Clendaniel v. Industrial Accident Commission

THE COURT.

This is a proceeding to review an order of the Industrial Accident Commission refusing to reopen its decision denying compensation to the petitioner.

The petitioner was a waiter employed at the Horseshoe Tavern in San Francisco. He worked on the night shift, commencing at 8 o’clock. He suffered a slight puncture or laceration of the thumb, which developed into blood poisoning. He claimed to have sustained the injury on the night of March 31, 1937, by striking his thumb on the end of a protruding nail while washing the top shelf of the salad counter in the tavern. He was confined in a hospital for several weeks. He did not report the alleged industrial injury. Shortly after his discharge from the hospital the insurance carrier of the employer initiated proceedings before the Commission for an adjustment of the claim for compensation. On November 18, 1937, the commission denied compensation on the ground that the employee had failed to establish that his injury arose out of or in the course of his employment. No petition to review the order of denial of compensation was filed and said order became final.

At the time when the petitioner claimed to have suffered the injury a Chinese cook was working in the tavern. On May 10, 1937, the cook left for China and did not return until March 1, 1938. Shortly after his return the petitioner

[661]

applied to the commission to re-open the ease so that he might avail himself of the cook’s testimony to the effect that he had seen the petitioner’s injured thumb immediately after the alleged accident and had suggested first aid treatment.

The motion to re-open was made pursuant to section 5803 of the Labor Code (formerly section 20d of the Workmen’s Compensation Act). It was made on the ground that the discovery of the return of the Chinese cook from the Orient on March 1, 1938, and of the fact that he would testify as above indicated, constituted good cause for the re-opening of the case in his favor. The matter of the motion to re-open was referred to one referee and was completed before another, who recommended that the motion be denied. The commission concluded that good cause had not been shown and denied the motion. Following the denial of a petition for rehearing the present application was filed.