Industrial Indemnity Co. v. Industrial Accident Commission

TRAYNOR, J.

Lewis A. Hicks sustained a back injury in the course of his employment as a crane operator. Industrial Indemnity Company, hereinafter referred to as Industrial, voluntarily furnished medical care and temporary compensation. After substantial treatment Hicks returned to work for his former employer, where he is able to do some, but not all, of the work to which he was assigned before his injury. He suffers from a disability of his left leg and is unable to use it extensively. He is able to operate cranes requiring the use of only one foot for braking (gantry cranes), but is not able to operate other cranes requiring the use of both feet for braking (steam or diesel cranes). The record contains no competent evidence establishing with which of these machines Hicks was predominantly occupied prior to his injury. Hicks has considered the possibility of surgery, but has refused it because of medical advice that his chances of improvement are not great.

Upon his request for compensation he was examined orally before a commission referee. Medical reports were also intro

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duced. It was agreed that his occupation was that of “operating engineer," a classification that was included in the commission’s list of employment categories at that time. That category has recently been eliminated because of its ambiguity. From the evidence introduced, the referee formulated a statement of disability factors and instructed the commission’s Permanent Disability Eating Bureau to rate the disability. The referee instructed the bureau to rate Hicks as an operating engineer. The bureau rated the disability as stated at 50 per cent. The referee summarized the oral evidence in his report to the commission. A further hearing was held for cross-examination of the rating expert, who testified that in rating the disability he had used occupational group 47 (heavy equipment operator) rather than group 50 (gantry crane operator) or group 22 (operating engineer). His reason for substituting group 47 was that he had seen the case file and had thought that Hicks was a heavy equipment operator. The expert also testified that if he had used group 50 or group 22 the recommended rating would have been 46% per cent rather than 50 per cent.

After this hearing, the referee summarized the rating expert’s testimony and included this statement: “It was stipulated Applicant was an operating engineer. No evidence has been submitted which would warrant a change of the occupational designation." Nevertheless, the referee adopted the 50 per cent figure, which was based upon the rating expert’s classification of Hicks as a “heavy equipment operator." The referee then issued his findings and award on June 6, 1961, awarding Hicks a total compensation of $10,500.