I dissent.
Although only one physical impairment was involved here, and the permanent disability is 58 percent and not the 70 percent required to invoke provisions of the Subsequent Injuries Fund (Lab. Code, §§ 4751-4755), the principle established by the majority undoubtedly would, in an appropriate subsequent injuries case, result in shifting an added portion of the burden of compensation from the employer’s insurance carrier to the taxpayers of the state. This we should be reluctant to do unless compelled by statute, and I find the statutory construction employed by the majority to be far short of compelling.
Instead of solving the instant problem by using Labor Code sections 4663 and 4750 as the start and finish of our analysis, the method adopted by the board and the majority, it would seem more logical, as it did to the referee, to refer primarily to the Legislature’s latest word on the subject: the 1972 and 1974 amendments to section 4658. We should give effect to the most recent legislative intent, except as it may be prohibited by prior unrepealed law.
When that approach is used, I reach the same conclusion as that of Acting Presiding Justice Sims of the Court of Appeal. Thus I adopt his views on this case as my dissent, omitting for editorial convenience his initial paragraph.
Reference to the amended section reveals that the Legislature intended that a person who suffers a disability of 58 percent should receive compensation of $20,790 payable at the rate of $70 per week for 297 weeks. If a nonsmoker suffered from solely industrial causes the same lung injuries which were found to have permanently disabled the petitioner as of May 10, 1972, the revised compensation in the foregoing amount represents the- Legislature’s view of what would be fair compensation. In the instant case it has been determined by stipulation and by rulings on the stipulated facts that of the total permanent disability rated at 58 percent, 24.17 (rounded to 24.25) percent was not, and 33.83 (rounded to 33.75) percent was, industrially caused. It, therefore, would appear reasonable to conclude that of the total indemnity contemplated by the Legislature, that sum should be paid which is the equivalent of the percentage of disability which was industrially covered, or 58.33 percent (33.83/58.00). This produces compensation of $12,126.81, or a sum the equivalent of the $12,127.50 which the referee awarded by finding permanent disability of 38.75 percent which called for 173.25 weekly payments of $70, for a total of $12,127.50.
*10The respondents contend that it is improper to compute the compensation in the foregoing manner because traditionally it has been the practice to deduct the percentage of nonindustrially related permanent disability from the total disability and then compute the compensation for the remaining percentage of permanent disability.1 That practice worked equitably under a system of compensation which merely progressed arithmetically with the percentage of disability. The fact that it is not equitable under a system where the rate of compensation increases with the severity of the disability is sufficient to warrant its rejection under the new rates. To apply the pre-1972 formula would deprive the employee of a proportion of the compensation which the Legislature intended for a worker suffering permanent disability to the total extent of that incurred by petitioner. To award the top bracket as all industrially caused, as contended for by the petitioner, would unduly enrich him at the expense of the employer or its insurer. The solution selected by the referee does justice to both.
It is contended that the provisions of sections 4663 and 4750 of the Labor Code require that the percentage of nonindustrial related disability be first subtracted from the percentages of total permanent disability before computing the award. These sections2 refer to “compensation.” It may be noted that “the proportion of the disability due to the aggravation of such prior disease which is reasonably attributed to the injury” as referred to in section 4663, is, as we have seen above, 58.33 *11percent of the 58 percent disability. The formula proposed in this opinion does not purport to give more than 58.33 percent of the compensation for a 58 percent disability under the tables as amended effective April 1, 1972.
Section 4750 has more stringent requirements. In the first paragraph it prohibits “compensation for the later injury in excess of the compensation allowed for such injury when considered by itself and not in conjunction with or in relation to the previous disability or impairment.” The second paragraph reiterates, “The employer shall not be liable for compensation to such an employee for the combined disability, but only for that portion due to the later injury as though no prior disability or impairment had existed.” Read by themselves the provisions of this section appear to unalterably prohibit consideration of that portion of petitioner’s disability which is not related to the industrially related injury for which he seeks compensation; 58.33 percent of his total 58 percent disability, or a disability of 33.83 percent, should be considered and the balance would be completely disregarded in determining the compensation.
