Argonaut Insurance v. Industrial Accident Commission

Petitioner seeks annulment of an award of maximum compensation for temporary total disability, together with 10 per cent penalty (Lab. Code, § 5814). Elmer W. Marlar, a construction worker, was injured November 17, 1961. Petitioner, the insurer of his employer, paid him the maximum compensation of $70 per week until January 19, 1962. On that date, the insurer reduced the payments to $47.54 per week. This reduction was made on the basis of Marlar’s return to a questionnaire sent to him by the insurer. The return showed that his earnings at date of injury were at a rate well in excess of the maximum which can be considered under the code (Lab. Code, § 4453). The same is true of his average earnings for 22 weeks preceding injury, and if such average is computed over a period of 37 weeks, it is only slightly below the amount required for a maximum temporary disability award of $70. However, his return showed no employment from November 17, 1960, to March 2, 1961. If his total earnings of $4003.11 are averaged over the 52 weeks preceding injury, they show weekly earnings of $76.98. Computing compensation at 65 per cent (Lab. Code, § 4653) of 95 per cent (Lab. Code, §4453, subd. (d)),…