# Goytia v. Workmen's Compensation Appeals Board > California Supreme Court · January 30, 1970 · 1 Cal. 3d 889 URL: https://www.frixlaw.com/law-library/cases/9581536 ## Case - **Full name:** RUTH GOYTIA, Petitioner, v. WORKMEN'S COMPENSATION APPEALS BOARD and CALIFORNIA PACKING CORPORATION, Respondents - **Court:** California Supreme Court - **Decided:** January 30, 1970 - **Citations:** 1 Cal. 3d 889; 83 Cal. Rptr. 591; 464 P.2d 47; 35 Cal. Comp. Cases 27; 1970 Cal. LEXIS 357 - **Precedential status:** Published - **Opinion:** Dissent by Traynor - **Judges:** Tobriner, Traynor - **Cited by:** 35 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9581536 ## Opinion text TRAYNOR, C. J. I dissent. The court annuls the award in this case on the ground that the decision of the board is ambiguous in failing to set forth the evidence relied on and the reason for the decision, thus leaving open the possibility that the board did not give “due consideration” to post-injury earnings but based the compensation rate solely on the applicant’s actual earnings at the time of her injury rather than her earning capacity. Although the board’s decision might well have been more explicit, I do not agree that the award must be annulled. Nor do I agree that in this case the board must consider post-injury earnings. There is no evidence that the applicant ever sought employment on other than a part-time seasonal basis prior to her injury. It is therefore my opinion that evidence of post-injury earnings from full-time employment is irrelevant to a determination of earning capacity at the time of the injury. The applicant concedes that her employment history before her injury would not support an award above the minimum compensation rate. The *899 court’s holding herein that the board must give “due consideration” to post-injury earnings in the circumstances of this case includes by necessary implication a holding that the board could properly award compensation above the minimum if, after consideration of post-injury earnings, it determined that the applicant’s earning capacity at the time of the injury was greater than that demonstrated by her pre-injury work history. The court’s construction of Labor Code section 4453, subdivision (d), appears to me to be inconsistent not only with the language of the section but with our decision in Argonaut Ins. Co. v. Industrial Acc. Com. (1962) 57 Cal.2d 589 [ 21 Cal.Rptr. 545 , 371 P.2d 281 ]. Furthermore, it invites injured employees with a history of seasonal or part-time employment to accept full-time employment prior to the hearing before the referee in order to obtain a possible windfall at the expense of the carrier. The purpose of subdivision (d) is “to equalize for compensation purposes the position of the full-time, regularly employed worker whose earning capacity is merely a multiple of his daily wage and that of the worker whose wage at the time of the injury may be aberrant or otherwise a distorted basis for estimating true earning power.” (Argonaut Ins. Co. v. Industrial Acc. Com., supra, 57 Cal.2d 589, 594 .) (Italics added.) Thus, when a regularly employed worker for reasons beyond his control, such as illness, strikes, lay offs, temporary recession, or other factors affecting the opportunity for full-time employment in his customary occupation, is receiving a wage at the time of his injury that does not fairly reflect his earning capacity as suggested by his work history, subdivision (d) permits the board to consider that history and other relevant information in determining his earning capacity. Conversely, as we held in Argonaut, if at the time of his injury the worker is employed full-time as a permanent employee, but his work history establishes that he has had irregular employment at low wages over a long period of time and the current employment is only for the duration of a particular job, it is inconsistent with the purpose of the statute to base a permanent disability award solely on the high wage he is fortuitously earning at the time of the injury. ( 57 Cal.2d 589, 594 .) The present case should be governed by these rules. If an award may not be based solely on a high wage fortuitously being earned at the time of an injury when there is a history of irregular, part-time work because the wage at the time of the injury is aberrant, it follows that where there is no evidence of willingness to accept other than seasonal or part-time work prior to the injury, earning capacity at the time of the injury cannot properly be determined on the basis of post-injury earnings from full-time employment in another occupation. An applicant’s willingness and opportunities to work are relevant to his earning capacity. (Argonaut Ins. Co. v. Industrial Acc. *900 Com., supra, 57 Cal.2d 589, 595 .) A worker who is not available for full-time regular work or who chooses to work seasonally limits his own earning capacity voluntarily by his unwillingness to work when opportunities to do so are available. Subdivision (d) of Labor Code section 4453 requires that the average weekly earnings “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. . . .” (Italics added.) Post-injury earnings of an employee who became willing to accept full-time work only after the injury are not relevant to his earning capacity at the time of the injury when his willingness and availability were subject to self-imposed limitations. The cases on which the majority opinion relies for the proposition that post-injury earnings may be considered were not concerned with post-injury earnings, but with factors other than actual earnings existing at the time of the injury. In Colonial etc. Ins. Co. v. Industrial Acc. Com. (1941) 47 Cal.App.2d 487 [ 118 P.2d 361 ], California Cas. lndem. Exchange v. Industrial Acc. Com. (1933) 135 Cal.App. 746 [ 27 P.2d 782 ], and Aetna Life Ins. Co. v. Industrial Acc. Com. (1933) 