California Comp. & Fire Co. v. Industrial Acc. Com.

On October 28, 1960, Glenn M. Stevens, a shingler, fell from a roof and injured his left hip and right heel. The Industrial Accident Commission found that he suffered temporary total disability and that his average weekly earnings were maximum under subdivision (d) of section 4453 of the Labor Code. It awarded him temporary compensation of $65 per week for the duration of the disability.

[1] During January, February, and March of 1960, Stevens was not a competitor on the labor market because of an extended illness. Thereafter, he worked for his employer at the time of injury when there was work available and for three other employers at other times. During the 30 weeks between April 1 and the date of injury, his total earnings from all sources were $1,819.76, an average of $60.65 per week. A maximum award under section 4453 requires a finding of an earning capacity of $100 per week or more. The earning history presented to the referee indicated an earning capacity far short of maximum, even for purposes of a temporary award. (See Argonaut Ins. Co. v. Industrial Acc. Com., ante, p. 589 [ 21 Cal.Rptr. 545 , 371 P.2d 281 ].) Unlike the situation in California Comp. &…