Opinion
Page __
__ Cal.App.2d __ 316 P.2d 736 22 Cal. Comp. Cases 213 Edward GONZALES, Petitioner, v. INDUSTRIAL ACCIDENT COMMISSION of the State of California, Alfred Klaas and Cleo Klaas, co-partners, dba Klaas Bros., State Compensation Insurance Fund and Subsequent Injuries Fund of the State of California, Respondents. Civ. 22306. California Court of Appeals, Second District, Second Division Oct. 23, 1957Hearing Granted Dec. 17, 1957.
[316 P.2d 737] Levy, Russell & DeRoy, Los Angeles, and Jack P. Koszdin, Beverly Hills, for petitioner.
Everett A. Corten, San Francisco, and Edward A. Sarkisian, Los Angeles, for respondent Industrial Accident Commission.
Edmund G. Brown, Atty. Gen., Irving H. Perluss, Asst. Atty. Gen., and Henry K. Workman, Deputy Atty. Gen., for respondent Subsequent Injuries Fund.
RICHARDS, Justice pro tem.
Petitioner Edward Ganzales seeks annulment of a decision after reconsideration made by respondent Industrial Accident Commission denying him compensation from the Subsequent Injuries Fund of the State of California.
Petitioner is 42 years of age and has been a deaf-mute since he was five years old and is unable to read lips. For a number of years prior to October 18, 1951, he worked as a painter and on that date he sustained an industrial injury to his back. On December 3, 1952, the commission awarded him benefits for a 21 1/2 per cent permanent partial disability for the back injury. Contemporaneously, pursuant to section 4751 of the Labor Code, a separate finding and award was made determining that the industrial injury was superimposed on the preexisting deaf-mutism resulting in a combined disability rating of 80 per cent, and an award was made against the Subsequent Injuries Fund of $7,020 plus a lifetime pension.
Thereafter on March 13, 1956, the Subsequent Injuries Fund filed a petition to reopen which was occasioned by the decision of State of California v. Industrial Acc. Comm., 129 Cal.App.2d 302, 276 P.2d 820. At a hearing held before a referee on May 28, 1956, witnesses experienced in dealing with the adjustment problems of the deaf and the mute testified that congenital or early deaf-mutism is more disabling than deaf-mutism suffered later in life after the subject has learned to speak. Further, that a congenital or early deafmute has greater difficulty in developing the ability to communicate and greater difficulty in learning to read lips which is a major factor in obtaining employment. It was also established that petitioner had continued to work as a painter after recovery from the injury occurring in 1951. Following this hearing the referee issued instructions to the Rating Bureau to apply the rating schedule as of the date of injury for the inability to speak and hear. On August 6, 1956, the referee made an order and award amending the previous findings of December 3, 1952, by increasing the rating for petitioner's combined disability from 80 per cent to 88 per cent in accordance with the recommendation of the Rating Bureau. On August 24, 1956, the Subsequent Injuries Fund of the State of California filed its petition for reconsideration which was granted and the commission instructed the Rating Bureau to rerate petitioner's disability for deaf-mutism on the basis of 50 per cent of the standard rating for loss of speech and for loss of hearing industrially caused. This rerating was made on October 8, 1956, and resulted in a combined rating of 55 3/4 per cent following [316 P.2d 738] which an order of the commission was filed October 10, 1956, that the petitioner take nothing from the Subsequent Injuries Fund. Pursuant to an application of the petitioner, a further hearing was held to permit petitioner to cross-examine the rating expert who testified in substance that he was instructed to issue a rating of 50 per cent of the standard schedule rating for loss of speech and for loss of hearing, that he did not take petitioner's inability to read lips into consideration, that there is no rating for deaf-mutism as such in the rating schedule but only a rating for loss of hearing and loss of speech separately. On January 23, 1957, the commission affirmed its decision of October 10, 1956, that petitioner take nothing from the Subsequent Injuries Fund.
Petitioner contends (1) that the decision of October 10, 1956, having been made without affording him the right to cross-examine the rating expert, was a denial of his constitutional right of due process, (2) that the commission was without jurisdiction to make the order of January 23, 1957, more than five years after the injury, and (3) that the decision of the commission in rating his deaf-mutism at 50 per cent of the standard rating is not sustained by the evidence and is unreasonable and arbitrary.
