Gonzales v. Industrial Accident Commission

Petitioner seeks annulment of a decision made by respondent Industrial Accident Commission denying him compensation from the Subsequent Injuries Fund of the State of California.

Facts: Petitioner is 42 years of age. He has been a deaf-mute since he was 5 years old, and he is unable to read lips.

He worked as a painter for a number of years prior to October 18, 1951, when he sustained an industrial injury to his back.

On December 3, 1952, the commission awarded him benefits for a 21½ per cent permanent partial disability for the injury. Contemporaneously, pursuant to section 4751 of the Labor *362 Code, a separate finding and award was made determining that the industrial injury was superimposed on the pre-existing deaf-mutism, resulting in a combined disability rating of 80 per cent, and an award was made against the Subsequent Injuries Fund of $7,020 plus a lifetime pension.

On March 13, 1956, the Subsequent Injuries Fund’s petition to reopen the cause was granted.

On August 6, 1956, after a hearing, a referee made an order and award amending the previous finding of December 3, 1952, by increasing the rating for petitioner’s combined disability from 80 per cent to 88 per…

I dissent.

The majority concludes that there is some evidence to support the commission’s percentage rating of petitioner’s disability. I am constrained to disagree. Moreover, the effect of the majority holding is to defeat the principle that dictates that there be uniformity in awards for the same injury, which principle forms the basis of the theory upon which the rating schedules are based.

The problem in this case is to compute a disability rating for loss of speech and hearing sustained at age 5 on the basis of a rating schedule designed for determining the permanent disability rating of a painter who sustains loss of speech and hearing at age 40.

No intelligent use of such a schedule is possible until a common denominator is established between the rating schedule and the disability to be rated. It is not enough that the *367 disability to be rated and the occupation involved are identical with those appearing in the schedule. The schedule is predicated upon the assumption that the age, injury and claim for compensation are contemporaneous. In this case the claim for compensation, and hence the age, occurs at a time separate from the time of injury. This difference…

McCOMB, J.

Petitioner seeks annulment of a decision made by respondent Industrial Accident Commission denying him compensation from the Subsequent Injuries Fund of the State of California.

Facts : Petitioner is 42 years of age. He has been a deaf-mute since he was 5 years old, and he is unable to read lips.

He worked as a painter for a number of years prior to October 18, 1951, when he sustained an industrial injury to his back.

On December 3, 1952, the commission awarded him benefits for a 21 1/2 per cent permanent partial disability for the injury. Contemporaneously, pursuant to section 4751 of the Labor Code, a separate finding and award was made determining that the industrial injury was superimposed on the pre-existing deaf-mutism, resulting in a combined disability rating of 80 per cent, and an award was made against the Subsequent Injuries Fund of $7,020 plus a lifetime pension.

On March 13, 1956, the Subsequent Injuries Fund's petition to reopen the cause was granted.

On August 6, 1956, after a hearing, a referee made an order and award amending the previous finding of December 3, 1952, by increasing the rating for petitioner's combined disability from 80 per cent to…