Vincent v. Industrial Accident Commission

PEEK, J.

Petitioner seeks review and annulment of an order of the respondent commission awarding him benefits for permanent disability which the referee found to be equal to 26 per cent of total.

His first contention is that the commission did not follow the provisions of Labor Code, section 4660, subdivision (a), in determining his permanent disability rating; that is, it failed to consider the nature of the physical injury, the occupation of the injured employee and his age at the time of injury as regards his diminished ability to compete in an open labor market. His second contention is that the commission did not follow the schedule of percentage ratings adopted for spinal impairment resulting in permanent disability, which schedule provides as follows:

In support of his first contention he argues that the medical report demonstrated additional elements of disability which were not considered, such as taut hamstrings, traumatic arthritis, back pain, ache and fatigue of the limbs, defect in the reflexes and sensory changes, and that no consideration was given to the fact that he would be unable to continue his regular employment in manual labor.

The question presented here is quite similar to one which was before the court in

Liberty Mut. Ins. Co.

v.

In

[681]

dustrial Acc. Com.,

33 Cal.2d 89 [199 P.2d 302], There it was held that the commission “is presumed to have made its decision on all of the evidence.” (P. 92.) Here the medical evidence as well as petitioner’s own testimony posed for determination all of the elements noted by petitioner. In the absence of any showing other than his own statement that the commission failed to consider such evidence, the rule noted in the case above cited must control. Furthermore here, as in that case, the petition for a rehearing before the commission made the same points and argument as are now made, and the petition was denied.

As the respondent commission comments in its answer, the determination referred to in subsection (a) of Labor Code, section 4660, will of necessity be arbitrary to a degree, and no one can determine with nicety exactly how much an injured employee should receive for the permanent loss, or loss of use, of a particular member of his body. This is illustrated by the provisions of section 4662 which provide that except as to certain enumerated cases, the determination and extent of permanent disability shall be determined by the commission “in accordance with the fact.”