State, Subsequent Injuries Fund v. Industrial Acc. Com.

WOOD (Fred B.), J.

On July 27, 1949, the employee was injured by exposure to parathion, a poison used in crop spraying. It was not until June 28, 1955, that he applied to join the state as a defendant, claiming benefits under the Subsequent Injuries Fund for compensation in respect to a preexisting eye condition which limited his vision.

The commission found a permanent disability of 69 per cent due to the spray poisoning (for which the employee had been compensated) and that this disability when added to the preexisting eye disability resulted in a combined permanent disability of 79 per cent. Accordingly, the commission made an award against the state in the sum of $1,200 (less $600 payable to the employee’s attorneys) and a life pension of $8.77 a week, beginning May 2, 1956. Upon reconsideration the commission rendered a decision substantially the same in all respects material to the present inquiry.

The sole question is whether or not the statute of limitations had run against this claim.

Section 5410 of the Labor Code has been held applicable.

(Subsequent etc. Fund

v.

Industrial Acc. Com.,

39 Cal.2d 83, 89-92 [244 P.2d 889];

Sutton

v.

Industrial Acc. Com.,

46 Cal. 2d 791, 794 [298 P.2d 857];

Subsequent etc. Fund

v.

Industrial Acc. Com.,

151 Cal.App.2d 606 [312 P.2d 78].) Section 5410 imposes a five-year limitation, from the date of injury, for an employee to institute proceedings “upon the ground that the original injury has caused new and further disability.” This statute, having been invoked by the state, would seem to operate as a complete bar to the employee’s application for benefits payable out of the Subsequent Injuries Fund.

In support of its decision the commission invokes subdivision (b) of section 5405 of the Labor Code which allows the commencement of proceedings within one year from “the expiration of any period covered by payment under Article 3 of Chapter 2 of Part 2 of this division” for the “collection