Ray v. Industrial Accident Commission

PEEK, J.

Petitioner seeks review of an award of the Industrial Accident Commission granting respondent-employee Wolgamott additional compensation by reason of the alleged serious and willful misconduct of the petitioner-employer under the provisions of Labor Code, section 4553.

The facts show that on February 16, 1954, Wolgamott, while operating an unguarded table saw sustained an injury admittedly arising out of and in the course of his employment. On January 31, 1955, after negotiation with the respondent insurance carrier, Wolgamott entered into a “Compromise and Release” of claim for the sum of $4,320 which was the exact amount of the advisory disability rating of 36 per cent previously given by the Permanent Disability Rating Bureau. The agreement which was on a form supplied by the Commission provided in part as follows:

“Upon approval of this Compromise agreement by the Industrial Accident Commission and payment in accordance with the provisions hereof, said applicant releases and forever discharges said employer and insurance carrier from all claims and causes of action, whether now known or ascertained, or which may hereafter arise or develop as a result of said injury ...”

The agreement was not signed by the petitioner but only by Wolgamott and Fireman’s Fund, petitioner’s insurance carrier, and was not attested to by two disinterested witnesses -or a notary public as required by Labor Code, section 5003, however, no question in that regard was raised before the commission.

On February 10, 1955, prior to the approval of the compromise agreement by the commission, Wolgamott filed an application for increased compensation under the provisions of section 4553 of the Labor Code. On February 17, 1955, pursuant to a referee’s recommendation, the compromise agreement was approved by the commission and filed. On March 1, 1955, Wolgamott filed an amended application for hearing wherein he specifically charged the violation of safety orders of the Department of Industrial Relations requiring the maintenance of a hood over a circular saw. The answer of the employer (1) denied the allegations of misconduct, (2)

[396]

affirmatively alleged the application was barred by the provisions of section 5407 of the Labor Code and (3) pleaded the compromise and release in bar. The commission found against the employer over his first affirmative defense based on section 5407, but made no finding on his second affirmative defense and concluded that the injury was caused by the serious and willful misconduct of the employer and awarded additional compensation. A petition for reconsideration was granted, but after further consideration the decision was affirmed.