205 P. 121.) There is no irreconcilable conflict between Labor Code sections 4453 and 4458. Indeed, in the first paragraph of section 4453, there is an express exception for Labor Code sections 4456 to 4459, which include, of course, section 4458. Moreover, section 4453 is simply a general section providing for the computation of average annual earnings in most situations. Section 4458 is a specific section relating to the computation of average earnings in the case of persons involved in fire suppression. A special statute dealing expressly with the particular subject controls and takes precedence over a general statute covering the same subject. (Fuentes v. Workers' Comp. Appeals Bd., supra, 16 Cal.3d at p. 8, 128 Cal.Rptr. 673, 547 P.2d 449; McNeil v. Kingsbury, supra, 190 Cal. at p. 409, 213 P. 50.)

Equal Protection of Laws

Applicant correctly points out that under Labor Code section 3365 both state prisoners and other persons may be deemed to be public employees while engaged in fire suppression. He urges that Labor Code section 4458 invidiously discriminates against state prisoners in that subdivision (b) requires that their carnings be taken at minimum and subdivision (c) provides that they are not entitled to receive any compensation while incarcerated.

‘[T]he equal protection clause does not require ‘Absolute equality’ (Douglas v. California, supra, 372 U.S. 353, 357, 83 S.Ct. 814, 9 L.Ed. 811 [814], is not ‘a demand that a statute necessarily apply equally to all persons' (Rinaldi v. Yeager (1966) 384 U.S. 305, 309, 86 S.Ct. 1497, 1499, 16 L.Ed.2d 577 [580]) and permits a state to ‘provide for differences so long as the result does not amount to . . . an ‘invidious discrimination.” (Douglas v. California, supra, 372 U.S. at p. 356, 83 S.Ct. at p. 816 [9 L.Ed.2d at p. 814].) Simply stated the ‘concept of the equal protection of the laws compels recognition of the proposition that persons similarly situated with respect to the legitimate purpose of the law receive like treatment.’ (Purdy & Fitzpatrick v. State of California (1969) 71 Cal.2d 566, 578, 79 Cal.Rptr. 77, 85, 456 P.2d 645, 653.)

‘The traditional test has been that the ‘distinction drawn by a challenged statute must bear some rational relationship to a legitimate state end and will be set aside as violative of the Equal Protection Clause only if based on reasons totally unrelated to the pursuit of that goal.’ (McDonald v. Board of Election [Comrs.] (1969) 394 U.S. 802, 809, 89 S.Ct. 1404, 1408, 22 L.Ed.2d 739 [745–746].) But a stricter standard has been prescribed in cases involving ‘suspect classifications' or ‘fundamental interests.’ (Purdy & Fitzpatrick v. State of California, supra, 71 Cal.2d at pp. 578–579, 79 Cal.Rptr. 77, 456 P.2d 645.) In Westbrook v. Mihaly (1970) 2 Cal.3d 765, 784–785, 87 Cal.Rptr. 839, 852, 471 P.2d 487, 500 [the court] had occasion to epitomize the standards to be applied in evaluating classifications under the equal protection clause: ‘As this court has previously noted, [fn. omitted] the United States Supreme Court has tended to employ a two-level test in reviewing legislative classifications under the equal protection clause. In the area of economic regulation, the high count has exercised restraint, investing legislation with a presumption of constitutionality and requiring merely that distinctions drawn by a challenged statute bear some rational relationship to a conceivable legitimate state purpose. (See McDonald v. Board of Election Comrs. (1969) 394 U.S. 802, 809, 89 S.Ct. 1404, 22 L.Ed.2d 739, 745–746; McGowan v. Maryland (1961) 366 U.S. 420, 425–426, 81 S.Ct. 1101, 6 L.Ed.2d 393, 398–399. [Par.] On the other hand, in cases involving ‘suspect classifications' or touching on ‘fundamental interests,’ [fn. omitted] the court has adopted an attitude of active and critical analysis, subjecting the classification to strict scrutiny. (See Shapiro v. Thompson, supra, 394 U.S. 618, 638, 89 S.Ct. 1322, 22 L.Ed.2d 600, 617; Sherbert v. Verner (1963) 374 U.S. 398, 406, 83 S.Ct. 1790, 10 L.Ed.2d 965, 971–972; Skinner v. Oklahoma, ex rel. Williamson, supra, 316 U.S. 535, 541, 62 S.Ct. 1110, 86 L.Ed. 1655, 1660; see also Developments in the Law—Equal Protection (1969) 82 Harv.L.Rev. 1064, 1120–1131.) Under the strict standard applied in such cases, the state bears the burden of establishing not only that it has a compelling interest which justifies the law but that the distinctions drawn by the law are necessary to further its purpose.' (See Castro v. State of California (1970) 2 Cal.3d 223, 234–236, 85 Cal.Rptr. 20, 466 P.2d 244.)' (In re Antazo, 3 Cal.3d 100, 110–111, 89 Cal.Rptr. 255, 261, 473 P.2d 999, 1005; see also Estate of Horman, 5 Cal.3d 62, 75, 95 Cal.Rptr. 433, 485 P.2d 785.)

