CALIFORNIA COMPENSATION INSURANCE COMPANY v. INDUSTRIAL ACCIDENT COMMISSION OF CALIFORNIA (1954)

In its petition for rehearing, the Commission has made two significant changes in its position: First, it has receded from its prior contention that the fact Moore received unemployment insurance benefits is completely immaterial in arriving at its award of workmen's compensation benefits. Second, it concedes that although it had previously argued that the compensation law does not provide for a lien in favor of the Department of Employment against temporary partial disability benefits, it has since reevaluated its position in the light of the particular facts of this case. Thus, it now agrees that ‘the employee is not entitled to both the maxim temporary partial disability indemnity and the unemployment insurance benefits for the same period of unemployment,’ but urges for the first time that a lien against the workmen's compensation benefits paid to Moore was allowable to the Department of Employment under section 4903(g) of the Labor Code. It points out that a lien may be allowed on the Commission's own motion in a proper case, Labor Code, § 4905. In order to satisfy the language of section 4903(g), which authorizes a lien to the Department of Employment for benefits paid in a period during which the employee had received workmen's compensation for temporary total disability, the Commission reasons that the facts herein establish that Moore, although found only to be temporarily partially disabled, was in effect an ‘odd-lot’ and was thus entitled to his award of disability benefits ‘as though for temporary total disability.’ Hence, argues the Commission, the Department of Employment had erroneously paid Moore unemployment insurance benefits and was entitled to a lien. We need not here undertake to consider either the validity or implications of this ingenious interpretation of the statute, since the record shows no lien was ever requested by or awarded to, the Department of Employment and the issue was never before this court. Nonetheless, the new position adopted by the Commission serves to emphasize that the award as made cannot stand, and that the cause must be remanded for further proceedings to enable the Commission to make adequate findings of fact and a correct award.

The Commission's new position serves also to buttress our conclusion that its findings, as made, were deficient in failing to find on material facts. If the Commission's theory that the Department of Employment is here entitled to a lien is to prevail (assuming, but without deciding, that it is tenable), findings would be necessary that Moore was, in fact, unavailable for work and that the unemployment insurance benefits paid him were consequently erroneous. But as has been pointed out, the Commission failed to make findings ‘upon all facts involved in the controversy’, Labor Code, § 5313, though it was under a statutory duty to make specific findings on all material issues presented in a claim for compensation. Pierson v. Industrial Acc. Comm., 98 Cal.App.2d 598, 601, 220 P.2d 794; California Shipbuilding Corp. v. Industrial Acc. Comm., 85 Cal.App.2d 435, 436, 193 P.2d 61.

The fallacy of the Commission's contention that the general finding it made necessarily implies that Moore was in the ‘odd-lot’ category is apparent from an examination of that finding, which reads:

‘3. Said injury further caused temporary partial disability beginning October 17, 1953, to and including February 16, 1954, and thereafter, entitling the applicant to compensation on a wage loss basis. For any week or weeks beginning on and after October 17, 1953, and until the termination of temporary partial disability herein or further order of the commission in which week or weeks applicant's earnings fall below $53.85 per week, he is and shall be entitled to compensation consisting of 65 percent of the difference between $53.85 and the amount earned in said week or weeks. Jurisdiction is reserved to find thereon in the event the parties are unable to adjust said matter.’

It can hardly he said that this finding, even by implication, responds to the particular issues posed. It purports only to find that Moore's injury caused a temporary partial disability and then indulges in a conclusion of law as to the amount of the award to which Moore shall be entitled in a week when his ‘earnings fall below $53.85 per week.’ This language is the very opposite of an implication that Moore was an ‘odd-lot’; rather, the finding is pregnant with suggestion that Moore could obtain earnings, although of a fluctuating character. There is therefore no basis for an implication that in any week when Moore was not working or had no earnings it was purely ascribable to the fact that Moore's physical condition was that of an ‘odd-lot’ rather than to the vicissitudes of the industrial market. What the finding does indicate is that the Commission was oblivious to its responsibilities under section 4657 of the Labor Code, which was patently ignored. While that section may be difficult to apply, administrative inconvenience does not excuse compliance with the legislative mandate. Petitioner was entitled to a finding as to the effect of Moore's injury on his probable income or earning ability in accordance with the criteria and formulae therein set out. An award cannot be allowed to stand where there is a failure to find on material issues. General Acc. Fire & Life Assur. Corp., Limited, of Perth, Scotland v. Industrial Acc. Comm., 196 Cal. 179, 191, 237 P. 33; California Casualty Indemnity Exch. v. Industrial Acc. Comm., 190 Cal. 433, 213 P. 257; Pierson v. Industrial Acc. Comm., supra; Moore Shipbuilding Co. v. Industrial Acc. Comm., 70 Cal.App. 495, 233 P. 392.

Because of certain observations made by the Commission in its petition for rehearing, we reiterate, as we have taken pains to emphasize heretofore, that upon remand the Commission is, of course, free to exercise its independent judgment in evaluating the evidence as to the degree of Moore's temporary partial disability and his probable earnings, if any, irrespective of any determination thereof which the Department of Employment may have made.

Rehearing denied.

PER CURIAM.