Healy v. Industrial Acc. Commission

• Decision Date: 28 May 1953
• Citation: 258 P.2d 1,41 Cal.2d 118
• Court: California Supreme Court
• Parties: HEALY v. INDUSTRIAL ACCIDENT COMMISSION et al. L. A. 22605.

Page 1

258 P.2d 1

41 Cal.2d 118

HEALY v. INDUSTRIAL ACCIDENT COMMISSION et al.

L. A. 22605.

Supreme Court of California, in Bank.

May 28, 1953.

Riedman & Silverberg and Milton H. Silverberg, Long Beach, for petitioner.

T. Groezinger, Edmund J. Thomas, Jr., and Edward A. mcDonald, San Francisco, Ray L. Chesebro, City Atty., Bourke Jones and John J. Tully, Jr., Assistant City Attys., Edwin F. Shinn and Weldon L. Weber, Deputy City Attys., Los Angeles, for respondents.

GIBSON, Chief Justice.

Petitioner, Edward Healy, seeks review of an order of the Industrial Accident Commission awarding him workmen's compensation benefits for injuries sustained in the course of his employment as a police officer of the city of Los Angeles. He complains that credits were improperly allowed the city and that he should have been reimbursed for self-obtained medical care.

Healy was seriously injured when the automobile which he was operating collided with a car driven by Albert Becker. The city, which is permissibly uninsured, Labor Code, § 3700, furnished Healy with hospitalization and medical treatment, and he obtained other medical care on his own initiative. He was paid full salary for two years after the accident. He was then retired for disability, and the city commenced to pay him a pension of $283.50 a month. Healy recovered a judgment against Becker under which he received $2,750, and out of this amount he paid $750 to his attorney. On application to the Industrial Accident Commission he was awarded, insofar as relevant here, $7,200 for permanent disability and $18.46 a week for life. The city was allowed credit against this award for the monthly pension payments of $283.50 and for the sum of $2,750 which Healy received under the Becker judgment.

Healy filed a petition for review in the District Court of Appeal which alleged that the award was erroneous and requested leave to file an amendment setting forth the grounds relied upon for review. Leave was granted, and the amendment was filed more than thirty days after the award was made. Thereafter the District Court of Appeal denied the petition, and a hearing was granted by this court. The petition, which was filed within thirty days as required by section 5950 of the Labor Code, was sufficient to confer jurisdiction, and the court had power to permit amendment. Cf. Wennerholm v. Stanford Univ. Sch. of Med., 20 Cal.2d 713, 718, 128 P.2d 522, 141 A.L.R. 1358.

The commission properly determined that the employer was entitled to credit for the full amount which Healy received under the Becker judgment, without deduction for the fee which Healy paid his attorney in that suit. See Lab.Code, §§ 3856, 3858, 3861; cf. Dodds v. Stellar, 30 Cal.2d 496, 502-506, 183 P.2d 658. The judgment was rendered prior to 1949 when the Labor Code sections just cited were amended to provide for the deduction of a reasonable attorney's fee, and the amendments may not be construed retroactively so as to entitle Healy to credit for the cost of legal services. See Record v. Indemnity Ins. Co., 103 Cal.App.2d 434, 438-444, 229 P.2d 851.

There is no merit in Healy's claim that the commission erred in failing to allow him reimbursement for medical care he procured for himself without authorization from the city. Immediately after the happening of the accident petitioner was hospitalized by the city and furnished with medical and surgical treatment. During a period of several years thereafter the city referred him to thirteen different specialists and made the staff and facilities of the hospital available to him. In addition, petitioner consulted four other physicians without authorization from the city and the commission refused to allow reimbursement for the cost of their services. An employee may make his own selection of a physician at the expense of the employer only where the latter has neglected or refused to furnish the necessary medical care. Leadbettor v. Industrial Acc. Comm., 179 Cal. 468, 470, 177 P. 449; Myers v. Industrial Acc. Comm., 191 Cal. 673, 678, 218 P. 11; see Union Iron Works v. Industrial Acc. Comm., 190 Cal. 33, 40 et seq., 210 P. 410. The evidence establishes that Healy was never refused necessary medical treatment.

The principal question raised in this proceeding is whether it was proper for the commission to allow the city credit for the pension payments made to Healy. Section 4909 of the Labor Code ¹ provides that any payment, allowance or compensation received by an injured employee during the period of his incapacity and not then due and payable under the workmen's compensation act may be taken into account by the commission in fixing the amount of compensation to be paid. Section 3751, ² however, prohibits an employer from directly or indirectly taking any contribution from the earnings of...