Pagones v. Industrial Accident Commission

YORK, P. J.

Petitioner, the proprietor of the Cafe Bal Tabarin in Los Angeles, seeks by this proceeding to review findings and award made March 29, 1937, by respondent Commission, wherein petitioner was held liable as an employer of respondent Billie Hawkins, a dancer and entertainer, for injuries sustained by her during a dance rehearsal resulting in temporary total disability. Petitioner carried workmen’s compensation insurance as to various persons in his employ, but it did not cover 11 entertainers ’’.

It appears that seven and one-half months after the injury was sustained respondent Hawkins filed her application for adjustment of her claim for compensation. Hearing was had before respondent Commission and an award was made in her favor for the sum of $148.20, together with reasonable value of medical expenses. Petitioner, who had theretofore appeared in person, employed counsel to present a petition for rehearing, which was denied.

Petitioner here contends, as he did in his petition for rehearing before the Commission, that the Commission acted

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in excess of its powers, in that (1) “petitioner raised as an oral defense . . . that seven and one-half months had elapsed from the time of the alleged injury to the filing of the petition”; and (2) “as an oral defense . . . stated that he had been given no notice of the alleged injury of any kind until the service of the application for compensation”; (3) that the award “was procured by fraud, in that petitioner was a foreign-born American citizen, not familiar with the American laws or customs, and because of his unfamiliarity in a proceeding before the . . . commission, relied upon advice from the office of the . . . commission, that a written answer was not necessary, independent counsel was not necessary; that all he had to do was to appear and tell his story, and the commission would protect his rights; (therefore) it would constitute a fraud upon the petitioner to charge him with technically failing to raise the statute of limitation in writing as an affirmative defense, or that he had received no notice of the injury within thirty days, and particularly to deny a rehearing so that he could have had the benefit of counsel to otherwise raise, if necessary, these defenses, which were clearly his right to have raised for him”.