HAMILTON v. WORKMEN COMPENSATION APPEALS BOARD

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Court of Appeal, Third District, California.

Phillip HAMILTON, Petitioner, v. WORKMEN'S COMPENSATION APPEALS BOARD of the State of California et al., Respondents.

Darrell N. SNYDER, Petitioner, v. WORKMEN'S COMPENSATION APPEALS BOARD and State of California Department of General Services, Respondents.

Robert L. HATRIDGE, Petitioner, v. The WORKMEN'S COMPENSATION APPEALS BOARD of the State of California et al., Respondents.

Civs. 14698, 14708, 14783.

Decided: March 19, 1975

Eugene C. Treaster, Sacramento, for Hamilton. William B. Donohoe and Yale Jones, San Francisco, for Snyder and Hatridge. Thomas J. McBirnie, Jr., and W. C. A. B., San Francisco, for Workmen's Comp. Appeals Bd. Thomas T. Files, Sacramento, for Golden Gate. Robert A. LaPorta, State Compensation Ins. Fund, San Francisco, for State Comp. Ins. Arnold H. Mentz, Daly City, for Sentry Ins.

These consolidated cases all involve a single common issue: the resolution of an apparent conflict between Labor Code section 4658, effective April 1, 1972, and Labor Code section 4750.

All three petitioners are employees who were already partially and permanently disabled at the time of their present injuries. They applied for and received awards for their respective injuries in the proceedings before the Workmen's Compensation Appeals Board. They contend that their awards were incorrectly computed in that the Workmen's Compensation Appeals Board did not give them the full benefits provided by the 1972 amendment to Labor Code section 4658.

The Labor Code formerly provided four weeks of permanent disability compensation for each percentage point of permanent disability. Section 4658 was rewritten in 1971 effective April 1, 1972, to provide a cumulative and progressive scale of benefits according to which the number of benefit payments would increase exponentially with the severity of disability.

The 1973 Legislature made a few revisions to section 4658, effective April 1, 1974, which are not relevant here. However, for the purposes of this opinion, we will use the current section 4658. It now provides that permanent disability payments shall be computed as follows:

The amendment of section 4658 poses a problem when an already partially permanently disabled employee suffers a subsequent injury. Under the old system, he received a flat amount for each percentage point of permanent disability, regardless of the degree of disability. But the new amendment by its terms provides that he is to be compensated at a higher rate for greater disabilities.

Thus, under the old statute, a workman who was 25 percent permanently disabled and who suffered a subsequent injury disabling him an additional 25 percent, for a combined disability of 50 percent, would receive an award for the subsequent injury based upon 25 percent disability computed at a flat four weeks of compensation for each percent of disability. It would not matter whether the number of benefit weeks was based upon the range from one percent to 25 percent disability, or upon the 26 percent to 50 percent range, since the benefit weeks were the same, i. e., a flat four weeks for each percent of disability.

However, under the current section 4658, in matters a great deal from which part of the table the cumulative number of benefit weeks is taken. And since our hypothetical workman is now 50 percent disabled, it would appear that he should be compensated based upon the cumulative benefit weeks from 26 percent to 50 percent disability. But, according to respondents (and the Board has accepted their arguments), Labor Code section 4750 prevents such a result.

Labor Code section 4750 reads 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.’ (Italics ours.)

Applied in isolation, this section would compensate the injured workman as if this were his first injury. (See Hegglin v. Workmen's Comp. App. Bd. (1971) 4 Cal.3d 162, 93 Cal.Rptr. 15, 480 P.2d 967; State Compensation Ins. Fund v. Industrial Acc. Com. (Hutchinson) (1963) 59 Cal.2d 45, 27 Cal.Rptr. 702, 377 P.2d 902.) If section 4750 governs, the previously disabled workman who suffers a subsequent injury must start again at the bottom of the cumulative benefits table when he takes his portion of benefits.

Labor Code section 4663, the ‘apportionment’ section, is also invoked by respondents in support of their position. The section provides: ‘In case of aggravation of any disease existing prior to a compensable injury, compensation shall be allowed only for the proportion of the disability due to the aggravation of such prior disease which is reasonably attributed to the injury.’ (Italics ours.) Under case law, ‘disease’ equates with industrial injury. (Chavez v. Workmen's Comp. Appeals Bd. (1973) 31 Cal.App.3d 5, 106 Cal.Rptr. 853.) However, use of the term ‘aggravation’ implies that the second employer will be liable for compensation on top of that attributable to the prior injury, and is therefore not inconsistent with interpreting section 4658 to require payments based upon the actual disability. In fact, section 4663 may well compel this interpretation of section 4658, at least as to those cases involving aggravation of existing disabilities.

