City of Palo Alto v. Industrial Accident Commission

FOLEY, J. pro tem.

*

■— Petitioner-employer, the city of Palo Alto, seeks by its petition for a writ of review to have annulled, vacated and set aside a decision of the respondent, Industrial Accident Commission, awarding respondent-employee, Cedric W. Kidder, permanent disability in the amount of $4,800, less credits.

Kidder was employed by the city of Palo Alto as a fireman. The city is a contract member of the State Employees’ Retirement System, and Kidder was at all times of his employment covered by said retirement system.

In earlier proceedings before the respondent commission in 1954, it was found that Kidder had, on September 20, 1952, sustained an injury arising out of and occurring in the course of his employment. This injury consisted of a reactivation of a preexisting quiescent pulmonary tuberculosis lesion. The commission issued its findings and award in favor of the employee granting him a certain sum per week to continue indefinitely until the further order of the commission. A rehearing was denied and the city paid the sum ordered up to and including August 1, 1958.

On July 23, 1953, the commission, in a proceeding entitled

State Employees’ Retirement System

v.

Kidder Claim Number 146-987,

found that Kidder’s disability “is due to injury arising out of and occurring in the course of the fireman’s employment.” At Kidder’s request he was retired by the system effective March 10, 1953. Since that date he has been entitled to and has been drawing disability retirement benefits under the State Employees’ Retirement Act.

In October 1958 Kidder filed a “Petition for Permanent

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Disability Rating” with respondent commission. Petitioner objected to the jurisdiction of the commission, but his objections were overruled and an award of permanent disability was made in the amount of $4,800 less credit for “any payments made as temporary disability indemnity for periods later than 240 weeks from the date of injury herein. ...” A petition for reconsideration was filed by petitioner with the commission urging that the commission lacked jurisdiction and power to make an award for any permanent disability by reason of the provisions of section 4853 of the Labor Code. The petition for reconsideration was denied on March 25, 1959.