Opinion
Hearing Granted Feb. 28, 1962.
Opinion vacated 21 Cal.Rptr. 549, 371 P.2d 285.
Clopton & Penny and Floyd L. Colvin, Los Angeles, for petitioner.
Everett A. Corten, San Francisco, and Edward A. Sarkisian, Los Angeles, for respondent, Industrial Accident Commission.
FRAMPTON, Justice pro tem.
Petitioner, as workmen's compensation insurance carrier for Del Mar Contractors, Inc., seeks annulment of an award of temporary total disability indemnity by respondent Industrial Accident Commission to respondent Max S. Colston.
Respondent Colston sustained an industrially-caused injury to his left foot on January 13, 1961, while employed as a jack hammer driller by Del Mar Contractors, Inc., on a school construction project.
The commission found that Colston's said injury had caused temporary total disability and it awarded payment to him during the continuance of such temporary total disability at the rate of $65 per week, the maximum payment allowable under the provisions of sections 4653 and 4453 of the Labor Code.
The maximum disability award was predicated upon the commission's finding that the employee's earnings had been maximum and its finding on earnings was made pursuant to the provisions of Labor Code, section 4453 subdivision (d), hereafter discussed. The finding was therefore in effect that the average weekly earnings of the employee had equalled or exceeded $105.26 per week. Average weekly earnings in such amount would be necessary to justify a $65 temporary total disability allowance under Labor Code, section 4653, after discounting the average weekly earnings by five per cent as directed in subdivision (d) of Labor Code, section 4453, to keep the maximum average weekly earnings from exceeding $100 as specified in other portions of Labor Code, section 4453.
Labor Code, section 4653, provides in substance that, if the injury causes temporary total disability, the disability payment is 65 per cent of the average weekly earnings.
Taking 95 per cent of $105.26 as specified in subdivision (d) of Labor Code, section 4453, the average weekly earnings would amount to $100 (the maximum which can be considered under Labor Code, section 4453), and 65 per cent of $100 weekly amounts to a temporary total disability allowance of $65 per week. The detailed provisions of said section 4453 will be reviewed later.
The sole question involved is whether the finding of maximum earnings is supported by the evidence. As later discussed, the finding that the employee's earnings were maximum is not supported by the evidence, and the award therefore must be annulled.
The uncontradicted evidence shows that, during the entire year (1960) immediately preceding the injury sustained on January 13, 1961, the employee only had earnings amounting to $760.
When the employee worked during 1960, he worked on construction jobs as a jack hammer driller and sometimes as a general heavy construction laborer.
The employee testified that, during 1960, he was physically able to work and ready and willing to work.
No evidence of economic or employment conditions during 1960 in construction work where a jack hammer driller or heavy construction laborer might be employed appears on the record, other than the employee's unexplained testimony that 1960 was a 'bad year,' and that he was unemployed.
The evidence next shows that he was first employed by Del Mar Contractors on January 3, 1961. It appears that he worked irregularly for said contracting company until he was injured on January 13, 1961. On Tuesday, January 3, 1961, he worked eight hours at $3.08 per hour, receiving $24.64 for such workday; on Thursday, January 5, 1961, he worked four hours at $3.08 per hour, receiving $12.32 for said partial workday; and on Friday, January 6, 1961, he worked eight hours at $3.08 per hour, receiving $24.64 for said workday.
The following week he worked for the employer as follows: Tuesday, January 10, 1961, Wednesday, January 11, 1961, Thursday, January 12, 1961, eight hours on each of said three days at $3.29 per hour, receiving $26.32 for each of said three workdays; and on Friday, January 13, 1961 (the date of injury), he worked four hours at $3.29 per hour, receiving $13.16 for said partial workday.
Summarizing the above, the evidence shows that the employee worked for Del Mar Contractors two eight-hour days and one four-hour day during the first week of 1961; that during the second week of 1961, he worked for said contracting company three eight-hour days and one four-hour day; and that during said period he received total wages amounting to $153.72.
The employee testified that the job on which he was working was the construction of a new elementary school; that the work thereon had started less than a week before he was sent to the job by his union hiring hall; that the pillar construction for the foundation of the new school to be constructed covered an area one block square; and that he understood that the new school building was to be two stories in height, and was to be a wooden frame building reinforced with steel. The employer listed the employee on its records as a temporary employee. The employee testified however that no one told him he was employed as a temporary employee; and that no statement was made to him one way or the other as to the status or duration of his employment. He further testified that besides working on the job as a jack hammer driller, he had worked on it as a general heavy construction laborer.
