Subsequent Injuries Fund v. Industrial Acc. Commission

• Decision Date: 19 April 1957
• Citation: 310 P.2d 1,48 Cal.2d 355
• Court: California Supreme Court
• Parties: SUBSEQUENT INJURIES FUND, State of California, Petitioner, v. The INDUSTRIAL ACCIDENT COMMISSION of the State of California and Gust Ericksonet al., Respondents. *

Page 1

310 P.2d 1

48 Cal.2d 355

SUBSEQUENT INJURIES FUND, State of California, Petitioner, v. The INDUSTRIAL ACCIDENT COMMISSION of the State of California and Gust Ericksonet al., Respondents. ^*

Supreme Court of California, In Bank.

April 19, 1957.

Edmund G. Brown, Atty. Gen., Irving H. Perluss, Asst. Atty. Gen., and F. G. Girard, Deputy Atty. Gen., for petitioner.

Everett A. Corten, Daniel C. Murphy, Donald Gallagher, Loton Wells, Leonard, Hanna & Brophy and Ivan A. Schwab, San Francisco, for respondents.

Mullen & Filippi, San Francisco, amicus curiae on behalf of respondents.

SCHAUER, Justice.

Petitioner, State of California Subsequent Injuries Fund, seeks annulment of an award against it made by respondent commission in a proceeding by an employer's insurance carrier to secure, under the provisions of section 5500.5 of the Labor Code, apportionment of liability to an employe who had become permanently totally disabled from silicosis suffered as the result of successive employments. We have concluded that respondent Industrial Accident Commission erroneously applied the section retrospectively, and that the award should be annulled.

The facts appear to be undisputed. The employe, Erickson, was employed as an underground miner over the period 1924-1949 by various metal mining employers; during such periods of employment he was exposed to free silica dust, the cumulative effect of which contributing exposures was to cause the disease of silicosis. This chronology followed:

September 10, 1949. The disease, which constitutes an injury within the meaning of the workmen's compensation law, culminated in disability (total). In the subsequent proceedings the commission found, in accordance with statutory law, that 'said date accordingly constitutes the date of injury herein.' See Lab.Code, § 5412; ¹ Alford v. Industrial Accident Comm., 1946, 28 Cal.2d 198, 203-204, 169 P.2d 641(2).

August, 1950. The employe initiated proceedings bofore the Industrial Accident Commission to obtain an award solely against Central Eureka Mining Company, one of his employers during the period when he was contracting silicosis. ² A few days later respondent State Compensation Insurance Fund, the insurance carrier for the company, was joined as a defendant.

September 22, 1951. Section 5500.5 of the Labor Code became effective, providing, among other things, for reimbursement from the Subsequent Injuries Fund (sometimes hereinafter called the Fund) by means of 'an award in favor of the employer's who has paid the the original award to an employe suffering silicosis resulting from underground metal mining operations, where any of the other employers who have not contributed to such payment are 'without the commission's jurisdiction, or are dead, insolvent, or not subject to enforcement of awards against them for such contributions, either directly or through solvent insurance carriers.' Prior to enactment of this section no such reimbursement provision existed.

September 28, 1951. The commission entered an award in favor of the employe and against State Compensation Insurance Fund (sometimes hereinafter called the carrier) for the entire disability.

April, 1952. The carrier ³ initiated supplemental proceedings before the commission for an apportionment of liability against several named employers and the Subsequent Injuries Fund under section 5500.5 of the Labor Code.

August 13, 1954. The commission entered its findings, order and award in favor of the carrier apportioning liability against some nineteen employers or their insurance carriers, finding that five of the employers and their carriers were 'without the Commission's jurisdiction and * * * (not) subject to the enforcement of any awards for contribution' in this state and charging the Subsequent Injuries Fund with the proportions of liability otherwise chargeable to those five employers.

December 5, 1955. Following petitions for reconsideration, further hearing was had and the commission entered its decision confirming in all material respects the award of August 13, 1954.