Section 4750 relates to subsequent injuries. (See §§ 4750-4755.) Therefore it is questionable whether it is properly applicable to the situation here where only one physical impairment has resulted from compensable and noncompensable causes.3 In any event if it is applied literally to the progressive rates it would defeat the intent of the Legislature. In this case for example it is stipulated that the compensable industrial injury occurred over a period of a little over 20 years with varying periods of exposure for each of five carriers. The carriers jointly are apparently reluctantly prepared to assume a collective liability for the compensation payable for 33.75 percent permanent disability at the revised rates in the sum of $10,027.50. Logically, however, if each had represented a separate employer who in turn had taken the employee *12with the injury suffered under the prior exposure, the sum of each exposure would not equal the total compensation provided for an industrial injury by the graduated rates. (E.g., if the employee had worked four years for each of five employers, each could claim a liability limited to 12 weeks, or $40, and the aggregate would be $4,200, rather than $10,027.50 contemplated by the Legislature.) Of course the exposure cannot be so split by having different carriers for the same employer. The record does show, however, that after working 182 months for one employer, the petitioner worked 54 months for another, and then returned to his original employer for the 8 months preceding his injury. Should the compensation be that for 33.75 percent disability, or, if section 4750 is applied literally, the sum of several fractional parts of 33.75 percent measured by the ratios of 182/244, 54/244 and 8/244?
In applying the provisions of article 5 (§§ 4750-4755) the employee should be entitled to the full compensation provided by section 4658 when a prior industrial condition' is involved. It is unnecessary to determine in these proceedings if, when there are disrelated physical impairments, the formula proposed herein should be used to apportion the total compensation, or whether, in appropriate cases the subsequent injuries fund should bear the full burden of the increased rates. (See State Compensation Ins. Fund v. Industrial Acc. Com. (Hutchinson) supra, 59 Cal.2d 45, 52; Subsequent Injuries Fund v. Ind. Acc. Com. (Harris) supra, 44 Cal.2d 604, 609-610; and Subsequent Injuries Fund v. Workmen’s Comp. Appeals Bd. (1974) 40 Cal.App.3d 403, 409-410 [115 Cal.Rptr. 204].) Where, as here, there is but one impairment, the formula applied by the referee and approved herein would equitably apportion the total compensation for the total resultant permanent disability between the last employer and those who preceded him. It is concluded that the legislative intent to increase the rate of compensation can only be implemented by applying a factor determined from the proper graduated rate to the total portion of the last industrially related portion of the total permanent disability as was done by the referee.
It is contended that the construction adopted in this opinion will thwart the recognized intent of the provisions of sections 4663 and 4750 to encourage the employment of the partially disabled.4 If one concludes *13that the last employer is called upon to pay more than a fair share of the higher rate, such is the case. As pointed out in the majority opinion if the compensation equivalent to that for the percentage of the nonindustrial connected disability is taken off the bottom, as urged by petitioner, the employee would get a considerable windfall and the employer a commensurate penalty. It may also be urged that to require an employer to pay the equivalent of compensation for a rated 38.75 percent disability when the employment has only contributed the disability to a rated amount of 33.83 percent will discourage the employment of the partially disabled. The Legislature in increasing the rates on a graduated scale may be deemed to have had this effect in mind and to that extent has acted to deter the employment of the partially disabled. In return, by its latest enactment it increased the compensation for all who are disabled as a result of industrially related causes.
I would annul the decision of the appeals board and remand the case with instructions to reinstate the award made by the referee.
Tobriner, J., concurred.
