Herrera v. Workmen's Compensation Appeals Bd.

• Decision Date: 18 June 1969
• Court: California Supreme Court
• Parties: , 455 P.2d 425 Daniel A. HERRERA, Petitioner, v. WORKMEN'S COMPENSATION APPEALS BOARD, Goleta Lemon Association, et al., Respondents. L.A. 29606.

Page 497

78 Cal.Rptr. 497

71 Cal.2d 254, 455 P.2d 425

Daniel A. HERRERA, Petitioner, v. WORKMEN'S COMPENSATION APPEALS BOARD, Goleta Lemon Association, et al., Respondents.

L.A. 29606.

Supreme Court of California In Bank.

June 18, 1969.

Ghitterman, Spielman & Steele and Allan S. Ghitterman, Ventura, for petitioner.

Everett A. Corten, San Francisco, Edward A. Sarkisian, Los Angeles, Rupert A. Pedrin, San Francisco, Nathan Mudge, Los Angeles, T. Groezinger, Loton Wells and G. K. Bogue, San Francisco, for respondents.

McCOMB, Justice.

Petitioner sustained industrial injury on January 5, 1965, while employed by respondent Goleta Lemon Association. Said employer was insured by respondent State Compensation Insurance Fund for workmen's compensation liability. The injury caused disability from September 19, 1966, to November 19, 1966, during which time respondent employer paid petitioner his full salary of $475 per month.

On January 30, 1967, pursuant to proceedings held herein, the trial referee issued Findings and Award, wherein it was found, among other things, that said injury caused temporary total disability from September 19, 1966, through November 19, 1966; and an award was made in favor of petitioner against respondent insurance carrier for reimbursement for self-procured medical treatment, together with temporary disability indemnity in the amount of $567.92.

Thereafter, respondent employer and respondent insurance carrier jointly petitioned for reconsideration, which was granted. They sought reconsideration on the ground that during the two months petitioner was off from work respondent employer paid him his full wages and that in being awarded temporary disability for this period petitioner was, in effect, being awarded a double recovery, which is not permissible under the law.

On September 12, 1967, respondent appeals board vacated the Findings and Award of January 30, 1967, and found that petitioner sustained injury to his right foot arising out of, and in the course of, his employment, but that the injury caused no compensable wage loss. It made an award limiting petitioner's recovery to reimbursement for his self-procured medical treatment.

The reasoning of respondent appeals board, as stated in the opinion of the majority on reconsideration, was that 'when wages are continued even during a period of an employee's temporary total disability, the employee suffers no wage loss. * * *' It was further stated: 'Evidence Code Section 631 states 'Money delivered be one to another is presumed to have been due the latter.' There is nothing in the record to rebut this presumption. Further, common sense dictates that continued salary to an employee even during a period of absence because of disability is not intended merely as a gift.'

A 'disability' under the Workmen's Compensation Law connotes an inability to work. Where an employee has been temporarily disabled by an industrial injury, he is considered temporarily Totally disabled if he is unable to earn any income during the period when he is recovering from the effects of the injury. For such a disability, the employee's disability payments are based on his earning capacity, the statute providing that the payment is 65 per cent of his average weekly earnings. (Lab.Code, § 4653.) An employee is considered temporarily Partially disabled if he is able to earn some income during his healing period but not his full wages. The disability payment in such event is 65 per cent of the employee's weekly wage loss. (Lab.Code, § 4654; cf. Allied Compensation Ins. Co. v. Industrial Acc. Com., 211 Cal.App.2d 821, 831, 27 Cal.Rptr. 918; see California Workmen's Comp. Practice (Cont.Ed. Bar 1963) §§ 16.16, 16.17, p. 499.)

In the present case, petitioner was temporarily totally disabled for a period of two months. He was therefore entitled, during the period of his disability, to 65% Of his average weekly earnings. However, since respondent employer paid him the full amount of his wages while he was disabled, he received substantially larger sums from the employer than the amount of disability payments to which he was entitled.

There was no agreement that any part of the wage payments made to petitioner by respondent employer constituted disability payments. He contends that the wage payments were therefore gratuitous payments and cannot be considered as having been made in satisfaction of the obligation of the employer and respondent insurance carrier to make disability payments.

Under section 4909 of the Labor Code, the allowance of credit for wage payments voluntarily made by an employer with no agreement as to their purpose is within the appeal board's discretion. (See Mercury Aviation Co. v. Industrial Acc. Com., 186 Cal. 375, 378, 199 P. 508.) In the present case, the appeals board in effect found that the payments made by respondent employer to the injured employee constituted nongratuitous wage payments and allowed credit for payments made by respondent employer to the extent indemnity payments were due.

In thus exercising its discretion, the appeals board was following its established policy to allow credit to the employer when wage payments are made to an employee during a period of total disability with no agreement as to their purpose. Such policy is set forth in Stan v. California Golf Club, 8 Cal.Comp. Cases 209, as follows: 'The Commission has held and the courts, without a single exception, have sustained us in the position that, following an industrial injury and during total disability in the absence of an agreement to the contrary, any payments of wages, either in whole or in part, constitutes compensation a least to the extent disability indemnity is payable, and therefore tolls the statute of limitations as against the injured employee.

'* * * 'This policy is definitely in the interest of justice to the injured employee and should not be disturbed. We should not now, Without anything in evidence to indicate that the payment of wages was intended as a gift or gratuity, contend that such payment was not compensation and that the employer or his...