Price v. Industrial Accident Commission

FRICKE, J.,

pro tem.

Petitioner was employed by the Empire China Company in a branch of its operations which subjected him to the dust of burnt clay and other vitrified products coming from machines not properly safeguarded against and disseminating such dust, and was also exposed, unnecessarily, to water upon the floor, at times ankle deep, draughts of cold air and silicate dust raised by sweeping. After several years of employment and beginning early in 1927, petitioner developed a cough. This condition progressed and he developed a tiredness and weakness which, toward the end of his employment, required him to lie down upon arriving home from his work. Petitioner’s employment terminated when his employer ceased business on about November 22, 1933. He did not consider his condition sufficiently serious to require medical attention until February, 1934, when he consulted a physician who advised him that he had a slight inflammation of the lungs from which he would soon recover. The following month petitioner was injured in an automobile accident, and his attending physician, in addition to some traumatic injuries, found a tubercular condition. On May 16, 1934, an X-ray examination disclosed advanced pulmonary tuberculosis and that some of the lesions resembled silicosis, a disease due to silicate dust, the latter diagnosis being later confirmed by attending physicians and not disputed by respondents. This diagnosis and the fact that he had silicosis first became Imown to petitioner on May 30, 1934. On June 22, 1934, he filed with the Industrial

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Accident Commission his application for compensation. After taking testimony of petitioner and his wife and certain other evidence, the referee of the commission gave notice to the parties hereto that the case would be submitted for decision on the issues of statute of limitations and prejudice from lack of notice to the employer, and thereafter made findings that “By the exercise of reasonable care and diligence petitioner should have disclosed the character of his condition prior to the date of final termination of work and that he failed to give notice of the injury to his employer within thirty days, and the employer was prejudiced in the investigation and defense of the claim. ’ ’ On the basis of the finding and conclusion that the claim was barred by the statute the case was dismissed. Petitioner then applied for a rehearing, which was denied.