Denial of Due Process
On October 3, 1956, after granting the petition of the Subsequent Injuries Fund for reconsideration, the commission requested from the Rating Bureau a recommended permanent disability rating on the basis of 50 per cent of the standard rating for loss of speech and loss of hearing. On October 8, 1956, the commission gave notice that the report had been received from the Rating Bureau and that the case would be submitted for decision seven days thereafter unless good cause was shown to the contrary. However, two days later, on October 10, 1956, the commission made its decision after reconsideration rerating the petitioner's combined disability at less than 70 per cent. Labor Code, § 5704, provides that: '[C]opies of all reports and other matters added to the record, otherwise than during the course of an open hearing, shall be served upon the parties to the proceeding, and an opportunity shall be given to produce evidence in explanation or rebuttal thereof before decision is rendered.' Commission Rule, Number 10929, provides: 'After the Permanent Disability Rating Bureau has prepared the recommended rating and the rating specialist has signed it, it shall be returned to the person requesting the recommended rating, who shall thereupon cause it to be served on all interested parties, together with a notice that the case will be submitted for decision seven days after the date of service, unless good cause to the contrary is shown in writing prior thereto.'
It is obvious that in making its decision on October 10, 1956, the commission did not accord the required seven days within which to object to the recommended rating or to request a hearing for the purpose of cross-examining the rating expert. It is well-established that the denial of such right of cross-examination is a denial of due process. Young v. Industrial Acc. Comm., 38 Cal.App.2d 250, 257, 100 P.2d 1062; Pacific Employers Ins. Co. v. Industrial Acc. Comm., 47 Cal.App.2d 713, 715, 118 P.2d 848. However, in the instant matter, the respondent commission granted petitioner's application for reconsideration and he was afforded hearing to cross-examine the rating expert following which the commission reaffirmed its order of October 10, 1956. We conclude that having been afforded the opportunity of cross-examination at the subsequent hearing, there has not been a denial of due process. Walsh v. Industrial Acc. Comm., 1 Cal.2d 747, 748, 36 P.2d 1072.
Excess of Jurisdiction
Relying on Sutton v. Industrial Acc. Comm., 46 Cal.2d 791, 298 P.2d 857, the petitioner contends that the decision after reconsideration made on January 23, 1957, and more than five years after the injury, was in excess of the commission's jurisdiction. The commission has continuing [316 P.2d 739] jurisdiction over its awards and at any time upon notice and opportunity to be heard, it may rescind, alter or amend such award, good cause appearing therefor. Labor Code, § 5803. The power of the commission under this section includes the right to review, diminish, increase or terminate, within the limits of the compensation laws, any compensation awarded upon the grounds that the disability of the person in whose favor the award was made has recurred, increased, diminished or terminated. The continuing jurisdiction of the commission under this section is limited by section 5804 of the Labor Code which reads: 'No award of compensation shall be rescinded, altered, or amended after five years from the date of the injury * * *' The foregoing sections of the Labor Code are parts of Chapter 6, Part 4, Division 4 of the Labor Code and petitions filed thereunder are commonly known and designated as 'Petitions to Reopen.' Here the respondent Subsequent Injuries Fund filed its petition to reopen on March 13, 1956, and on August 6, 1956, an order was made by the referee amending the findings and award, all within five years from the date of the injury.
Section 5900 of the Labor Code provides in substance that any person aggrieved by a final order, decision or award made and filed by a commissioner or referee, may petition the commission for reconsideration in respect to any matters determined or covered thereby. Section 5903 provides that a petition for reconsideration may be filed at any time within 20 days after the service of any final order, decision or award upon any of the grounds respondent Subsequent Injuries Fund filed are parts of Chapter 7, entitled 'Reconsideration And Judicial Review,' of Part 4 of Division 4. In the instant matter the respondent for reconsideration within 20 its petition for reconsideration within 20 days after the referee's amended findings and within five years from the date of injury. This petition for reconsideration was filed pursuant to the provisions of section 5900 and the final order of the commission made on January 23, 1957, which was more than five years from the date of the injury, related solely to the proceedings for reconsideration under Chapter 7. Petitioner's reliance upon the holding in Sutton v. Industrial Acc. Comm., supra, in support of his contention that the commission lost jurisdiction five years after the date of the injury to act upon proceedings for reconsideration is misplaced. That decision expressly points out (46 Cal.2d at page 795, 298 P.2d 857) that sections 5803 and 5804 applied to the proceedings there under consideration and that the five years limitation within which the commission may amend or rescind an award is fixed by section 5804. There are no provisions in Chapter 7 dealing with proceedings for reconsideration and judicial review limiting the time within which the commission may make its decision on reconsideration and in the absence of a statutory limitation none will be implied.
