California Comp. Ins. Co. v. Ind. Acc. Com.

• Decision Date: 17 December 1954
• Citation: 128 Cal.App.2d 797,277 P.2d 442
• Court: California Court of Appeals Court of Appeals
• Parties: CALIFORNIA COMPENSATION INSURANCE COMPANY, a corporation, Petitioner, v. INDUSTRIAL ACCIDENT COMMISSION OF the State of CALIFORNIA, and Badge Moore, Respondents. Civ. 20416.

Page 442

277 P.2d 442

128 Cal.App.2d 797

CALIFORNIA COMPENSATION INSURANCE COMPANY, a corporation, Petitioner, v. INDUSTRIAL ACCIDENT COMMISSION OF the State of CALIFORNIA, and Badge Moore, Respondents.

Civ. 20416.

District Court of Appeal, Second District, Division 2, California.

Dec. 17, 1954.

Kearney, Scott & Clopton, Los Angeles, for petitioner.

Everett A. Corten, San Francisco, and Gordon Winbigler, Los Angeles, for respondents.

PER CURIAM.

In its petition for rehearing, the Commission has made two significant changes in its position: First, it has receded from its prior contention that the fact Moore received unemployment insurance benefits is completely immaterial in arriving at its award of workmen's compensation benefits. Second, it concedes that although it had previously argued that the compensation law does not provide for a lien in favor of the Department of Employment against temporary partial disability benefits, it has since reevaluated its position in the light of the particular facts of this case. Thus, it now agrees that 'the employee is not entitled to both the maxim temporary partial disability indemnity and the unemployment insurance benefits for the same period of unemployment,' but urges for the first time that a lien against the workmen's compensation benefits paid to Moore was allowable to the Department of Employment under section 4903(g) of the Labor Code. It points out that a lien may be allowed on the Commission's own motion in a proper case, Labor Code, § 4905. In order to satisfy the language of section 4903(g), which authorizes a lien to the Department of Employment for benefits paid in a period during which the employee had received workmen's compensation for temporary total disability, the Commission reasons that the facts herein establish that Moore, although found only to be temporarily partially disabled, was in effect an 'odd-lot' and was thus entitled to his award of disability benefits 'as though for temporary total disability.' Hence, argues the Commission, the Department of Employment had erroneously paid Moore unemployment insurance benefits and was entitled to a lien. We need not here undertake to consider either the validity or implications of this ingenious interpretation of the statute, since the record shows no lien was ever requested by or awarded to, the Department of Employment and the issue was never before this court. Nonetheless, the new position adopted by the Commission serves to emphasize that the award as made cannot stand, and that the cause must be remanded for further proceedings to enable the Commission to make adequate findings of fact and a correct award.

The Commission's new position serves also to buttress our conclusion that its findings, as made, were deficient in failing to find on material facts. If the Commission's theory that the Department of Employment is here entitled to a lien is to prevail (assuming, but without deciding, that it is tenable), findings would be necessary that Moore was, in fact, unavailable for work and that the unemployment insurance benefits paid him were consequently erroneous. But as has been pointed out, the Commission failed to make findings 'upon all facts involved in the controversy', Labor Code, § 5313, though it was under a statutory duty to make specific findings on all material issues presented in a claim for...