McCOMB, J. Petitioner seeks annulment of a decision made by respondent Industrial Accident Commission denying him compensation from the Subsequent Injuries Fund of the State of California.
Facts: Petitioner is 42 years of age. He has been a deaf-mute since he was 5 years old, and he is unable to read lips.
He worked as a painter for a number of years prior to October 18, 1951, when he sustained an industrial injury to his back.
On December 3, 1952, the commission awarded him benefits for a 21½ per cent permanent partial disability for the injury. Contemporaneously, pursuant to section 4751 of the Labor [362]Code, a separate finding and award was made determining that the industrial injury was superimposed on the pre-existing deaf-mutism, resulting in a combined disability rating of 80 per cent, and an award was made against the Subsequent Injuries Fund of $7,020 plus a lifetime pension.
On March 13, 1956, the Subsequent Injuries Fund’s petition to reopen the cause was granted.
On August 6, 1956, after a hearing, a referee made an order and award amending the previous finding of December 3, 1952, by increasing the rating for petitioner’s combined disability from 80 per cent to 88 per cent.
On August 24, 1956, the Subsequent Injuries Fund filed its petition for reconsideration, which was granted, and the commission rerated petitioner’s disability for deaf-mutism on the basis of 50 per cent of the standard rating for loss of speech and loss of hearing industrially caused. This resulted in a combined rating of 55% per cent, following which an order of the commission was filed October 10, 1956, directing that petitioner take nothing from the Subsequent Injuries Fund.
Thereafter, pursuant to petitioner’s application, a further hearing was held to permit petitioner to cross-examine the rating expert, who testified, in substance, that he was instructed to issue a rating of 50 per cent of the standard schedule rating for loss of speech and for loss of hearing; that he did not take into consideration petitioner’s inability to read lips; and that there was no rating for deaf-mutism as such in the rating schedule, but only ratings for loss of hearing and loss of speech separately.
On January 23, 1957, the commission affirmed its decision of October 10, 1956, that petitioner take nothing from the Subsequent Injuries Fund.
Petitioner contends :
First. That the commission’s decision of October 10, 1956, •was made without affording him the right to cross-examine the rating expert and that he was thus denied his constitutional right of dtie process.
This contention is devoid of merit under the facts in the present ease. On October 3, 1956, after granting the petition of the Subsequent Injuries Fund for reconsideration, the commission requested from the rating bureau a recommended permanent disability rating on the basis of 50 per cent of the standard rating for loss of speech and loss of hearing.
On October 8, 1956, the commission gave notice that the report had been received from the rating bureau and that [363]the ease would be submitted for decision seven days thereafter unless good cause was shown to the contrary. However, two days later, on October 10, 1956, the commission made its decision, after reconsideration, rerating petitioner’s combined disability at less than 70 per cent.
Section 5704 of the Labor Code provides: “. . . copies of all reports and other matters added to the record, otherwise than during the course of an open hearing, shall be served upon the parties to the proceeding, and an opportunity shall be given to produce evidence in explanation or rebuttal thereof before decision is rendered.” Commission Rule No. 10929 provides: “After the Permanent Disability Rating Bureau has prepared the recommended rating and the rating specialist has signed it, it shall be returned to the person requesting the recommended rating, who shall thereupon cause it to be served on all interested parties, together with a notice that the case will be submitted for decision seven days after the date of service, unless good cause to the contrary is shown in writing prior thereto.”
In making its decision on October 10, 1956, the commission did not accord petitioner the required seven days within which to object to the recommended rating or to request a hearing for the purpose of cross-examining the rating expert. It is settled that the denial of such a right of cross-examination is a denial of due process. (Pacific Employers Ins. Co. v. Industrial Acc. Com., 47 Cal.App.2d 713, 715 [118 P.2d 848] ; Walker Min. Co. v. Industrial Acc. Com., 35 Cal.App.2d 257, 262 [95 P.2d 188] [hearing denied by the Supreme Court].) However, in the present ease the commission granted petitioner’s application for reconsideration, and he was afforded a hearing to cross-examine the rating expert, following which the commission reaffirmed its order of October 10, 1956. Thus, petitioner, having been afforded an opportunity of cross-examination at the subsequent hearing, was not denied due process in the instant case. (Walsh v. Industrial Acc. Com., 1 Cal.2d 747, 748 [1] [36 P.2d 1072].)
Second. That the commission was without jurisdiction to make the order of January 23, 1957, since more than five years had elapsed after the injury occurred.
This contention is likewise devoid of merit. Section 5804 of the Labor Code provides that no award of compensation shall be rescinded, altered, or amended after five years from the date of the injury. In the instant case, the injury occurred on October 18,1951. The Subsequent Injuries Fund [364]filed its petition to reopen on March 13, 1956, and on August 6, 1956, an order was made by the referee amending the finding and award, all within five years from the date of the injury.
Section 5900 of the Labor Code provides, in substance, that any person aggrieved by a final order, decision, or award made and filed by a commissioner or referee may petition the commission for reconsideration in respect to any matters determined or covered thereby.
Section 5903 of the Labor Code provides that a petition for reconsideration may be filed at any time within 20 days after the service of any final order, decision, or award upon any of the grounds therein specified.
