Colonial Mutual Compensation Insurance v. Industrial Accident Commission

KNIGHT, J. The petitioner, as insurance carrier for John Trolían, seeks to have annulled an order made by the Industrial Accident Commission amending its original findings and award in favor of Prank Miller, who sustained injuries on May 14, 1940, while employed as laborer by Trollan.

The injuries arose out of and in the course of Miller’s employment, and in July, 1940, he filed an application with the commission for the recovery of compensation. The hearing took place before the referee the following month, and on October 23, 1940, the commission, adopting the findings of the referee, awarded disability indemnity from May 22, 1940, to July 16, 1940, at the rate of $8.55 a week, based on wages of $60 a month. On November 18, 1940, Miller petitioned to re-open the proceeding alleging that the amount of the award was based upon an erroneous computation, and that his disability continued after July 16, 1940. The petition to re-open came on for hearing on January 6, 1941, [489]before a second referee; and on March 3, 1941, the commission, confirming the report of the second referee, made an order amending its original findings and award, wherennder Miller was granted compensation at the rate of $20 a week, based on wages of $6.50 a day, working five days a week, from May 22, 1940, to February 5, 1941, and continuing thereafter until termination of disability or further order of the commission, less ten weeks during which Miller worked.

The grounds urged for the annulment of the order relate to the matter of increased compensation; and the first point made in this behalf is that prior to the making of the order the second referee did not read a transcript of the evidence taken before the first referee. Petitioner concedes, however, that all evidence adduced before the first referee as to Miller’s earning capacity was introduced and received at the hearing before the second referee. In other words, as stated in petitioner’s points and authorities (page 16) the amended award was based upon the “same evidence” and the “same facts” as the original award. It is apparent, therefore, that petitioner was in no way prejudiced by the fact that the second referee did not read a transcript of the evidence taken before the first referee, and that to have done so would have been an idle act, which the law does not require (Civil Code, sec. 3532), because the evidence being the same, no different factual situation would have been brought before him. In this regard the state of the record is essentially different from the one presented in Bethlehem Steel Co. v. Industrial Acc. Com., 42 Cal. App. (2d) 192 [108 Pac. (2d) 698], upon which petitioner strongly relies: also the one involved in Deter v. Industrial Acc. Com., 45 Cal. App. (2d) 664 [116 Pac. (2d) 112]. Furthermore, it may be observed that during the lapse of two months the present proceeding remained open before the second referee, petitioner at no time suggested the reading of a transcript of the evidence taken at the first hearing or that the evidence there taken was any different from that produced at the second hearing.