Myers v. Workmen's Comp. App. Bd.

• Decision Date: 15 December 1969
• Citation: 2 Cal.App.3d 621,83 Cal.Rptr. 427
• Court: California Court of Appeals Court of Appeals
• Parties: Emma J. MYERS. widow of Charles L. Myers, deceased, Petitioner, v. WORKMEN'S COMPENSATION APPEALS BOARD of the State of California and City ofLos Angeles, a municipal corporation, legally uninsured, Respondent. Civ. 9785.

Page 427

83 Cal.Rptr. 427

2 Cal.App.3d 621

Emma J. MYERS. widow of Charles L. Myers, deceased, Petitioner, v. WORKMEN'S COMPENSATION APPEALS BOARD of the State of California and City ofLos Angeles, a municipal corporation, legally uninsured, Respondent.

Civ. 9785.

Court of Appeal, Fourth District, Division 1, California.

Dec. 15, 1969.

Hearing Denied Feb. 11, 1970.

Kenneth Sperry, Long Beach, for petitioner.

Everett A. Corten, San Francisco, and Nathan Mudge, Los Angeles, for respondent, Workmen's Compensation Appeals Bd.

Roger Arnebergh, City Atty., John A. Daly, Asst. City Atty., and Felix E. Smith, Deputy City Atty., for respondent, City of Los Angeles.

OPINION

COUGHLIN, Associate Justice.

Charles Myers, a fireman for the City of Los Angeles, sustained a compensable injury during employment; became disabled February 27, 1954; thereafter was paid full salary in lieu of compensation until his retirement for physical disability on September 7, 1954; filed an application for permanent disability compensation; and on April 28, 1965 received a favorable decision from a referee who, on that date, filed his findings and award decreeing Myers' disability became permanent on retirement and he was entitled to compensation therefor in the sum of $12,000, payable at the rate of $30.00 per week, commencing September 14, 1954 for 400 weeks, and thereafter in the further sum of $18.46 per week for life, together with interest as provided by law. Attorney's fees were fixed at $1250.00. At issue was the contention, rejected by the referee, the City should receive credit for pension payments by it to Myers.

On July 1, 1965 the Industrial Accident Commission granted City's petition for reconsideration, stating:

'This matter involves complex questions of fact and law. The Commission desires to give the matter greater study and is, therefore, granting reconsideration for this purpose.

'For the foregoing reasons:

'IT IS ORDERED that Petition for Reconsideration filed herein by defendant on May 17, 1965 be, and the same hereby is GRANTED.'

Myers died on February 1, 1968.

On May 7, 1968 the Workmen's Compensation Appeals Board, successor in title and authority to the Industrial Accident Commission, without taking further evidence or hearing further arguments, filed its opinion after reconsideration; agreed in all substantial respects with the opinion of the referee making the findings and award on April 28, 1965; but set aside those findings and award; substituted its findings, which on the issue of liability and amount of compensation were identical in form and substance with those of the referee, fixing compensation in the amount found by the referee and denying the City's claim for credit on account of pension payments; also found, on account of the death of Myers, his widow was entitled to the award; and made an award to Emma J. Myers, surviving widow of Charles Myers, of permanent disability indemnity in the amount previously awarded, viz, $12,000, plus $5,508.99, the latter being the sum of $18.46 per week for the period commencing May 15, 1962 and ending February 1, 1968, the date of Myers' death. Attorney's fees were raised to $1500.00. The award also stated: 'Interest as provided by law.'

On November 25, 1968, pursuant to proceedings regularly instituted, a referee filed supplemental findings and an award decreeing payment of interest at the legal rate on compensation awarded, 'payable from April 28, 1965 as to all amounts which by the terms of the Findings and Award of said date were then payable forthwith; and, as to amounts which by the terms of said Findings and Award became due subsequent to the date thereof * * * such interest is payable from the date each such amount became due and payable.' Thereafter, pursuant to appropriate proceedings for reconsideration, the Workmen's Compensation Appeals Board set aside the supplemental findings and award; substituted its findings and award in lieu thereof; and decreed payment of interest on the compensation award payable from May 7, 1968, i.e., the date of its decision following reconsideration.

The statute governing interest on workmen's compensation awards provides:

'All awards of the * * * appeals board either for the payment of compensation or for the payment of death benefits, shall carry interest at the same rate as judgments in civil actions on all due and unpaid payments from the date of the making and filing of said award. Such interest shall run from the date of making and filing of an award, as to amounts which by the terms of the award are payable forthwith. As to amounts which under the terms of the award subsequently become due in installments or otherwise, such interest shall run from the date when each such amount becomes due and payable.' (Lab.Code § 5800.) ¹

The issue for determination is whether the date of the filing of the award by the referee or the date of the filing of the decision by the Board after reconsideration is the date of the award to which Labor Code Section 5800 applies.