Applicant urges that distinguishing between state prisoners who are deemed to be public employees under Labor Code section 3365 and other persons who are deemed to be public employees under the same code section creates a ‘suspect classification’ and that the right to receive workers' compensation is a ‘fundamental interest’ and that, therefore, the ‘strict scrutiny’ test is applicable in determining applicant's equal protection challenge.

Not so. ‘No case has held that prisoners comprise a suspect class nor has it been held that the right to receive workmen's compensation is a fundamental interest. Under these circumstances, the strict scrutiny analysis is not applicable to the denial of workmen's compensation prisoners.’ (Granting Workmen's Compensation Benefits to Prison Inmates, 46 So.Cal.L.Rev. 1223, 1251 [fns. omitted]; cf. Mathews v. Workmen's Comp. Appeals Bd., 6 Cal.3d 719, 738–739, 100 Cal.Rptr. 301, 493 P.2d 1165 [applying the rational basis test to a claim of invidious discrimination involving workers' compensation benefits].) ‘In the field of economic regulation equal protection ordinarily requires only that there be a reasonable relationship between the classifications drawn and the purpose for which they are made. (See, e. g., Rinaldi v. Yeager (1969) 384 U.S. 305, 308–309, 86 S.Ct. 1497, 16 L.Ed.2d 577 [579–580]; Dandridge v. Williams (1970) 397 U.S. 471 90 S.Ct. 1153, 1161–1163, 25 L.Ed.2d 491.)’ (Wood v. Public Utilities Commission, 4 Cal.3d 288, 294, 93 Cal.Rptr. 455, 458, 481 P.2d 823, 826; see also Serrano v. Priest, 5 Cal.3d 584, 597, 96 Cal.Rptr. 601, 487 P.2d 1241.)

We presume the state interest in prohibiting compensation to a state prisoner during the period of his incarceration is to conserve the fiscal resources of the state. The distinction between state prisoners and other persons deemed to be public employees under Labor Code section 3365 is rationally related to the presumed state interest. The purpose of the payment of workers' compensation is to permit an injured employee to exist without being a burden to others. (1 Larson, Workmen's Compensation Law (1972) § 2.50; see also 2 Hanna, Cal. Law of Employee Injuries and Workmen's Compensation (2d ed.) § 1.05[5][a].) In the case of a state prisoner, the state is already providing the necessities of life, and there is no need for the payment of compensation so long as incarceration continues. Since there is a rational basis for the distinction between state prisoners and other persons deemed public employees under Labor Code section 3365, we hold that the provisions of subdivision (c) of Labor Code section 4458 disallowing the payment of compensation to a state prisoner during the period of his incarceration are constitutional.

It is otherwise, however, with respect to subdivision (b) of Labor Code section 4458 providing that a state prisoner's compensation be fixed at minimum irrespective of his actual remuneration. Once a prisoner is released or paroled he will enter the general labor market and compete for employment, and we can perceive no rational basis for distinguishing between a disabled state prisoner who has been released or paroled and other persons.

Defendants appear to contend that inasmuch as the state could deny state prisoners workers' compensation benefits entirely, it may grant such benefits on any terms it deems appropriate. In defendants' words: ‘What the Legislature gives, the Legislature may take away.’ Assuming, without deciding, that the state could constitutionally deny state prisoners all workers' compensation coverage (but see Granting Workmen's Compensation Benefits to Prison Inmates, supra, 46 So.Cal.L.Rev. at pp. 1249–1261), it does not follow that it may grant coverage in such a way as to invidiously discriminate against a certain class, here state prisoners. (Cf. Griffin v. Illinois, 351 U.S. 12, 18, 76 S.Ct. 585 [100 L.Ed. 891, 898]; Bulluck v. Washington, 152 U.S.App.D.C. 39, 468 F.2d 1096, 1106 (1972).)

Defendants urge that the provisions of subdivision (b) of Labor Code section 4458 fixing a state prisoner's average earnings at minimum are sound because ‘[i]t is petitioner's employment status on the date of injury that is controlling in computing both his benefits under Workers' Compensation Law and the time those benefits are to be paid and not his status in the future.’ Defendants' assertion is incorrect. The concept of average earnings relates to earning capacity, not necessarily actual earnings. (Goytia v. Workmen's Comp. Appeals Bd., 6 Cal.3d 660, 661–663, 100 Cal.Rptr. 136, 493 P.2d 864; Goytia v. Workmen's Comp. App. Bd., 1 Cal.3d 889, 894–895, 83 Cal.Rptr. 591, 464 P.2d 47; Pascoe v. Workmen's Comp. Appeals Bd., 46 Cal.App.3d 146, 153, 120 Cal.Rptr. 199.) ‘Earning capacity is not locked into a strait-jacket of the actual earnings of the worker at the date of injury; the term contemplates his general over-all capability and productivity; the term envisages a dynamic, not a static, test and cannot be compressed into earnings at a given moment of time.’ (Goytia v. Workmen's Comp. App. Bd., supra, 1 Cal.3d at p. 894, 83 Cal.Rptr. at p. 593, 464 P.2d at p. 49; see also Goytia v. Workmen's Comp. Appeals Bd., supra, 6 Cal.3d at p. 663, 100 Cal.Rptr. 136, 493 P.2d 864; Pascoe v. Workmen's Comp. Appeals Bd., supra, 46 Cal.App.3d at p. 153, 120 Cal.Rptr. 199.)

