Schlag v. Industrial Accident Commission

WARNE, J. pro tem.* This court, on its own motion, vacated its decision and ordered a rehearing in this case because our opinion rendered May 23, 1958, was materially based upon four decisions of the District Courts of Appeal which were substantially disapproved in the opinion of the Supreme Court filed June 6, 1958, in the ease of Ferguson v. Industrial Acc. Com., 50 Cal.2d 469 [326 P.2d 145]. The holding in that ease requires us to now arrive at a different conclusion.

Petitioner seeks a review and annulment of an order of the Industrial Accident Commission denying him benefits from the Subsequent Injuries Fund.

Petitioner, an iron worker, sustained an injury to his neck [233]arising out of and occurring in the course of his employment. It was determined by the Industrial Accident Commission hereafter referred to as the commission, that he suffered permanent disability from that injury, and he was given a permanent disability rating of 13% per cent. He then sought benefits from the Subsequent Injuries Fund under Labor Code, section 4751, for preexisting disabilities.

At the hearing, petitioner testified that he had the following preexisting disabilities and impairments: A right thumb disability, a left leg disability, a right foot disability, a neck disability, a left foot disability, a right ankle disability, a jaw and chest and heart disability. Some of the disabilities were symptomatic and some were asymptomatic just prior to the industrial injury.

The commission found that the petitioner suffered from multiple preexisting disabilities and physical impairment prior to the industrial injury but that the only one known to the employer was a preexisting disability to the neck. A further finding was that the combined disability resulting from the injury of April 7, 1955, and the known prexisting disability amounted to a permanent disability of 51% per cent, a minimum of 70 per cent disability being required by Labor Code, section 4751, as a condition to an award from the Subsequent Injuries Fund. It was determined and ordered that the petitioner take nothing from the Subsequent Injuries Fund.

Petitioner contended that an employer need only have knowledge of some preexisting partial disability in order to warrant inclusion of all preexisting permanent disabilities and impairments in determining an employee’s eligibility for Subsequent Injuries Fund benefits. On the other hand, the respondents contended that knowledge of the employer of “a” preexisting industrial injury does not warrant inclusion (for determining eligibility of an employee for Fund benefits) of other disabilities and impairments preexisting the industrial injury which were unknown to the employer.