Argonaut Insurance v. Industrial Accident Commission

DRAPER, P. J.—

Petitioner

*

seeks annulment of an award of maximum compensation for temporary total disability, together with 10 per cent penalty (Lab. Code, § 5814). Elmer

[268]

W. Marlar, a construction worker, was injured November 17, 1961. Petitioner, the insurer of his employer, paid him the maximum compensation of $70 per week until January 19, 1962. On that date, the insurer reduced the payments to $47.54 per week. This reduction was made on the basis of Marlar’s return to a questionnaire sent to him by the insurer. The return showed that his earnings at date of injury were at a rate well in excess of the maximum which can be considered under the code (Lab. Code, § 4453). The same is true of his average earnings for 22 weeks preceding injury, and if such average is computed over a period of 37 weeks, it is only slightly below the amount required for a maximum temporary disability award of $70. However, his return showed no employment from November 17, 1960, to March 2, 1961. If his total earnings of $4003.11 are averaged over the 52 weeks preceding injury, they show weekly earnings of $76.98. Computing compensation at 65 per cent (Lab. Code, § 4653) of 95 per cent (Lab. Code, §4453, subd. (d)), of this weekly amount results in the figure of $47.54, the amount paid by petitioner beginning January 19, 1962.

It is apparent that petitioner, to sustain its contention, must argue both that actual earnings are the sole basis for computation of the award, and that weekly earnings are to be computed only by averaging such actual earnings over a full year.

The first of these contentions is untenable. It is clear that the commission “must make its own estimate of weekly earning capacity at the time of the injury,’’ and that actual pay over a period preceding injury is not the sole element to be considered

(Argonaut Ins. Co.

v.

Industrial Acc. Com.,

57 Cal.2d 589, 594 [21 Cal.Rptr. 545, 371 P.2d 281] ; and see

California Compensation & Fire Co.