California Compensation and Fire Co. v. Indus. Acc. Com'n

• Decision Date: 05 January 1962
• Citation: 18 Cal.Rptr. 69
• Court: California Court of Appeals
• Parties: CALIFORNIA COMPENSATION AND FIRE COMPANY, a corporation, Petitioner, v. INDUSTRIAL ACCIDENT COMMISSION of the State of California, and Max S. Colston, Respondents. Civ. 25857.

Page 69

18 Cal.Rptr. 69

CALIFORNIA COMPENSATION AND FIRE COMPANY, a corporation, Petitioner, v. INDUSTRIAL ACCIDENT COMMISSION of the State of California, and Max S. Colston, Respondents.

Civ. 25857.

District Court of Appeal, Second District, Division 3, California.

Jan. 5, 1962.

Hearing Granted Feb. 28, 1962.

Opinion vacated 21 Cal.Rptr. 549, 371 P.2d 285.

Clopton & Penny and Floyd L. Colvin, Los Angeles, for petitioner.

Everett A. Corten, San Francisco, and Edward A. Sarkisian, Los Angeles, for respondent, Industrial Accident Commission.

FRAMPTON, Justice pro tem.

Petitioner, as workmen's compensation insurance carrier for Del Mar Contractors, Inc., seeks annulment of an award of temporary total disability indemnity by respondent Industrial Accident Commission to respondent Max S. Colston.

Respondent Colston sustained an industrially-caused injury to his left foot on January 13, 1961, while employed as a jack hammer driller by Del Mar Contractors, Inc., on a school construction project.

The commission found that Colston's said injury had caused temporary total disability and it awarded payment to him during the continuance of such temporary total disability at the rate of $65 per week, the maximum payment allowable under the provisions of sections 4653 and 4453 of the Labor Code.

The maximum disability award was predicated upon the commission's finding that the employee's earnings had been maximum and its finding on earnings was made pursuant to the provisions of Labor Code, section 4453 subdivision (d), hereafter discussed.

The finding was therefore in effect that the average weekly earnings of the employee had equalled or exceeded $105.26 per week. Average weekly earnings in such amount would be necessary to justify a $65 temporary total disability allowance under Labor Code, section 4653, ¹ after discounting the average weekly earnings by five per cent as directed in subdivision (d) of Labor Code, section 4453, to keep the maximum average weekly earnings from exceeding $100 as specified in other portions of Labor Code, section 4453. ²

The sole question involved is whether the finding of maximum earnings is supported by the evidence. As later discussed, the finding that the employee's earnings were maximum is not supported by the evidence, and the award therefore must be annulled.

The uncontradicted evidence shows that, during the entire year (1960) immediately preceding the injury sustained on January 13, 1961, the employee only had earnings amounting to $760.

When the employee worked during 1960, he worked on construction jobs as a jack hammer driller and sometimes as a general heavy construction laborer.

The employee testified that, during 1960, he was physically able to work and ready and willing to work.

No evidence of economic or employment conditions during 1960 in construction work where a jack hammer driller or heavy construction laborer might be employed appears on the record, other than the employee's unexplained testimony that 1960 was a 'bad year,' and that he was unemployed.

The evidence next shows that he was first employed by Del Mar Contractors on January 3, 1961. It appears that he worked irregularly for said contracting company until he was injured on January 13, 1961. On Tuesday, January 3, 1961, he worked eight hours at $3.08 per hour, receiving $24.64 for such workday; on Thursday, January 5, 1961, he worked four hours at $3.08 per hour, receiving $12.32 for said partial workday; and on Friday, January 6, 1961, he worked eight hours at $3.08 per hour, receiving $24.64 for said workday.

The following week he worked for the employer as follows: Tuesday, January 10, 1961, Wednesday, January 11, 1961, Thursday, January 12, 1961, eight hours on each of said three days at $3.29 per hour, receiving $26.32 for each of said three workdays; and on Friday, January 13, 1961 (the date of injury), he worked four hours at $3.29 per hour, receiving $13.16 for said partial workday.

Summarizing the above, the evidence shows that the employee worked for Del Mar Contractors two eight-hour days and one four-hour day during the first week of 1961; that during the second week of 1961, he worked for said contracting company three eight-hour days and one four-hour day; and that during said period he received total wages amounting to $153.72.

The employee testified that the job on which he was working was the construction of a new elementary school; that the work thereon had started less than a week before he was sent to the job by his union hiring hall; that the pillar construction for the foundation of the new school to be constructed covered an area one block square; and that he understood that the new school building was to be two stories in height, and was to be a wooden frame building reinforced with steel.

The employer listed the employee on its records as a temporary employee. The employee testified however that no one told him he was employed as a temporary employee; and that no statement was made to him one way or the other as to the status or duration of his employment. He further testified that besides working on the job as a jack hammer driller, he had worked on it as a general heavy construction laborer.

Other than such surmise, conjecture or inference which might perhaps be drawn from the employee's testimony that the work to construct a new school had only been started less than a week before he went to work on the job, that the pillar construction for the foundation of the new school building to be constructed covered a square block, and that he understood that the new school building to be constructed was to be of wooden frame construction reinforced with steel and two stories in height, no evidence whatever was presented to or before the respondent commission concerning the building to be constructed nor as to the estimated time which would be required to build such new school building.

Further, no evidence whatever was presented to the commission as to the length of time during which jack hammer drillers or general heavy construction laborers might be needed or employed on the project. As previously noted, the...