Tarr v. Industrial Accident Commission

DRAPER, J.

Petitioner seeks annulment of a decision and award of respondent Industrial Accident Commission denying his application for compensation from respondent Subsequent Injuries Fund.

In the course of his employment as a laborer petitioner, in August of 1955, sustained an injury to his right foot. Before this injury, petitioner had lost an eye in a nonindustrial accident, had suffered an industrial injury to his left foot, and

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■ had suffered from a loss of hearing which he does not attribute to his employment. He contended that the 1955 right foot injury resulted in permanent partial disability, and that this disability, combined with the claimed permanent partial disabilities resulting from the previous injury and impairment, amounted to a permanent disability of 70 per cent or more of total, thus entitling him to compensation from the Subsequent Injuries Fund. (Lab. Code, § 4751.)

The referee determined that the 1955 foot injury caused permanent partial disability of 6% per cent, and that this, with the preexisting physical impairment resulting from loss of an eye and from injury to the left foot, resulted in a total combined disability of 50% per cent. The referee refused to consider the hearing loss at all in determining this total combined disability. Findings and award were entered accordingly. Respondent commission denied rehearing, and this petition for writ of review followed.

The sole issue is whether the hearing loss should have been considered in determining the combined disability. The evidence of hearing loss consisted of reports of two medical examinations, one in July, 1957, and one in January, 1958. They show that petitioner’s hearing loss began at least as early as 1948, that at the time of examination it amounted to at least 88.5 per cent, and, in the report of the fund’s examiner, that 90 per cent of this binaural loss occurred before the date of the 1955 foot injury. The doctors agree that the deafness is progressive and that it cannot be alleviated by medical treatment. The fund doctor emphasizes that the deafness will continue to increase.

Respondent fund argues that the deafness is not ratable because it had not become “permanent and stationary” at the time of the 1955 foot injury. It has been pointed out that the word “stationary” is not used in the statute, but has been read into it by commission rule as a means to easy and practical administration.