Jenkins v. Workmen's Compensation Appeals Board

California Court of Appeal Mar 23, 1973 No. Civ. 31964Published

Before: Good

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Holding. The court held that Labor Code section 3716, which provides for payment of compensation awards from the Uninsured Employers Fund, applies to awards issued after the statute's effective date, regardless of when the underlying injury occurred. The statute is not applied retroactively because the right to payment from the fund arises from the employer's failure to pay an existing award, not from the initial injury.

Issues

Does the application of Labor Code section 3716 to an award for an injury occurring before the statute's effective date constitute an impermissible retroactive application of the law?

Disposition. annulled and remanded

Quotations verified verbatim against the opinion

“The provision does not create a new right having its origin in the initial injury. Rather, the right created is based upon the fact of nonpayment of an obligation already in existence, i.e., the award of compensation.”

“Section 3716 deals with the collection and payment of an award.”

“It follows that, since this right arose after the effective date of section 3716, it cannot be argued that the law is being applied retrospectively.”

[261]

Opinion

GOOD, J.

Petitioner Dude Jenkins sustained an industrial injury on February 19, 1971. His employer, James Thomas, was without workmen’s compensation insurance. During the first five or six weeks following the injury, petitioner’s employer paid him between $75 and $87.50 a week. When these payments terminated, petitioner instituted proceedings against his employer before the Workmen’s Compensation Appeals Board. On March 9, 1972, the board awarded temporary disability at the rate of $65 per week, beginning February 20 and continuing until October 29, 1971. The amount of this award was to be reduced by those amounts already paid by the employer. Thereafter, on April 25, 1972, petitioner, by letter, informed the board that his employer had not made the payments so ordered.

Petitioner’s letter was treated as an application that the award be paid out of the Uninsured Employers Fund, pursuant to Labor Code section 3716, a new section (Stats. 1971, ch. 1598, § 4) that became effective on March 4, 1972. A hearing was held before the board. The board refused payment upon the ground that said code section could apply prospectively only and did not apply to injuries occurring before March 4, 1972. This petition for writ of review followed.

The writ poses the question: Is an employee who is injured prior to the effective date of Labor Code section 3716, but receives an award from the Workmen’s Compensation Appeals Board for that injury subsequent to that date, entitled to receive payment of that award from the Uninsured Employers Fund when the employer thereafter fails to pay the compensation awarded?

The issue is thus whether an order for payment of the award would, in these circumstances, constitute a retroactive application of section 3716 of the Labor Code. Petitioner contends that, regardless of the date on which an industrial injury occurred, the injured employee is entitled to the benefits afforded by the new provision since the findings and award were issued after its effective date. On the other hand, the board contends that the controlling factor is the date of the original injury, and not the date of the award. It relies on

Jenkins v. Workmen's Compensation Appeals Board

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GOOD, J.

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