Sections 5900 and 5903 are parts of chapter 7, entitled “Reconsideration and Judicial Review,” of part 4 of division 4.
In the present ease, respondent Subsequent Injuries Fund filed its petition for reconsideration within 20 days after the referee’s amended findings and within five years from the date of injury. This petition for reconsideration was filed pursuant to the provisions of section 5900, and the final order of the commission made on January 23, 1957, which was more than five years from the date of the injury, related solely to the proceedings for reconsideration under chapter 7.
Sutton v. Industrial Acc. Com., 46 Cal.2d 791 [298 P.2d 857], relied on by petitioner, is not here in point. That case expressly points out, at page 795, that sections 5803 and 5804 of the Labor Code applied to the proceedings there under consideration and that the five-year limitation within which the commission may amend or rescind an award is fixed by section 5804 of the Labor Code. There is no provision in chapter 7, dealing with proceedings for reconsideration and judicial review, limiting the time within which the commission may make its decision on reconsideration, and in the absence of a statutory limitation none will be implied.
Third. That the decision of the commission in rating his deaf-mutism at 50 per cent of the standard rating is not sustained by the evidence and is unreasonable and arbitrary.
This contention is untenable.
(1) Findings of the Industrial Accident Commission are not subject to review on the ground that there is no substantial evidence to sustain them, except insofar as it may appear that they have been made without any evidence whatever in their support. (Douglas Aircraft, Inc. v. Industrial Acc. Com., 47 Cal.2d 903, 905 [2] [306 P.2d 425]) .
[365](2) It is error to rate a congenital condition of deafmutism to which petitioner has so far adjusted himself as to be reasonably employable after the injury as well as before by the same standard that it would have been rated if petitioner had lost his hearing and speech in the same accident in which he received the industrial injury. (State v. Industrial Acc. Com., 129 Cal.App.2d 302, 304 [1] [276 P.2d 820] [hearing denied by the Supreme Court].) Petitioner’s disability would have been much greater if he had had the normal faculties of speech and hearing up to the time of the accident and had lost them then, with the whole period of adjustment to their loss before him, than it could possibly have been with the whole period of adjustment to their lack behind him.
In the instant case, the record discloses that petitioner had been a deaf-mute from the age of 5 years and was unable to read lips; that he had learned the painting trade when he was 14; that he had been a prize fighter and an aircraft worker during the war; and that in 1944 he joined the painters’ union and had worked steadily from that time until the accident. It further discloses that since his recovery he has worked as steadily as any other member of the painters’ union.
Therefore, the commission properly reasoned that petitioner had lived with his condition all of his life and that there was no showing that the industrially-caused injury would force him to change his occupation, in which case his congenital deaf-mutism might be a greater handicap.1 The commission thus concluded that since the lowered rating, added to the percentage of total disability resulting from the industrial accident, did not equal the 70 per cent required by section 4751 of the Labor Code,2 petitioner was not entitled to additional benefits from the Subsequent Injuries Fund.
[366]Since the evidence sustains the finding of the commission, under rule (1), supra, such finding is binding upon this court.
In State v. Industrial Acc. Com., supra, a case almost identical in its facts with the present case, an order of the Industrial Accident Commission awarding recovery against the Subsequent Injuries Fund was annulled when the commission, without taking evidence on the question, had applied its rating for industrially-caused deaf-mutism to a case involving congenital deaf-mutism. The court in such ease indicated the correct procedure as that set forth under rule (2), supra. In the present case, the commission, in following this rule, concluded that deaf-mutism did not seriously affect petitioner’s ability to be a painter and that he had adjusted well to his condition. There is thus sufficient evidence in the record to support its finding.
The award is affirmed.
Shenk, J., Schauer, J., and Spence, J., concurred.
For an excellent discussion of the concept of permanent disability under the California plan and the reasoning in support of the variable factors taken into account thereunder, see “Variable Factors in Permanent Disability Bating, With Particular Beferenee to the Inclusion of Age and Occupation," by B. E. Haggard, Supervisor, Permanent Disability Bating Bureau, vol. 2, Appendix to Journal of the Senate, California Begular Session, 1951, page 101 of Partial Beport of Senate Interim Committee to the Senate on Workmen’s Compensation Benefits.
Section 4751 of the Labor Code reads as follows: “If an employee who is permanently partially disabled receives a subsequent compensable injury resulting in additional permanent partial disability so that the degree of disability caused by the combination of both disabilities is greater than that which would have resulted from the subsequent injury alone, and the combined effect of the last injury and the previous dis[366]ability or impairment is a permanent disability equal to 70 percent or more of total, he shall be paid in addition to the compensation due under this code for the permanent partial disability caused by the last injury, compensation for the remainder of the combined permanent disability existing after the last injury as provided in this article; provided, that either (a) the previous disability or impairment affected a hand, an arm, a foot, a leg, or an eye, and the permanent disability resulting from the subsequent injury affects the opposite and eorreaubsequent injury, when considered alone and without regard to the spending member, or (b) the permanent disability resulting from the age of tne employee, is equal to 40 percent or more of total.”