I dissent. This case presents the question of whether, under the applicable statutes, an employee unable to work because of an injury received in the course of his employment may receive unemployment disability payments under the Unemployment Insurance Act while he is receiving permanent disability payments for the injury under the workmen’s compensation laws. It is conceded that the statutes do not permit such payments when the workman’s compensation is for temporary disability as distinguished from permanent disability.
Under the law as stated and the background of the statutes here involved, the question must receive an affirmative answer if such statutes are given a reasonable and liberal construction as required by section 3202 of the Labor Code. The law was firmly established before the adoption of the unemployment disability provisions of the Unemployment Insurance Act that there was a clear distinction between temporary and permanent disability payments under workmen’s compensation laws. That is clearly evinced by the following provisions of the Labor Code: “If the injury causes temporary total disability, the disability payment is sixty-five per cent of the average weekly earnings during the period *224of such disability, consideration being given to the ability of the injured employee to compete in an open labor market.” (Lab. Code, § 4653. Italics added.) “If the injury causes temporary partial disability, the disability payment is sixty-five per cent of the weekly loss in wages during the period of such disability.” (Lab. Code, § 4654. Italics added.) On the other hand, compensation for permanent disability is computed in some cases for life (Lab. Code, § 4658) and takes into consideration “the nature of the physical injury or disfigurement, the occupation of the injured employee, and his age at the time of such injury, consideration being given to the diminished ability of such injured employee to compete in an open labor market. ’ ’ (Lab. Code, § 4660. Italics added.) That is to say, temporary disability payments are for wages actually lost while permanent disability is for impairment of earning capacity. The matter was clearly analyzed by this court in Department of Motor Vehicles v. Industrial Accident Commission, 14 Cal.2d 189, 191 [93 P.2d 131]: “The rule is well recognized that, generally, an employee is entitled to an award for permanent disability without regard to the receipt of wages after the injury. That the inability to return to reemployment is not a test for an allowance'of permanent disability is determined by the Labor Code itself. Section 4660 thereof provides that, in determining the percentage of permanent disability, account shall be taken of the nature of the physical injury or disfigurement, the occupation of the injured employee, and his age at the time of such injury. . . .
“In Postal Tel. etc. Co. v. Industrial Acc. Com., 213 Cal. 544 [3 P.2d 6], the rule is announced that wages earned by and paid to an injured employee subsequent to an award of compensation for a permanent disability could not be credited against such award, holding, in accordance with the rule followed in several industrial states, that the disability referred to in the statute was not such disability as impaired present earning power only, but embraced any loss of physical functions which detracted from the former efficiency in the ordinary pursuits of life. It is the prospective loss of future earning power under the existing handicap of physical impairment that is to be considered; and ability to do the exact work formerly done by the employee is not the sole measure of disability.” (Italics added.) It is clear therefore that temporary disability payments under workmen’s compensation laws are a substitute for wages lost by the em*225ployee while disabled. Hence if the payments for disability allowed under the Unemployment Insurance Act are also for such wages lost, then payments thereunder are deductible from such temporary disability compensation payments only and not from permanent disability compensation payments. That is, the unemployment disability provisions relate to and are compatible with only the temporary disability features of workmen’s compensation. That it deals only with wages, rather than earning capacity is clear. “An individual shall be deemed disabled in any week in which, because of his physical or mental condition, he is unable to perform his regular or customary work.” (Unemployment Insurance Act, Stats. 1935, p. 1226, as amended, § 201. Italics added.) The amount of benefits is computed on the basis of the wages payable (id. §§ 53, 54, 203), and, as noted in the majority opinion, the reference is to the “weeks” the employee receives benefits under the Workmen's Compensation Act, all pointing to the conclusion that wages, not earning capacity, is the basis for computing unemployment disability benefits.
That permanent disability payments should not be deducted from unemployment disability payments, or vice versa, is patently sensible. The former are for the loss for life of the capacity to earn a living. They are not apportioned according to certain periods of time, that is, one installment does not represent the payment for the loss of earning capacity for the installment period. The latter, however, are directly apportioned to each week and on the basis of the wages that would have been paid for that week had the employee not been disabled. There is, therefore, insufficient similarity between the two to justify balancing one against the other.
The only answer made by the majority opinion to the foregoing construction of the statute is that it is “tortuous.” On the contrary it is wholly reasonable and compelled by the requirement that workmen’s compensation laws be liberally construed to preserve their benefits to their beneficiaries. (Lab. Code, § 3202.)
Furthermore, my construction of the act is necessitated by the theory of workmen’s compensation that industry shall bear the burden of industrial injuries. (27 Cal.Jur. 256.) Under the Unemployment Insurance Act (§ 44) the employee contributes to the fund from which the benefits are payable. To that extent, he, not industry, is bearing the cost of an industrial injury.
*226Finally, there is an additional factor that makes the foregoing interpretation of the statutes mandatory, if anything is to be salvaged from the legislative declaration that an employee is entitled to both temporary and permanent disability. Prior to its amendment in 1945, section 4661 of the Labor Code provided: “Where an injury causing both temporary and permanent disability, the injured employee is not entitled to both a temporary and permanent disability payment, but only to the greater of the two.” (Italics added.) In that year it was amended to allow a recovery of both permanent and temporary disability compensation in part by adding the following sentence: “except that where the temporary disability payment exceeds 25 per cent of the permanent disability payment the injured employee shall be paid 75 per cent of such permanent disability payment in addition to the temporary disability payment.” (Stats. 1945, ch. 1335.) In 1947 the partial recovery was increased as follows: “Where an injury causes both temporary and permanent disability, the injured employee is entitled to compensation for any permanent disability sustained by him in addition to any payment received by such injured employee for temporary disability; provided, however, that where the permanent disability rating is 70% or greater, it shall be conclusively presumed that temporary disability did not exceed 104 weeks. ’ ’ (Stats. 1947, ch. 1132.) Finally in 1949, the Legislature went the whole way and allowed both temporary and permanent disability compensation to be paid. It stated: “Where an injury causes both temporary and permanent disability, the injured employee is entitled to compensation for any permanent disability sustained by him in addition to any payment received by such injured employee for temporary disability.” (Stats. 1949, ch. 107. Italics added.) Here is a clear mandate of the Legislature that the permanent disability compensation shall not be diminished by any payment of temporary disability compensation. That is to say, the “loss of wages ’ ’ — temporary disability compensation — shall not reduce the “loss of earning capacity” — permanent disability compensation. But under the strained construction of the statutes given in the majority opinion that mandate is completely ignored. It says that the unemployment disability payment, which is for the loss of wages only, the same as temporary disability compensation, must be deducted from the permanent disability compensation allowed for loss of earning *227capacity. That puts the employee hack where he was prior to 1945 with the temporary deducted from the permanent disability compensation allowed him. The unemployment disability benefit may be deducted from the temporary disability compensation, but the deduction must stop there, for if it extends to the permanent disability compensation, nothing was achieved. by the 1945, 1947 and 1949 amendments to section 4661 of the Labor Code. The various statutes must be read together to reach the legislative intent. I cannot assume, as does the majority, that the Legislature intended to give with one hand and take away with the other.
The Industrial Accident Commission construed the statutes here involved in accord with the views herein expressed, and the majority concede that the policy of the Commission in so construing the statutes has a “reasonable theoretical basis.” What is meant by the latter phrase is not clear in view of the reasoning and conclusion reached in the majority opinion. If it is meant that the interpretation placed upon the statutes by the Commission is reasonable, then it should be adopted by this court. That such construction is reasonable and not “tortuous” is obvious from the foregoing discussion.
For the foregoing reasons I would affirm the award.