Other than such surmise, conjecture or inference which might perhaps be drawn from the employee's testimony that the work to construct a new school had only been started less than a week before he went to work on the job, that the pillar construction for the foundation of the new school building to be constructed covered a square block, and that he understood that the new school building to be constructed was to be of wooden frame construction reinforced with steel and two stories in height, no evidence whatever was presented to or before the respondent commission concerning the building to be constructed nor as to the estimated time which would be required to build such new school building.
Further, no evidence whatever was presented to the commission as to the length of time during which jack hammer drillers or general heavy construction laborers might be needed or employed on the project. As previously noted, the only evidence in this connection was that the employer had listed the employee as a temporary employee, and the employee's testimony that no one had ever told him that he was a temporary employee and that no statement had ever been made to him one way or the other as to status or duration of his employment.
Labor Code, section 4453, first specifies in general that in computing average annual earnings for the purposes of temporary disability indemnity only, the average weekly earnings shall be taken at not less than $30.77 nor more than $100.
Subdivision (a) of said section then provides, 'Where the employment is for 30 or more hours a week and for five or more working days a week, the average weekly earnings shall be 95 percent of the number of working days a week times the daily earnings at the time of the injury.'
The commission correctly ruled that the average weekly earnings of the employee herein had to be based on and computed in accordance with subdivision (d) of said section 4453. Subdivision (a) of said section could not govern herein since there was no evidence that Colston's employment was for 30 or more hours a week and for five or more working days a week; and subdivision (b) and (c) of said section apply to factual situations entirely different from that of the employee Colston herein.
Subdivision (d) of said section 4453 specifies, 'Where the employment is for less than 30 hours per week, or where for any reason the foregoing methods of arriving at the average weekly earnings cannot reasonably and fairly be applied, the average weekly earnings shall be taken at 95 percent of the sum which reasonably represents the average weekly earning capacity of the injured employee at the time of his injury, due consideration being given to his actual earnings from all sources and employments.' (Emphasis added.)
The evidence establishes that the employee was irregularly employed; that his total earnings during 1960 only amounted to $760; and that his earnings during the first two weeks of 1961 amounted to $153.72. It thus appears that for a reasonable annual period, the employee's earnings were not maximum; and that even for the first two weeks of 1961, his earnings were not maximum.
The commission predicates its finding and award of maximum earnings on the basis that the evidence purportedly establishes that the employee was hired on a substantial construction job for an indefinite duration and that, by virtue of his rate of pay, his earning capacity was such as to warrant an award of maximum compensation benefits.
Said finding and award of the commission first wholly disregards the specification set forth in subdivision (d) of section 4453 to The correct rule however is that, 'Earning capacity under subdivision (d) [of Lab.Code, § 4453] cannot properly be determined by reference to the rate of pay alone, as the Aetna [Aetna Life Ins. Co. v. Industrial Acc. Comm.] (130 Cal.App. at page 493, 20 P.2d at page 372 ) and Colonial [Colonial, etc., Ins. Co. v. Industrial Acc.Comm.] (47 Cal.App.2d at page 492, 118 P.2d at page 361 ) decisions erroneously assume. Fundamentally, earning capacity is total earnings measured against the period of time within which those earnings were made. Whether the earning capacity rate is identical with the pay rate depends upon the steadiness of employment. Thus the particular wage rate an employee is receiving at the moment of injury may or may not be indicative of his actual earning capacity at that time. * * * In making this determination due consideration must be given to the earning history of the disabled employee. We agree with the statement in the Aetna decision, 130 Cal.App. at page 492, 20 P.2d at page 372, that due consideration means reasonable and not exclusive consideration. But earning history must be considered in arriving at earning capacity, and more often than not, it will be determinative.' (West v. Industrial Acc.Com., 79 Cal.App.2d 711 at 725, 180 P.2d 972 at 981; Argonaut Insurance Co. v. Montana and Industrial Acc. Com., 197 A.C.A. 639, 17 Cal.Rptr. 210.)
The commission herein has clearly failed to give due consideration to the employee's earning history, which earning history if considered would have negated any finding of maximum earning capacity.
Further and finally, the evidence does not warrant any conclusion or determination that the employee would have continued to be employed at maximum earnings. It may be that the employee's testimony as to the purported size and nature of the building to be constructed might possibly warrant the drawing of an inference that the construction of the school building would require some considerable time. However, the employee's testimony that he was not informed as to the status or duration of his own employment and the evidence of the irregularity of his employment from January 3, 1961 to January 13, 1961, does not warrant any conclusion or determination that the employee would have continued to have been employed on the job. In the absence of any testimony and evidence other than the above, we are necessarily compelled to hold that the commission's finding of maximum earnings was based on pure unsupported conjecture and surmise.
The award is therefore annulled, and the proceeding is remanded to the commission with instructions to redetermine the award in a manner not inconsistent with the views set forth herein.
SHINN, P.J., and FORD, J., concur.