Subsequent Injuries Fund v. Industrial Accident Commission

BRAY, J.

Petitioner seeks review and annulment of an order of the commission (by decision after reconsideration) amending as against petitioner an award made more than five years after the date of the industrial injury.

Question Presented

Power of commission to act under section 5410, Labor Code, after having previously denied an application for an award against the Subsequent Injuries Fund.

Record

November 11, 1949, applicant suffered an industrial injury to his back and legs. October 8, 1953, findings and award, awarded applicant 72 per cent permanent disability against defendant carrier, but, on the ground that applicant was already totally disabled, it was held that applicant was not entitled to any benefits from the Subsequent Injuries Fund and his application was dismissed.

Thereafter in

Smith

v.

Industrial Acc. Com.,

(Cal.App.) 272 P.2d 895, the District Court of Appeal held that an employee with a 100 per cent permanent disability before the industrial injury could be entitled to benefits from the Fund.

[608]

October 11, 1954 (within the five-year period) applicant filed petition to reopen against Subsequent Injuries Fund.

November 1,1954, due to the fact that a hearing of

Smith

v.

Industrial Acc. Com., supra,

had been granted by the Supreme Court and not yet determined, an order was made taking the ease off the commission’s calendar to be reset upon request of any of the parties.

November 5, 1954, defendant carrier filed petition to reopen.

April 9, 1956 (beyond the five-year period). By this time