Obviously, a state prisoner's actual remuneration of between 2¢ an hour and 35¢ an hour (Pen. Code, § 2700) does not accurately establish his average earning capacity. No rational basis has been suggested and we perceive none that would justify fixing a state prisoner's average earnings at minimum when he is employed in fire suppression work and is deemed a public employee pursuant to Labor Code section 3365 when other persons coming within that statute have their average earnings set at maximum. We therefore hold that subdivision (b) of Labor Code section 4458, which so provides, is unconstitutional as denying equal protection of laws.

Although no party argues the point, the question arises whether subdivision (b) of Labor Code section 4458 which we hold unconstitutional is severable from subdivisions (a) and (c) of section 4458. ‘The test of severability is whether the invalid parts of the statute can be severed from the otherwise valid parts without destroying the statutory scheme, or the utility of the remaining provisions.’ (Blumenthal v. Board of Medical Examiners, 57 Cal.2d 228, 238, 18 Cal.Rptr. 501, 506, 368 P.2d 101, 106; People v. Barksdale, 8 Cal.3d 320, 333, 105 Cal.Rptr. 1, 503 P.2d 257; Curtis v. Board of Supervisors, 7 Cal.3d 942, 946, 104 Cal.Rptr. 297, 501 P.2d 537.) Eliminating subdivision (b) does not destroy the legislative scheme. An injured state prisoner deemed to be a public employee pursuant to Labor Code section 3365 will still not receive compensation during the period of his incarceration. When he is released or paroled he will commence receiving compensation for the unexpired period for which he otherwise would have received such compensation. His compensation, however, will be at the maximum rate pursuant to subdivision (a) of Labor Code section 4458 rather then minimum pursuant to subdivision (b). The overriding interest of the Legislature was to encourage fire suppression work by affording workers' compensation benefits to injured firefighters. That legislative objective is promoted by retaining subdivisions (a) and (c) of Labor Code section 4458 rather than invalidating the entire section.

The Board's opinion and order denying reconsideration dated January 9, 1976, is annulled, and the matter is remanded to the Board for further proceedings consistent with this opinion.3

FOOTNOTES

1.  Labor Code section 3365 also provides in pertinent part: ‘A person is engaged in suppressing a fire only during the period he (1) is actually fighting the fire, (2) is being transported to or from the fire, or (3) is engaged in training exercises for fire suppression.’Recognizing that the Workers' Compensation Act must be construed liberally in favor of injured workmen (Lab.Code, § 3202) both the hearing judge and the Board found applicant was ‘engaged in training exercises for fire suppression.’ While we entertain some question of the propriety of that finding, defendants have not sought review and the question is not, therefore, before us.

2.  Labor Code section 4458 provides in pertinent part:‘(a) . . . if a person engaged in fire suppression as described in Section 3365 suffers injury or death while so engaged, then, irrespective of his remuneration from this or other employment or from both, his average weekly earnings for the purposes of determining temporary disability indemnity and permanent disability indemnity shall be taken at the maximum fixed for each, respectively, in Section 4453.‘(b) In the case of an inmate of a penal or correctional institution who is deemed to be an employee under Section 3365, irrespective of his remuneration, his average weekly earnings for the purposes of determining temporary disability indemnity and permanent disability indemnity shall be taken at the minimum fixed for each, respectively, in Section 4453. . . .‘(c) An inmate of a state mental or correctional institution who is deemed to be an employee under Section 3365 is not entitled to receive benefits under this division during the period he is confined in such institution, and the actual period of his confinement after the injury shall be offset against the period for benefits to which he is entitled under this division. Upon parole or release from the state penal or correctional institution, the inmate is entitled to such benefits for the remainder of the benefit period not so offset.’

3.  In its opinion and decision after consideration dated November 3, 1975, after having given notice of its intention to do so (see Beloud, Inc. v. Workers' Comp. Appeals Bd., 50 Cal.App.3d 729, 734, 123 Cal.Rptr. 750) the Board reduced applicant's attorneys' fees from $5,000 to $1,500. Upon remand the Board may reconsider the amount of attorney fees in view of the greater recovery and the additional services rendered in connection with this review proceeding.

KAUFMAN, Associate Justice.

TAMURA, Acting P. J., and FOGG, J,* concur.

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