California Casualty Indemnity Exchange v. Industrial Accident Commission

JENNINGS, J. Certiorari to review an award of the Industrial Accident Commission.

Petitioner is the insurance carrier of the employer. Respondent Fred McDonald was employed by McGilvray [748]Raymond Corporation as a quarryman in a rock quarry operated by said corporation at Lakeside, San Diego County. On September 23, 1932, the above-mentioned employee sustained an injury which was caused by a rock falling on his right foot resulting in a fracture of bones. There is no dispute that the injury arose out of and occurred in the course of employment. On November 9, 1932, the injured employee filed an application for adjustment of claim for compensation with the respondent Accident Commission. On December 6, 1932, the application was heard before a referee of the Accident Commission. The referee thereafter made his findings and award, which were approved and confirmed by the Industrial Accident Commission on December 16, 1932. It was found that the injury sustained by the said employee had caused temporary total disability continuing from the date of injury to and including December 6, 1932, and indefinitely, and that he was entitled to an award of $6.41 per week. It was stated that the weekly compensation, which it was found that the employee was entitled to receive, was based on an earning capacity at the time of injury of $45 per month from all sources. An award was accordingly made in his favor for compensation in the above-stated amount. On January 6, 1933, the insurance carrier filed with the Accident Commission a petition for rehearing. This petition was granted and on March 23, 1933, the application came on for rehearing before a referee of the commission. -On April 15, 1933, the Accident Commission filed its decision rescinding the findings and award of December 16, 1932. Findings of fact were made wherein it was found that the injured employee was entitled to compensation of $18.67 per week based upon earnings of $5.50 per day for five and one-half days per week. An award of compensation in the above-mentioned amount was accordingly made. On May 2, 1933, the insurance carrier filed with the commission a petition to reopen the said decision on rehearing. The matter came on for further hearing before the referee of the commission on May 12, 1933. Additional evidence was submitted to the referee and on May 23, 1933, the Accident Commission entered an order denying the petition to reopen its decision. On June 22, 1933, the insurance carrier filed with this court its petition for a writ of certiorari, whereby it seeks a review of the proceedings before the com[749]