I dissent.
I reiterate the views expressed in my dissents in Bryant v. Industrial Acc. Com., 37 Cal.2d 215, 223 [231 P.2d 32], and Aetna Life Ins. Co. v. Industrial Acc. Com., 38 Cal.2d 599, 605 [241 P.2d 530]. In the latter case the majority held that a lien for unemployment disability payments must be allowed against the sum a workman was to receive for an injury under a compromise with his employer’s insurance carrier. The present case goes one step further and holds that the employee has the burden of proving that the compromised claim was not compensable under the workmen’s compensation laws even though it is the payor of the disability payments who is asserting the lien, and for him to be entitled to it, the disability must have been compensable *696under the workmen’s compensation laws. This is squarely contrary to section 5705 of the Labor Code, dealing with workmen’s compensation, which provides that: “The burden of proof rests upon the party holding the affirmative of the issue.” (See, also, Code Civ. Proc., §§ 1981, 1869.) Hence the lien claimant had the burden of proving that the compromise payment was for an injury compensable under the workmen’s compensation laws. To escape that proposition the majority reasons that the burden should be on the employee because he is better able to sustain it. While that may be true to some extent, the testimony of the employer and his employees and the data gathered as the result of any investigation made by the employer’s insurance carrier are available equally to the lien claimant and the employee. It would seem to follow, therefore, that with reference to that source of evidence the employee is in no better position than the lien claimant. In any event it would seem that at least some burden rested upon the lien claimant to make a prima facie showing that the employee was in a position to produce evidence relating to the injury which was not available to the lien claimant. No such showing was made. In this state of the record, reliance by the majority upon the doctrine of res ipsa loquitur seems rather farfetched. In brief, we have here merely the assertion of a claim for workmen’s compensation benefits by the employee, which claim was not pressed because of the compromise. We also have the assertion of a lien by the Department of Employment against the amount of the compromise. At this point the employee is claiming nothing with respect to compensation, but the majority says that the burden is on him to disprove that his injury was employment connected or a lien will attach. Of course, the majority would not hold that the mere assertion of a claim for workmen’s compensation by an employee creates a presumption of its validity, as such holding would place an undue burden upon the employer and his insurance carrier. Yet the effect of the majority holding in the case at bar is to create such a presumption. But it is created for the purpose of defeating rather than supporting the claim of the employee. Thus a law which was designed to protect the interests of injured employees is construed to defeat their interests.
The majority also advances the specious argument that unless every claim of lien for disability benefits is allowed against awards for workmen’s compensation the payment of *697disability benefits will be delayed to the detriment of the injured employees. Why this result would obtain is not apparent. The statute defining who is entitled to disability benefits is clear (Deering’s Gen. Laws, 1949 Supp., Act 8780d, §§ 201, 205, 206.1, 207, 208). The provisions for payment of such benefits are also clear (Deering’s Gen. Laws, 1949 Supp., supra, Act 8780d, §§ 250-254). With respect to the purpose of the act, section 150 thereof provides: “The purpose of this article is to compensate in part for the wage loss sustained by individuals unemployed because of sickness or injury and to reduce to a minimum the suffering caused by unemployment resulting therefrom. This article shall he construed liberally in aid of its declared purpose to mitigate the evils and burdens which fall on the unemployed and disabled worker and his family.” (Emphasis added.) The majority would thwart this salutary purpose by suggesting to those responsible for the payment of unemployment compensation disability benefits that payment of such benefits be delayed in cases where workmen's compensation is also claimed by the employee until the validity of such claim is determined. In refutation of this argument I venture to suggest that if such a practice should be pursued by those responsible for the payment of such benefits, the Legislature would provide an appropriate penalty designed to correct such an evil. However, as I read the act, I can see no basis for the unwarranted suggestion contained in the majority opinion.
Because there is no evidence on which a valid lien could be imposed on the amount covered by the compromise, I would annul the award.
Petitioner’s application for a rehearing was denied December 10, 1953.
Carter, J., was of the opinion that the petition should be granted.