130 Cal.App. 488 [ 20 P.2d 372 ], the question was the earning capacity of an employee whose earnings during the year prior to his injury had been low as a result of temporary illness or other cause that prevented his working during that year, but whose work history demonstrated that he possesed a significantly greater earning capacity. In the Colonial case the court adopted the reasoning of the two earlier cases that in such circumstances “an amount based only upon the average sum which he actually received during that year, regardless of the unusual conditions affecting his employment would not fairly represent his earning capacity.” ( 47 Cal.App.2d 487, 491 . Italics added.) I agree with that reasoning and with the result in those cases. The holdings are entirely consistent with section 4453, subdivision (d), and with Argonaut Ins. Co. v. Industrial Acc. Com., supra, 57 Cal.2d 589 . The court’s extension of those cases to encompass post-injury earnings in addition to factors existing at the time of the injury is unwarranted. Nothing in those cases suggests that the court contemplated consideration of circumstances subsequent to the injury in determining earning capacity. Neither those cases, nor Argonaut, are authority for the court’s holding herein. Finally, Dole v. Industrial Acc. Com. (1966) 31 Cal. Comp. Cases 41 , is distinguishable from the present case. The referee’s report and recommendation on reconsideration in that case notes that the employee had held full-time employment for a three-year period followed by four years of sporadic employment immediately prior to the injury. He had been discharged from the full-time employment because of wage attachments. His *901 employment at the time of the injury was seasonal and his earnings would not support a maximum award. He contended that he was unable to work for a part of the year prior to his injury. “Subsequent to injury applicant secured steady employment at $387.00 per month. As he had sustained permanent disability before securing such employment, it is the Referee’s opinion that if in such disabled condition he was able to earn $387.00 per month, his earning capacity at the time of injury was undoubtedly no less than that.” ( 31 Cal. Comp. Cases 41 , 42.) There is no showing regarding the reason the worker engaged in seasonal employment over a four-year period. It is a permissible inference that he was unskilled and unable to obtain full-time work. Furthermore, he may have been prevented by health from obtaining full-time work. In sum, the case does not stand for the proposition that a worker who is voluntarily unavailable for work except on a seasonal basis for over 20 years is entitled to a maximum award because he obtained full-time employment for the first time in his life after the injury. Esparza v. Regents of the University of California (1966) 31 Cal. Comp. Cases 433 , is similarly distinguishable. The board there took into consideration the willingness of the employee, who was a student, to work. He had worked partiime during the semester and full-time during his vacation. That the Legislature contemplated application of a standard acknowledging intent to obtain full-time employment in the future for students is apparent from section 4455 of the Labor Code, 1 which requires that a permanent disability award to a minor reflect the earnings he probably would have received at age 21. It is obvious that different policy considerations apply to minors and students who because of age and the necessity to complete their formal education cannot undertake full-time employment. Post-injury earnings may be relevant to the determination of earning capacity in some circumstances. If an employee offers evidence that he was actively seeking full-time employment or employment at a higher wage when he was injured, the fact that he later obtains such employment is relevant to establishing his competency to fill the desired position. Here, however, the applicant had worked seasonally as a cannery worker for more than 20 years prior to the injury. Only once had she sought other employment. In 1958 she was self-employed as an agent for a dry cleaner, *902 but returned to seasonal cannery work because her earnings were not enough. Throughout the balance of her employment career, from 1937 to the time of the injury in 1966, she chose to work on a seasonal basis. There is no evidence in the record from which it can be inferred that in 1966 the applicant was willing and able to accept full-time employment in her post-injury occupation or any other. Therefore, her post-injury earnings are in no way relevant to her earning capacity at the time of the injury. No purpose would be served by annulling the award to permit the board to prepare a decision with recitals of evidence and reasons for the decision. There is no evidence upon which an award above the minimum could be sustained. I would affirm the award. McComb, J., and Burke, J., concurred. Respondents’ petitions for a rehearing were denied February 25, 1970, and the opinion was modified to read as printed above. McComb, J., and ■Burke, J., were of the opinion that the petition should be granted. “If the injured employee is under 21 years of age, and his incapacity is permanent, his average weekly earnings shall be deemed, within the limits fixed in Section 4453, to be the weekly sum which under ordinary circumstances he would probably be able to earn at the age of 21 years, in the occupation in which he was employed at the time of the injury or in any occupation to which he would reasonably have been promoted if he had not been injured. If such probable earnings at the age of 21 years cannot reasonably be determined, his average weekly earnings shall be taken at eighty dollars and seventy-seven cents ($80.77.)” --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9581536. Public record. Not legal advice.