Reasonableness of Decision
The petitioner's final contention is that the commission's decision after reconsideration rating his early deaf-mutism at one-half the standard rating for industrially caused loss of speech and loss of hearing was not sustained by the evidence and was unreasonable and arbitrary. Labor Code, sections 4750-4755, provide a plan for compensation of permanently partially disabled persons who suffer subsequent permanent injuries. The subsequent injuries plan is aptly described in Subsequent Injuries Fund v. Industrial Acc. Comm., 39 Cal.2d 83, at page 85, 244 P.2d 889, 890, as follows: 'The subsequent injuries plan now under consideration was enacted in 1945 (Stats. 1945, ch. 1161) and, as amended, provides in material part as follows: An employer of a workman who has a permanent physical impairment and who thereafter sustains a compensable injury resulting in permanent disability, is not liable for compensation for the ensuing combined disabilities, but only for that portion of permanent disability which is caused by the last injury. (Lab.Code, § 4750.) If an employe [316 P.2d 740] who is permanently partially disabled receives a subsequent compensable injury which results in increased permanent partial disability greater than that caused by the last injury alone, and the combined disabilities are 70 per cent or more of total, he is entitled to receive, in addition to the normal compensation for the last injury, compensation for the remainder of the combined permanent disability. (Lab. Code, § 4751.) The Industrial Accident Commission is to fix and award the amount of the last mentioned special additional compensation, and to direct the State Compensation Insurance Fund to pay it out of funds appropriated for the purpose. (Lab. Code, § 4754.)'
Labor Code, section 4750, provides: 'An employee who is suffering from a previous permanent disability or physical impairment and sustains permanent injury thereafter shall not receive from the employer compensation for the later injury in excess of the compensation allowed for such injury when considered by itself and not in conjunction with or in relation to the previous disability or impairment. The employer shall not be liable for compensation to such an employee for the combined disability, but only for that portion due to the later injury as though no prior disability or impairment had existed.'
Labor Code, section 4751, as in force at the time of petitioner's industrial injury, provides: 'If an employee who is permanently partially disabled receives a subsequent compensable injury resulting in additional permanent partial disability so that the degree of disability caused by the combination of both disabilities is greater than that which would have resulted from the subsequent injury alone, and the combined effect of the last injury and the previous disability or impairment is a permanent disability equal to 70 percent or more of total, he shall be paid in addition to the compensation due under this code for the permanent partial disability caused by the last injury, compensation for the remainder of the combined permanent disability existing after the last injury as provided in this article.'
Dahlbeck v. Industrial Acc. Comm., 135 Cal.App.2d 394, 287 P.2d 353, 355, explains that '[T]he object is to encourage the employment of handicapped workers, thus facilitating their rehabilitation, sustaining their morale, and preventing their becoming public charges due to actual inadequacy of normal compensation awards. (Citations.) The applicable provisions of the code are to be 'liberally construed by the courts with the purpose of extending their benefits for the protection of persons injured in the course of their employment.''
The matters to be considered by the commission in rating permanent injuries are set forth in Labor Code, section 4660, subdivision (a), as follows: 'In determining the percentages of permanent disability, account shall be taken of the nature of the physical injury or disfigurement, the occupation of the injured employee, and his age at the time of such injury, consideration being given to the diminished ability of such injured employee to complete in an open labor market.'
There is nothing in section 4750 or 4751 which suggests that the rating of the previous permanent disability of an employee sustaining a subsequent permanent disability shall be made other than in accordance with the requirements of section 4660.
Subdivision (b) of the same section provides: 'The commission may prepare, adopt, and from time to time amend, a schedule for the determination of the percentage of permanent disabilities in accordance with this section. Such schedule shall be available for public inspection, and without formal introduction in evidence shall be prima facie evidence of the percentage of permanent disability to be attributed to each injury covered by the schedule.'
Pursuant to the foregoing provision the commission adopted its present Permanent Disability Rating Schedule, which, as the statute declares, is prima facie evidence of the percentage of permanent disability.
The basic problem presented here is whether evidence that an early deaf-mute was able to work and did work both before [316 P.2d 741] and after his industrial injury is sufficient to overcome the prima facie evidence of the percentage of permanent disability as established by the schedule and to warrant a 50 per cent reduction in the standard rating for industrially caused loss of speech and hearing where there was uncontradicted opinion evidence that such a deaf-mute's disability was greater than it would have been had he suffered loss of speech and hearing in adult life from an industrial accident and that it is more difficult to place an early deaf-mute in industry than it would be to place a person who had sustained an industrial injury causing loss of speech and hearing in adult life.
The commission's approach to the problem of rating the petitioner's deaf-mutism, as stated in their decision, was that 'The Panel must determine the proportion of the standard rating for loss of speech and for loss of hearing, which should be made attributable to this case since the standard rating is applicable to one who has lost these faculties by industrial injury and would therefore be compelled to start anew and acquire another approach in the matter of communication. Applicant has lived with his condition since he was five years of age and all of his working life has been in that environment.' The assumption that industrially caused deaf-mutism is more disabling than congenital or early deaf-mutism is contrary to the uncontradicted evidence. And it would appear that, in stressing petitioner's habilitation to his handicap, the commission unduly minimized the nature of the handicap itself.
Respondent relies on State of California, etc. v. Industrial Acc. Comm., 129 Cal.App.2d 302, 276 P.2d 820, in support of the decision of the commission. Springer, a congenital deaf-mute, sustained an industrial injury to his left hand. He was 37 years of age at the time of his injury and had worked as a metal finisher for one employer for eight years prior thereto. After his injury he returned to the same job and at the same wage as before his injury. The commission found that his industrially caused permanent injury in combination with his preexisting permanent disability amounted to 82 per cent and he was accordingly awarded permanent disability benefits against Subsequent Injuries Fund. It appeared that his congenital deafness and mutism had been rated pursuant to the commission's schedule the same as if they had been caused by recent industrial trauma. The court pointed out that the prima facie evidence of the percentage of permanent disability under the schedule had been rebutted by other uncontradicted evidence before the commission. In annulling the award, the court said in 129 Cal.App.2d at page 304, 276 P.2d at page 822: 'The patent error of the commission was to rate a congenital condition of deaf-mutism to which the applicant had so far adjusted himself as to be reasonably employable, after the injury as well as before, by the same standard that it would have been rated if the applicant had lost his hearing and speech in the same accident in which he received the injury to his hand. It is obvious that his disability would have been much greater if he had had the normal faculties of speech and hearing up to the time of his accident and had lost them then, with the whole period of adjustment to their loss before him, than it could possibly be with the whole period of adjustment to their lack behind him.'
It appears that in subsequent proceedings in the matter as reported in Springer v. Ford Motor Company, 21 Cal.Comp.Cases 335, evidence was adduced that it was more difficult to place a congenital deaf-mute in industry than it would be to place a person who sustained an industrial loss of hearing and speech in adult life. As a result of the subsequent proceeding, the commission reduced Springer's combined permanent disability rating from 82 per cent to 74 per cent and again awarded him benefits against Subsequent Injuries Fund. The Springer decision must be interpreted in light of the evidence before the court that Springer was less disabled by his congenital handicap than he would have been had he lost his speech and hearing in an industrial accident and while the decision requires that consideration be given to the factor of rehabilitation [316 P.2d 742] we do not construe it as holding that the disability of congenital or early deaf-mutism must in all cases be rated below the standard rating for industrially caused deaf-mutism.
The determination of the percentage of permanent disability is left to the sound discretion of the commission to be exercised in view of all the circumstances (Hines v. Industrial Acc. Comm., 215 Cal. 177, 188, 8 P.2d 1021) or, in other words, the determination of the percentage of disability cannot be made arbitrarily or unreasonably. In view of the uncontradicted opinion evidence herein to the effect that the petitioner's handicap was greater than it would have been if industrially caused it does not appear to us that a 50 per cent reduction in the standard rating was reasonable in view of all the circumstances.
The decision is annulled and the proceeding is remanded to the respondent commission for further proceedings consistent with this opinion.
FOX and ASHBURN, JJ., concur.