Primarily the question is one of interpretation of pertinent provisions of the statute and the action of the Appeals Board on reconsideration. Involved is the application of two well-established principles of law; one is that 'the Workmen's Compensation Act must be liberally construed in the employee's favor' (Lundberg v. Workmen's Comp. App. Bd., 69 Cal.2d 436, 439, 71 Cal.Rptr. 684, 685--686, 445 P.2d 300, 301--302; Jones v. Workmen's Comp. App. Bd., 68 Cal.2d 476, 480, 67 Cal.Rptr. 544, 439 P.2d 648); and the other is that the award of the 'Commission' is 'subject to those general legal principles which circumscribe and regulate the judgments of all judicial tribunals.' (Gouanillou v. Industrial Acc. Comm., 184 Cal. 418, 420--421, 193 P. 937, 938.)

When the referee made and filed his award on April 28, 1965, Labor Code Section 115 provided:

'(E)very finding, order, decision, or award made and filed by any * * * referee * * * is the finding, order, decision, or award of the commission unless reconsideration is had in accordance with the provisions of Article 1, Chapter 7, Part 4, Division 4 of this code',

i.e., Labor Code Section 5900 et seq. The foregoing provision was adopted in 1951. Previously Section 115 provided the findings and award of the referee became the findings and award of the 'Commission' only when approved, confirmed and ordered filed by the 'Commission'. (Stats.1945, p. 2688; Hogeberg v. Industrial Acc. Comm., 201 Cal. 169, 181, 256 P. 413.) It has been said the 1951 amendment delegated to a referee the power to make a final, binding award. (Conference of Referees, etc. v. State Personnel Board, 262 Cal.App.2d 131, 133, 68 Cal.Rptr. 563.) However, both before and after 1951, the actual award in a compensation case was the award of the 'Commission' even though made and filed by a referee. (Lab.Code § 5301; gen. see National Auto. & Cas. Ins. Co. v. Ind. Acc. Comm., 34 Cal.2d 20, 27--29, 206 P.2d 841.) The evident purpose of the 1951 amendment was to make the findings and award of the referee the findings and award of the 'Commission' immediately upon filing by the referee rather than upon subsequent approval.

We conclude the findings and award of the referee made and filed on April 28, 1965 became the findings and award of the 'Commission' on that date. ² In substance, they were the award and findings of the 'Commission' made and filed by the referee.

The issue at hand is the effect of granting City's petition for reconsideration and the Board's subsequent decision on reconsideration upon this award as the basis for the date from which interest runs pursuant to Labor Code Section 5800.

Of particular concern is the effect of the provision of former Labor Code Section 115 that the findings and award made and filed by the referee are the findings and award of the commission: '(U)nless reconsideration is had in accordance with the provisions of Article 1, Chapter 7, Part 4, Division 4 of this code', i.e., the provisions of the code authorizing reconsideration of the findings and award of the referee by the 'Commission'. In the proceedings at bench the Appeals Board and the City contend 'reconsideration is had' when a petition for reconsideration is granted; and upon granting, the findings and decision of the referee cease to be the findings and award of the 'Commission'. Petitioner, Mrs. Myers, contends the clause 'unless reconsideration is had' means unless upon reconsideration by the 'Commission' a different result is reached; and the findings and award of a referee continue to be the findings and award of the 'Commission' until such occurrence.

The effect of the quoted provision of former Labor Code Section 115, and the status of an award made and filed by a referee as the award of the 'Commission' pending further action by the 'Commission' must be determined in light of the statute as a whole.

An award of compensation includes the right to interest thereon from the date of making and filing the award (Lab.Code § 5800); the right to have a judgment upon the award entered in the superior court (Lab.Code § 5806); the right to obtain a judgment lien (Greitz v. Sivachenko, 152 Cal.App.2d 849, 850, 313 P.2d 922); and the right to enforce the judgment by execution. (Gen. see Vickich v. Superior Court, 105 Cal.App. 587, 288 P. 127.)

The following provisions of the statute are pertinent to a consideration of the status of the award of the 'Commission' made and filed by the referee after the filing and granting of a petition for reconsideration:

(The quoted provisions were in effect before the statute was amended in 1965 to change the designation of the 'Commission' to 'Appeals Board', and with this change in designation are in effect at the present time.)

(1) Labor Code Section 5910 provides, upon the filing of a petition for reconsideration the award automatically is suspended for a period of 10 days; and also provides the ...