Royal Globe Ins. Co. v. Industrial Acc. Commission

• Decision Date: 28 June 1965
• Citation: 45 Cal.Rptr. 1,403 P.2d 129,63 Cal.2d 60
• Court: California Supreme Court
• Parties: , 403 P.2d 129 ROYAL GLOBE INSURANCE COMPANY, Petitioner, v. INDUSTRIAL ACCIDENT COMMISSION, Richard E. Lynch et al., Respondents. S. F. 21940.

Page 1

45 Cal.Rptr. 1

63 Cal.2d 60, 403 P.2d 129

ROYAL GLOBE INSURANCE COMPANY, Petitioner, v. INDUSTRIAL ACCIDENT COMMISSION, Richard E. Lynch et al., Respondents.

S. F. 21940.

Supreme Court of California, In Bank.

June 28, 1965.

Mullen & Filippi and Charles A. Shea, III, San Francisco, for petitioner.

Everett A. Corton, Sheldon C. St. Clair, Loton Wells, James J. Vonk, San Francisco, and David Green, Oakland, for respondents.

PETERS, Justice.

The Royal Globe Insurance Company seeks review of an award of the Industrial Accident Commission on the ground that the commission refused to apportion the award so that petitioner could receive partial reimbursement.

The employee, engaged in delivering bread, began working for San Joaquin Pakeries, Inc., in September of 1951. This employment terminated in June of 1956, when he went to work for Kilpatrick's Bakeries, Inc., where he worked until June 25, 1963. San Joaquin's insurance carrier from September 1951 to January 16, 1954, was State Compensation Insurance Fund. Its carrier for the balance of the period of the worker's employment there was Royal Globe, which also insured Kilpatrick's while the employee was employed there.

During his period of employment for both bakeries, the employee was required to load and unload heavy boxes of bread from a truck. During the four years prior to 1963 he noticed pains in his back. On June 18, 1963, while loading his truck, he suffered a severe back pain which disabled him and caused him to incur medical expenses.

On January 16, 1964, the employee filed two applications with respondent commission, one against San Joaquin and one against Kilpatrick's. The two claims were consolidated for hearing. At the hearing, the referee found that the applicant's disability was attributable to his entire period of employment from September of 1951 to June of 1963. This period amounted to 141 months, during which State Fund was the insurance carrier for the first 28 months and Royal Globe was the carrier for the last 113 months. The referee awarded temporary disability of $70 a week and medical expenses against Royal Globe, and he further ordered that State Fund reimburse Royal Globe 'in the proportion of 28/141sts of the costs thereof.'

Reconsideration was granted on the petition of the State Fund. The panel of the commission, on reconsideration, held that, even though 'applicant's disability is attributable to his entire period of employment,' nevertheless 'temporary disability is not apportionable * * * but is the liability of the carrier at the time applicant became totally disabled.' Thus, Royal Globe was held responsible for all temporary disability and medical costs with no right of reimbursement from State Fund. Royal Globe's petition for reconsideration was denied.

In the case of permanent disability, the commission must apportion between insurance carriers in a situation such as is here involved. (Fireman's Fund Indem. Co. v. Industrial Acc. Comm., 39 Cal.2d 831, 835, 250 P.2d 148; Colonial Ins. Co. v. Industrial Acc. Comm., 29 Cal.2d 79, 86, 172 P.2d 884; Argonaut Ins. Co. v. Industrial Acc. Comm., 231 A.C.A. 136, 142, 41 Cal.Rptr. 628.) Hanna refers to this rule as follows: 'A third type of situation calling for apportionment between employers or insurance carriers has been judicially established. Under this rule, disability of cumulative origin, even though due to pathology other than occupational disease, is not necessarily the sole responsibility of the employment or insurance coverage during which the disability began, but may be charged against all periods of employment (and corresponding coverage) deemed to have contributed to its production. Implicit in this rule is the necessity for apportionment of liability between the responsible employments or insurance carriers. Such an apportionment can apply, of course, to all types of compensation benefits covered by such a liability.' (2 Hanna, Employee Injuries and Workmen's Compensation (1954) p. 271.) In the instant case, the disability was clearly 'of cumulative origin,' inasmuch as the panel found, on unchallenged evidence, that it was attributable to applicant's entire period of employment.

California appellate courts have not yet determined whether, as between carriers, ¹ liability must be apportioned where only temporary disability and medical awards are involved. We recently referred to this vacuum in the law. (Fred Gledhill Chevrolet v. Industrial Acc. Comm., 62 A.C. 45, 49, 41 Cal.Rptr. 170, 396 P.2d 586.) The commission apparently concedes that it may apportion in such cases, and refers to several cases in which it has done so. It contends, however, that its 'general policy of disallowing apportionment of temporary disability and medical benefits' is proper, even if such a general policy would not be proper in permanent disability cases. Several arguments are presented to support this claimed distinction.

It is urged that this general policy 'makes sense' because it presumes that the immediate wage loss and necessity for a healing period were caused solely by the last employment. Based on the expertise of the commission this may be a reasonable presumption, but, at most, it is a rebuttable presumption. Where, as here, there is a finding based on uncontradicted evidence that the disability was attributable to the employee's entire period of employment the proposed presumption has been rebutted, and cannot stand.

The commission also makes another two-pronged argument: first, that the time of the commission should not be consumed by protracted hearings on technical questions of apportionment (citing the constitutional fiat that workmen's compensation legislation should be administered 'expeditiously,' Cal.Const., art. XX, § 21); second, that the injured worker should not have to wait until the termination of such hearings to receive his money. Neither argument is sound. As to the first, in our legal system, we do not avoid difficult questions and arbitrarily impose liability on one party contrary to the facts simply in an effort to save time. As to the second, the employee need not be required to wait until the determination of the apportionment question to receive his award. In permanent disability cases, the proper procedure is to hold the carriers jointly and severally liable to the employee, ² leaving the carriers to debate the apportionment issue in a separate proceeding. 'The successive carriers or employers should properly have the burden of adjusting the share that each should bear and that should be done by them in an independent proceeding between themselves. They are in a...