FACTUAL AND PROCEDURAL BACKGROUND

1. The Hamilton Case

Petitioner Phillip Hamilton, a 50-year-old warehouseman, sustained injury on January 18, 1973, while working for the Rice Growers Association. This injury increased his permanent disability from a preexisting 51 percent to a present 61 percent. After a hearing before the Workmen's Compensation Appeals Board, the trial referee on February 1, 1974, awarded compensation based upon the increase in disability from 51 percent to 61 percent (seven weeks of compensation for each of 10 percentage points, or a total of 70 benefit weeks).

On March 15, 1974, the Workmen's Compensation Appeals Board granted the insurance carrier's petition for reconsideration, and on June 19, 1974, vacated the trial referee's determination of the number of weeks of disability to which petitioner was entitled, and recomputed it on the basis of a 10 percent rating standing alone (30.25 benefit weeks).

Petitioner filed a petition for a writ of review under Labor Code section 5950 on July 19, 1974. We granted the writ on August 16, 1974.

2. The Snyder Case

Petitioner Darrell N. Snyder was injured on May 15, 1972, while working as a plumber for the State of California Department of General Services. That injury increased a preexisting 44 percent permanent disability to 88 percent. The trial referee on December 11, 1973, awarded compensation calculated upon the 44 percent rating standing alone (i. e., 204.75 benefit weeks at $70 per week, or the sum of $14,332.50). If the award had been computed upon the increase from 44 percent to 88 percent, the result would have been 320.50 benefit weeks at $70 per week or the sum of $22,435.

At the request of petitioner, and upon the recommendation of the trial referee, the Workmen's Compensation Appeals Board granted a petition for reconsideration on January 18, 1974, but then affirmed the referee's method of computation on June 25, 1974.

Petitioner filed a petition for a writ of review under Labor Code section 5950 on July 24, 1974. We granted the writ on September 6, 1974, and ordered it consolidated with the Hamilton case.

3. The Hatridge Case

Petitioner Robert L. Hatridge was injured on October 20, 1972, while employed as a sheetrock hanger for Drywall Systems, Inc. He had sustained an earlier injury on or about July 1971 while working for the same employer, and both injuries were consolidated for hearing. The trial referee determined that the first injury resulted in permanent disability of eight and three-fourths percent, producing the monetary equivalent of $1,837.50 under the new schedule of benefits in effect after April 1, 1972. The combined permanent disability attributable to the two injuries, after various adjustments, was determined to be 58 percent, leaving 49 percent attributable to the second injury. The referee then computed the award based upon the increase from eight and three-fourths percent to 58 percent disability (297 benefit weeks at $70 per week or $18,952.50).

The Workmen's Compensation Appeals Board granted a petition for reconsideration and reduced the award on August 8, 1974, recomputing the benefits based upon a 49 and one-fourth percent rating standing alone (236.25 benefit weeks at $70 per week for a total of $16,537.50).

Petitioner filed a petition for writ of review on September 6, 1974. We granted the writ on October 4, 1974, and ordered it consolidated with the Hamilton and Snyder cases.

THE SKILLMAN DECISION

The decision of the Workmen's Compensation Appeals Board (WCAB) in each of these cases was based upon its opinion in Skillman v. United Parcel Service, et al. (1973) Case No. 72, Oak. 43148 (summarized at 39 Cal.Comp.Cases 271). In Skillman, a 34-year-old truck mechanic had suffered a 1968 industrial injury and then reinjured his back in August 1972 while holding a battery. A permanent disability rating expert recommended a combined 28 and one-half percent permanent disability rating with one-half thereof being the result of the August 1972 injury. The dispute was over how such percentage was to be reduced to a dollar award.

The Workmen's Compensation Appeals Board adopted the contention of the carrier for the employer that Labor Code sections 4663 and 4750 required that benefits for the second injury be paid as if there were no preexisting disability, that is, based upon the cumulative benefit weeks from one percent to 14 and one-fourth percent disability standing alone.

The Board's reasoning was that it could find nothing in the language of the 1972 amendments to support an argument that the traditional method of computing permanent disability in cases of this nature should be abandoned.

The Board noted that the purpose of Labor Code section 4750 is to encourage employment of the physically disabled by assuring an employer that he will be liable only for that portion of the disability attributable to the subsequent industrial injury. It pointed to the classic example of an employee with only one eye who loses the other. While the loss of one eye warrants a partial permanent disability rating of about 30 percent, the disability of a totally blind person is 100 percent; thus, if the employer is held liable for the combined disability when a one-eyed employee loses his second eye, the employer is likely to adopt a policy of not hiring one-eyed persons.

