Santa Maria Gas Co. v. Industrial Accident Commission , 46 Cal. App. 2d 775 ( 1941 )

DORAN, J.

Petitioner herein, self insured employer of respondent Eddie Huffman, sought a writ of review from the order of the Industrial Accident Commission amending a decision after a rehearing, which amendment increased the percentage of permanent disability as a result of which petitioner was required to pay Huffman $13.58 a week for 240 weeks and thereafter as compensation for permanent disability $3.34 per week.

The findings of fact following the first hearing by the commission reveal that as a result of an accident arising out of and occurring in the course of his employment, Huffman sustained a fractured vertebra. The accident occurred July 20, 1936. The findings and award of the first hearing were approved and filed August 25, 1937. Thereafter, in 1937, 1938 and 1939 additional hearings were had. In 1940 the gas company, petitioner herein, petitioned the commission to terminate liability. Following the hearing, the commission found as a fact that the percentage of Huffman’s disability was 76; that “said employee is also entitled to lifelong medical, nursing, hospital and sanitarium care, including artificial support, as may be required to cure and relieve from the effects of said injury.” Included in the order for compensation was a provision for the payment of “a life pension at the rate of $3.34 a week. ’ ’

The first disability rating had been fixed by the commission at 35%%. Thereafter it was increased to 54%% and finally, as above noted, to 76%.

It is the contention of petitioner herein, that the action of the commission fixing the rating at 76% was unwarranted because, as argued by petitioner “the commission did not have before it any competent, relevant evidence which had not theretofore been before it, and passed upon by it, which would warrant an increase in the permanent disability rating.” It is further argued that “the medical reports submitted from time to time were merely cumulative of conditions theretofore described . . . and did not constitute any cause for increasing the award to 76%.”

With regard to a request to alter an award, petitioner urges that “the power to grant such request should be exercised with great caution and only when fraud, inadvertence, mistake or excusable neglect are clearly shown.” It is also urged that ‘ ‘ an injury to the back such as sustained by Huffman in this case would not warrant the 76% rating.” The foregoing are the major contentions of petitioner from which it is contended in conclusion that there is no basis for the increase of the rating above mentioned.

The record fails to support petitioner’s contentions, but to the contrary sufficiently sustains the action of the commission. The judgment of the commission is not open to attack; the effect of evidence is not open to review.

Petitioner’s contention is based primarily on a disagreement with the conclusion reached by the commission in connection with which, as in many cases, there probably is opportunity for a difference of opinion. But the law is well settled that where there is substantial evidence to support it, the conclusion of the commission on questions of fact is final.

While it is true that a change in an award of the commission may not be predicated upon a mere change of opinion by the commission as to the correctness of its original decision (Merrit-Chapman & Scott Corp. v. Industrial Acc. Comm., 6 Cal. (2d) 314 [57 Pac. (2d) 501]), the record herein indicates that it is not true that all of the conditions found to exist as a basis for the last permanent rating were known to exist and were rated in the previous awards. In view of the medical reports submitted after such awards were made it cannot be said that there was no new evidence sufficient to warrant the commission in reopening and amending its previous decision and award under the continuing jurisdiction vested in the commission by section 5803 of the Labor Code.

Other minor contentions are unimportant. The action of the commission was well within its authority under the law. A careful review of the record reveals no grounds for effectively disputing its jurisdiction in the circumstances.

The award is affirmed.

York, P. J., and White, J., concurred.

A petition for a rehearing was denied October 14, 1941, and the following opinion then rendered: