Moyer v. Workmen's Comp. Appeals Bd., S.F. 22990

• Court: United States State Supreme Court (California)
• Writing for the Court: SULLIVAN; WRIGHT; McCOMB
• Citation: 10 Cal.3d 222,110 Cal.Rptr. 144,514 P.2d 1224
• Parties: , 514 P.2d 1224 James M. MOYER, Petitioner, v. WORKMEN'S COMPENSATION APPEALS BOARD and Southern California Edison Company, Respondents.
• Decision Date: 19 October 1973
• Docket Number: S.F. 22990

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110 Cal.Rptr. 144 10 Cal.3d 222, 514 P.2d 1224 James M. MOYER, Petitioner,
v.
WORKMEN'S COMPENSATION APPEALS BOARD and Southern California Edison Company, Respondents. S.F. 22990. Supreme Court of California,
In Bank. Oct. 19, 1973.

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[514 P.2d 1225] [10 Cal.3d 225] Brundage & Roseman and Steven Roseman, Los Angeles, for petitioner.

Franklin Grady, Sheldon C. St. Clair, Thomas J. McBirnie, San Francisco, Grancell, Kegel & Tobin, Sherman Grancell, Stuart J. Liebman, Los Angeles, and Warren L. Hanna, San Francisco, for respondents.

Levy & Van Bourg, Los Angeles and William R. Butler as amici curiae on behalf of Petitioner.

SULLIVAN, Justice.

Petitioner James Moyer seeks review of a decision of respondent Workmen's Compensation Appeals Board (Board) following reconsideration. The Board reversed the referee's decision that petitioner's permanent disability rating be determined as of the date of injury and concluded instead that since petitioner had participated in a rehabilitation program initiated by the employer under section 139.5 of the Labor Code, ¹ [10 Cal.3d 226] his rating must be determined with

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[514 P.2d 1226] reference to his age and occupation at the time such determination is made.

On February 27, 1968, petitioner, while employed as a lineman in Lancaster by respondent Southern California Edison Company (Edison), a permissibly self-insured employer, sustained an industrial injury to his back. ² He underwent surgery and was eventually discharged to resume work upon the condition that his activities not require lifting of weights over 50 pounds. Except for a brief period in August 1968, petitioner did not return to work with Edison until December 1968. Unable to handle the duties of a lineman, he was given the job of meter reader by Edison at substantially less wages.

In March 1969, petitioner suffered another industrial injury which required further back surgery. (see fn. 2, Ante.) Thereafter, Edison attempted to place him in a different occupation. In October 1969, while totally disabled from the subsequent injury, he received a telephone call from an employee of Edision requesting that petitioner submit himself to tests designed to determine his fitness for rehabilitation in a new occupation. He completed a series of written tests and in February 1970, attended an eight-day [10 Cal.3d 227] training program in Long Beach in order to learn the skills of an assistant in computer programming. ³

Upon the conclusion of his training program, petitioner continued working for Edison in Long Beach and received compensation for lodging and meals during a 90-day probationary period. At the end of this period, he moved to Long Beach, his new place of employment. He was reimbursed by Edison for his moving expenses. His wages as an assistant in computer programming, though substantially less than what he had received as a lineman, were slightly more than his wages as a meter reader.

The evidence is undisputed that although petitioner was advised that he was to be trained in a new occupation he was not informed by Edison, nor was he aware at any time prior to commencement of the training program, that his permanent disability rating for injuries suffered on February 27, 1968, would be determined with reference to his age and occupation After rehabilitation rather than as of the date of injury.

Petitioner filed with the Board an application for adjustment of claim and after a hearing was awarded a permanent disability indemnity of $4,200 based on a rating, after apportionment, of 20 percent. He contended, among other things, that within the meaning of section 139.5, he had not voluntarily accepted a rehabilitation program because he had not been informed by Edison, nor was he aware, that his participation

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[514 P.2d 1227] in Edison's rehabilitation program required that he be permanently rated on his age and occupation at the date of the rating, rather than at the date of his injury. The referee, agreeing with petitioner, stated, 'There is no evidence that the applicant agreed to the rehabilitation program in accordance with Labor Code Section 139.5. It is therefore inapplicable (in determining petitioner's disability rating).' ⁴

[10 Cal.3d 228] Upon reconsideration, the Board, relying on one of its unreported opinions which held that section 139.5 does not require an employee to be given notice of the possibility of a reduced rating after rehabilitation, ⁵ reversed the referee's decision and directed that petitioner's permanent disability rating be ascertained with reference to his new occupation as an assistant in computer programming and to his age at the time of the rating. The Board also rejected petitioner's argument that a reduction of disability benefits, without prior notice and a hearing, constituted a violation of procedural due process. Petitioner was awarded a permanent disability indemnity of $1,942.50 based on a rating after apportionment, of 9 1/4 percent.