Petitioner State of California Subsequent Injuries Fund, as ground for annulment of the award against it, first contends that, contrary to the intention of the Legislature, the commission retrospectively applied the reimbursement provisions of section 5500.5, which did not become effective until more than two years after the date of the employe's injury. The Fund states in its brief that it 'has never contended that section 5500.5 can not be applicable to periods of silicotic exposure occurring prior to the passage of the section. What we do contend is that it cannot be applied to cases where the date of injury (i. e., the date on which the disease culminates in disability) precedes the passage of the section for that is the time that liability under the Workmen's Compensation Act is to be determined.' All parties appear in agreement that the ascertainable legislative intent in enacting the subject section should be the controlling factor on this point and that the section is to be construed with reference to its purpose and the objects intended to be accomplished by it. (See 23 Cal.Jur. 725-727, 764-765.)

Section 5500.5 deals chiefly with claims for compensation benefits made 'on account of an occupational disease which may have arisen out of more than one employment.' The section prescribes the form and content of an application for such benefits; provides for joinder or bringing in of former employers; states that the employe or his dependents may elect to proceed against any one or more of the employers, and that any award shall be joint and several as against any two or more employers held liable; and provides that 'At any time within one year after the commission has made an award' any employer held liable may institute supplemental proceedings before the commission for the purpose of determining an apportionment of liability or right of contribution, but that such proceedings shall not diminish, restrict, or alter in any way the recovery previously allowed the employe or his dependents. The section next provides a follows:

'In any proceeding before the commission for the purpose of determining an apportionment of liability or of a right of contribution where any employee incurred a disability or death resulting from silicosis in underground metal mining operations, the determination of the respective rights and interests of all of the employers joined in the proceedings either initially or supplementally shall be as follows:

'(a) All employers whose underground metal mining operations resulted in a silicotic exposure during the period of the employee's employment in such operations shall be jointly and severally liable for the payment of compensation and of medical, surgical, legal and hospital expense which may be awarded to the employee or his estate or dependents as the result of disability or death resulting from or aggravated by such exposure.

'(b) If any of the employers who have not contributed to payment of the original award shall be without the commission's jurisdiction, or are dead, insolvent, or not subject to enforcement of awards against them for such contributions, either directly or through solvent insurance carriers, then upon such showing being made to the satisfaction of the commission, it shall make an award in favor of the employer or employers who have paid the original award, payable out of the fund used for payment of the additional compensation provided for in Section 4751 ⁴ of this code, in an amount equal to the unreimbursed portions of the original payment or payments to which such employer or employers are found entitled as aforesaid. The use of the fund for such reimbursement in addition to the purposes specified in Section 4751 of this code is hereby authorized. The Legislature finds that as a matter of public policy and public welfare, sufferers from silicosis resulting from employment in underground metal mines should be compensated for such disability; that due to the peculiar nature of this disease it often does not manifest itself until long after periods of exposure have expired; that this frequently results in disability occurring in or after the last of a series of employments where such exposure existed; that underground metal mining is a class of industry having special character, both as to silicotic hazard and investment hazard; that the latter hazard has resulted in the past in closure of mines, disappearance or financial nonresponsibility of former owners or lessees of such mines and consequent inability of the commission to enforce against them compensation awards for proportionate liability in silicosis cases. It is inequitable that total ultimate liability should fall on one or more such employers who happen to be solvent or have solvent insurance carriers within the commission's jurisdiction or in reach of its process. Therefore the Legislature finds that, to the extent that the commission determines that proper contributions to a joint and several award for compensation for silicosis cannot be enforced against an employer who is or was engaged in underground metal mining for any of the above reasons, it shall direct that contribution shall be paid, either directly or by way of reimbursing any employer or employers who have paid said award, by payment from the fund provided for in Section 4751 of this code. Such payments or reimbursement for payments the Legislature finds will protect employees in the metal mining industry and will promote the general public welfare in mining communities. * * *'

The Fund, relying upon Aetna Casualty & Surety Co. v. Industrial Acc. Comm., 1947, 30 Cal.2d 388, 182 P.2d 159, urges that the law in effect at the time of the injury is the law governing all rights and liabilities arising out of the injury. That case dealt with an amendment to section 4661 of the Labor Code, under which amendment...