See State Compensation Ins. Fund v. Industrial Acc. Com. (Hutchinson) (1963) 59 Cal.2d 45, 50-54 [27 Cal.Rptr. 702, 377 P.2d 902]; Subsequent Injuries Fund v. Ind. Acc. Com. (Harris) (1955) 44 Cal.2d 604, 609 [283 P.2d 1039]; Edson v. Industrial Acc. Com. (1928) 206 Cal. 134, 139-140 [273 P. 572]; Ford Motor Co. v. Industrial Acc. Com. (1927) 202 Cal. 459, 463-464 [262 P. 466]; Subsequent Injuries Fund v. Workmen’s Comp. Appeals Bd. (1974) 40 Cal.App.3d 403, 409 [115 Cal.Rptr. 204]; Avila v. Workmen’s Comp. App. Bd. (1970) 14 Cal.App.3d 33, 39 [91 Cal.Rptr. 853]; Truck Ins. Exch. v. Industrial Acc. Com. (1965) 235 Cal.App.2d 207, 209-211 [45 Cal.Rptr. 178]; Pacific Gas & Elec. Co. v. Ind. Acc. Com. (1954) 126 Cal.App.2d 554, 556-557 [272 P.2d 818] Wolski v. Industrial Acc. Com. (1945) 70 Cal.App.2d 427, 428-432 [161 P.2d 283]; and Gardner v. Industrial Acc. Com. (1938) 28 Cal.App.2d 682, 684 [83 P.2d 295].
Section 4663 provides: “In case of aggravation of any disease existing prior to a compensable injury, compensation shall be allowed only for the proportion of the disability due to the aggravation of such prior disease which is reasonably attributed to the injury.”
Section 4750 provides: “An employee who is suffering from a previous permanent disability or physical impairment and sustains permanent injury thereafter shall not receive from the employer compensation for the later injury in excess of the compensation allowed for such injury when considered by itself and not in conjunction with or in relation to the previous disability or impairment. [11] The employer shall not be liable for compensation to such an employee for the combined disability, but only for that portion due to the later injury as though no prior disability or impairment had existed.”
See State Compensation Ins. Fund. v. Industrial Acc. Com. (Hutchinson) supra, 59 Cal.2d 45, 50-53; and Subsequent Injuries Fund v. Ind. Acc. Com. (Harris) supra, 44 Cal.2d 604, 608. In the former case, the court after reviewing the earlier case, stated: “Were section 4663 applicable it appears from the above case that the proper apportionment method then is to determine the combined disability and then assign a proportion thereof to the prior and subsequent disabilities to obtain a percentage disability attributable to each. Here, however, section 4750 applies and for the reasons discussed above this figure should be obtained by applying the method of apportionment used in the Gardner [Gardner v. Industrial Acc. Com., supra, 28 Cal.App.2d 682] case." (59 Cal.2d at p. 56; see also Hegglin v. Workmen's Comp. App. Bd. (1971) 4 Cal.3d 162, 173-174 [93 Cal.Rptr. 15, 480 P.2d 967]; and Granado v. Workmen’s Comp. App. Bd. (1968) 69 Cal.2d 399, 402 [71 Cal.Rptr. 678, 445 P.2d 294].)
In State Compensation Ins. Fund v. Industrial Acc. Com. (Hutchinson) supra, 59 Cal.2d 45, the court observed, “The purpose of this statutory provision [§ 4750] is to encourage the employment of physically disabled persons by assuring an employer that he will not be liable for the total combined disability present after an industrial injury, but only for that portion which is attributable to the subsequent industrial injury. [Citations.]” (59 Cal.2d at p. 49: see also Hegglin v. Workmen's Comp. App. Bd., supra, 4 *13Cal.3d 162. 173 [93 Cal.Rptr. 15, 480 P.2d 967]: Jones v. Workmen's Comp. App. Bd. (1968) 267 Cal.App.2d 302, 305 [72 Cal.Rptr. 766]: and Wolski v. Industrial Acc. Com., supra. 70 Cal.App.2d 427, 432.)