State v. Industrial Accident Commission

VAN DYKE, P. J. This is a proceeding brought in this court to review a “Decision After Reconsideration” rendered by the respondent commission on April 30, 1959. Our writ issued August 5, 1959.

Victor Koski, one of the respondents herein, filed an application with respondent commission on May 21, 1953, seeking workmen’s compensation benefits for an industrial injury suffered through his having contracted the occupational disease of silicosis while engaged in underground metal mining operations. The commission made and entered its findings and award, holding that Koski had contracted the disease while working for numerous employers over a period of time aggregating about 25 years. The commission made its award in his favor solely against the Industrial Indemnity Exchange and Argonaut Mining Company, Ltd., who are respondents herein. The original award became final as to those respondents. They made payments to Koski over the years, and then filed a petition with the commission for an order directing the State of California Subsequent Injuries Fund to repay to them a part of the sums expended and the commission ordered that the Subsequent Injuries Fund, hereinafter called the Fund, repay to them 103/230ths thereof. The Fund applied for reconsideration, which was granted and the decision after reconsideration, here under review, affirmed the previous decision. Thereupon the Fund began this proceeding to review the final order.

The claim of Industrial Indemnity Exchange and Argonaut Mining Company, Ltd., for contribution from the Fund was based upon the provisions of section 5500.5 of the Labor Code as it read when the proceedings for contribution were begun. At that time the section provided that under certain circumstances the fund would be liable for reimbursement payments. After providing that all employers whose underground metal mining operations resulted in a silicotic exposure during the period of the employee’s employment in such operations should be jointly and severally liable for the payment of compensation, the section proceeded as follows:

“If any of the employers who have not contributed to payment of the original award shall be without the commission’s jurisdiction, or are dead, insolvent, or not subject to enforcement of awards against them for such contributions, either directly or through solvent insurance carriers, then upon such showing being made to the satisfaction of the commission, [676]it shall make an award in favor of the employer or employers who have paid the original award, payable ont of the fund used for payment of the additional compensation provided for in Section 4751 of this code, in an amount equal to the unreimbursed portions of the original payment or payments to which such employer or employers are found entitled as aforesaid. The use of the fund for such reimbursement in addition to the purposes specified in Section 4751 of this code is hereby authorized. ’ ’