Pacific Gas & Electric Co. v. Industrial Accident Commission

KAUFMAN, J.

This is a petition for a writ of review in which petitioner Pacific Gas and Electric Company seeks to review an award of the Industrial Accident Commission of 77 per cent permanent disability to its employee, Edwin C. Burton, for an injury sustained in the course of his employment.

On July 6, 1942, Burton was awarded partial permanent disability indemnity against the Associated Indemnity Corporation for permanent disability of 25% per cent arising out of an accident while in the employ of the National Tank and Manufacturing Company. He sustained some loss of motion in his left ankle and foot, and some damage to the lower leg, for which he was compensated for 102 weeks at $13.58 per week.

On January 6, 1951, Burton while employed by Pacific Gas and Electric as a hand pipe wrapper, was knocked down and run over by a backing truck, sustaining fractures of the pelvis, fracture dislocation of the right sacroiliac joint with displacement of the innominate bone and traumatic asphixia with capillary hemorrhages of the upper chest, neck, face and scalp.

On January 2, 1952, Burton filed application for adjustment of claim, and the Subsequent Injuries Fund was joined as a party defendant. At the hearing Burton testified on cross-examination by counsel for the Subsequent Injuries Fund that there was an improvement in his left ankle during the

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10-year period following the ankle injury. The 1951 injury caused a one-inch shortening of the employee’s right leg, as well as other disabilities. The Permanent Disability Rating Specialist recommended a permanent disability rating of 77 per cent attributable solely to the injury of January 6, 1951. Only 5 per cent was added for the preexisting injury (which in 1942 had been rated at 25% per cent), making a combined permanent disability rating of 82 per cent.

Petitioner contends that the commission has no power to award a percentage of permanent disability in excess of 100 per cent to an individual employee, and argues that if the permanent disability rating of 25% per cent is added to 77 per cent the total is 102% per cent. Since the Labor Code refers to total disability as synonymous with 100 per cent, petitioner maintains that it is illogical to assume that an employee could be more than 100 per cent permanently disabled. Section 4658, Labor Code, provides that if the injury causes permanent disability “the percentage of disability to total disability shall be determined and the disability payment computed” according to the schedule set forth in the section.