Petitioner filed the instant petition for writ of review seeking to annul the Board's decision. His somewhat overlapping contentions may be summarized as follows: (1) That petitioner did not voluntarily accept Edison's rehabilitation program since he was not apprised that his retraining would result in a different or lesser rating and that he had an election to participate in the rehabilitation and take a lesser sum or to not participate and receive his regular and higher rating; and (2) that if section 139.5 should be allowed to take effect when the employer has not informed the employee [10 Cal.3d 229] that he will receive a lesser rating as a result of participating in

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[514 P.2d 1228] the employer's rehabilitation program, the section will violate the due process clauses of the United States Constitution and of the California Constitution and will also violate section 3202.

Petitioner asserts that section 139.5 is inapplicable because he was not aware that his acceptance of rehabilitation would result in a reduced permanent disability rating. Focusing on the last paragraph of section 139.5 (see fn. 1, Ante), which provides that 'acceptance' of a rehabilitation program 'shall be voluntary and not be compulsory on the . . . injured workman,' petitioner asserts that a voluntary acceptance can occur only if sucy action is taken with full knowledge of its consequences. Because he was not aware of that completion of the training program as an assistant in computer programming would affect his disability rating, petitioner contends that his apparent assent to undertaking vocational training did not constitute a voluntary acceptance of a rehabilitation program under section 139.5.

Edison on the other hand argues that the term 'voluntary' refers only to freedom from compulsion and that it 'simply means that an employee cannot be compelled to participate in a rehabilitation program which trains him for a position or type of work which he feels he would not enjoy.' Pointing to a lack of evidence that petitioner was compelled to enter the training program, Edison contends that petitioner's disability rating must be ascertained in accordance with the provisions of section 139.5. Additionally, Edison argues that the section does not expressly require that notice of the consequences of rehabilitation on disability ratings be given an employee and that to require such notice would discourage injured employees from undertaking rehabilitation, thereby defeating the purpose of the statute.

The pivotal which we face is this: Must the employee before accepting the employer's rehabilitation program be aware of the consequences of his doing so in order for his acceptance to be deemed voluntary? Essentially our task is to interpret the provision of section 139.5 that 'acceptance (of a rehabilitation program) shall be voluntary and not be compulsory' and more particularly to determine the meaning of the word 'voluntary' in the context of that provision. In carrying out this task we 'must, however, presume that the Legislature intended to enact a valid statute; we must, in applying the provision, adopt an interpretation that, consistent with the statutory language and purpose, eliminates doubts as to the provision's constitutionality. (Citations.)' (In re Kay (1970) 1 Cal.3d 930, 942, 83 Cal.Rptr. 686, 694, 464 P.2d 142, 150; see also San Francisco Unified School Dist. v. Johnson (1971) 3 Cal.3d 937, 948, 92 Cal.Rptr. 309, 479 P.2d 669, cert. denied, Fehlhaber v. San Francisco [10 Cal.3d 230] Unified School Dist., 401 U.S. 1012, 91 S.Ct. 1266, 28 L.Ed.2d 549; Erlich v. Municipal Court (1961) 55 Cal.2d 553, 558, 11 Cal.Rptr. 758, 360 P.2d 334.) As will appear, in accordance with this principle, we interpret the word 'voluntary' to mean that the employee's acceptance of rehabilitation must be with his knowledge of the consequences. We therefore need not discuss the constitutional issues raised by petitioner. We also reject at the start as without merit petitioner's claim that the provision under examination conflicts with section 3202. ⁶

We begin with the fundamental rule that a court 'should ascertain the intent of the Legislature so as to effectuate the purpose of the law.' (Select Base Materials v. Board of Equal. (1959) 51 Cal.2d 640, 645, 335 P.2d 672, 675.) In determining such intent '(t)he court turns first to

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[514 P.2d 1229] the words themselves the the answer.' (People v. Knowles (1950) 35 Cal.2d 175, 182, 217 P.2d 1, 5, cert. denied, 340 U.S. 879, 71 S.Ct. 117, 95 L.Ed. 639.) We are required to give effect to statutes 'according to the usual, ordinary import of the language employed in framing then.' (In re Alpine (1928) 203 Cal. 731, 737, 265 P. 947, 949; see also Merrill v. Department of Motor Vehicles (1969) 71 Cal.2d 907, 918, 80 Cal.Rptr. 89, 458 P.2d 33; Chavez v. Sargent (1959) 52 Cal.2d 162, 203, 339 P.2d 801; disapproved on another ground in Petri Cleaners, Inc. v....