The Board admitted that an employee who suffers two separate injuries causing combined disabilities of 28 percent may receive less permanent disability indemnity than an employee who has a 28 percent permanent partial disability as the result of a single injury, but indulged in an assumption that the Legislature intended this result, because it failed to amend section 4750 to correct it.

The Board found support for its position in the Subsequent Injuries Fund legislation, Labor Code sections 4751–4755, which ameliorates the hardship imposed by section 4750 where the combined disabilities are more than 70 percent by having the taxpayers of the state make up the difference between the amount for which the employer is liable and the amount warranted by the combined disabilities.

DISCUSSION

The first question is whether section 4658 requires that the award be based upon the higher amount, i. e., based upon the cumulative number of benefit weeks attributable to the combined permanent disability, after deducting therefrom the cumulative number of benefit weeks attributable to the preexisting disability, for which the current employer is not liable.

Enactment of Labor Code section 4658 was preceded by many years of study and a ‘Report of the Workmen's Compensation Study Commission’ dated April 1965. (See Stats.1963, ch. 2040.) In its chapter V on ‘Determining and Rating Permanent Disability’ and under the caption ‘The Concept of Permanent Disability,’ the study commission discusses a concept called ‘the rehabilitation theory,’ which includes a cumulative scale of benefits similar to that in section 4658. Petitioners argue in effect that such a plan was the legislative scheme of section 4658; that the objective of the cumulative allowance is to help the employee through a period of rehabilitation.

Section 4658 manifests legislative recognition that greater disabilities require proportionately longer periods of rehabilitation. It mandates that ‘the number of benefit weeks shall increase with the severity of the disability’, and then declares the exact number of cumulative benefit weeks that it deems sufficient for rehabilitation. The happenstance that a workman's disability is attributable to two separate injuries, rather than one, does not make that workman any less disabled, nor does it diminish the period needed for rehabilitation. We think it inescapable that section 4658 requires that a workman whose combined disabilities total 25 percent be paid for the cumulative number of benefit weeks prescribed by the 25 percent portion of the table, deducting therefrom the cumulative number of benefit weeks attributable to any prior injuries for which the immediate employer is not liable.

We thus face directly the principal issue in this case: the conflict between Labor Code section 4658 which requires an employee to be compensated according to the number of benefit weeks for the actual disability caused by a second injury, and Labor Code section 4750, which requires that the employer be held liable as if this were the first injury.

In resolving this conflict, the WCAB relied principally upon State Compensation Ins. Fund v. Industrial Acc. Com. (Hutchinson), supra, 59 Cal.2d 45, 27 Cal.Rptr. 702, 377 P.2d 902 (28 Cal.Comp.Cases 20). But Hutchinson was decided 9 years before the amendment to section 4658 and two years before the Workmen's Compensation Study Commission Report (supra) and did not involve a conflict between section 4750 and another section of the Labor Code. Moreover, we discern in Hutchinson and the cases upon which it relies, a pattern recognizing the principle of ‘subtraction,’ that is, in computing the amount of the disability attributable to the second injury, the disability attributable to the first injury is subtracted from the combined disability, as we have indicated above.

The issue can be resolved by resort to familiar rules of construction. Where there are two statutes to be construed which irreconcilably conflict, the statute last enacted will prevail over the earlier statute. (Adams v. Superior Court (1970) 8 Cal.App.3d 569, 572, 87 Cal.Rptr. 667; People v. Kuhn (1963) 216 Cal.App.2d 695, 701, 31 Cal.Rptr. 253; Coker v. Superior Court (1945) 70 Cal.App.2d 199, 201, 160 P.2d 885.) We find that there is an irreconcilable conflict between Labor Code sections 4658 and 4750 with regard to subsequent injuries. Since Labor Code section 4658 is the most recent legislation, it must prevail.

More specifically and, we think, dispositive of the issue, is the statutory rule of construction governing all workmen's compensation cases. Labor Code section 3202 provides: ‘The provisions of Division 4 and Division 5 of this code shall be liberally construed by the courts with the purpose of extending their benefits for the protection of persons injured in the course of their employment.’

Thus, if the issue is simply between benefiting the employee or the employer, this section compels a decision ‘extending the benefits' of the employee. (See Leroy T. v. Workmen's Comp. Appeals Bd. (1974) 12 Cal.3d 434, 438, 115 Cal.Rptr. 761, 525 P.2d 665.)

We are therefore compelled by Labor Code section 3202 and the rules of statutory construction above cited to hold that Labor Code section 4658 controls, and that petitioners are entitled to have their awards recomputed without regard to the limitations of Labor Code section 4750.

The proceedings under review are remanded to the Workmen's Compensation Appeals Board, which is hereby ordered to recompute the permanent disability awards consistent with this opinion.

BY THE COURT: