City & County of SF v. Ind. Acc. Com.

142 Cal.App.2d 494 (1956) CITY AND COUNTY OF SAN FRANCISCO, Petitioner,

v.

INDUSTRIAL ACCIDENT COMMISSION and HELEN BAMFORD, Respondents.

Civ. No. 16965. California Court of Appeals. First Dist., Div. One.

June 25, 1956. Dion R. Holm, City Attorney, and Patrick R. Kelly, Deputy City Attorney, for Petitioner.

Everett A. Corten and Daniel C. Murphy for Respondents.

WOOD (Fred B.), J.

The main question upon this review of a decision of the Industrial Accident Commission which awarded benefits to the widow of a member of petitioner's fire department, involves the applicability of the disputable presumption that in the case of a member of such a department "heart trouble which develops or manifests itself during the period while such member is in the service of" such department "shall be presumed to arise out of and in the course of the employment. This presumption is disputable and may be controverted by other evidence, but unless so controverted, the commission is bound to find in accordance with it." (Lab. Code, 3212.)

The decedent was employed as a fireman commencing October 1, 1947. He served as a hoseman until April 22, 1952, when he was assigned to the arson squad. His superior officer testified that his duties in the latter capacity consisted of a day shift from 8 a. m. to 5 p. m., assigned to a desk, and included the typing and filing of daily records of fires, duties which continued until the commencement of his vacation on December 9, 1953, "with the exception of 15 to 18 weeks during the year when he would be called upon to relieve men with field duties who were on vacation. The field duties involved around-the-clock outside investigation of fires. It is only on rare occasions that an outside arson investigator [497] goes into a fire during the blaze or the conflagration. I couldn't say whether or not Mr. Bamford [the deceased employee] investigated any fires during the 15 or 18 weeks while he was on vacation relief which might have caused him any exposure to smoke or fumes."

The employee suffered a heart attack and died on December 30, 1953, the day immediately following the end of his vacation.

The referee summarized the widow's testimony, in part, as follows: "She testified in this connection that his duties [as arson inspector] were to answer all two-alarm fires and inspect during the progress of the fire to determine, if possible, what the cause might have been, that this necessitated his going in the buildings and that this work caused him to complain of burning in his throat. He complained of being 'full of smoke'; complained of severe pain, particularly on severe coughing which followed performance of such duties. Testified that he had paroxysms of coughing; testified that for possibly two years prior to his passing on, 12-30- 53[,] [h]e had frequently complained of severe pains substernally and would frequently tap his upper sternal area with his fingers, that he would stay up late at nights sitting in the chair, he having told her that this was more comfortable."