Dickow v. Workmen's Compensation Appeals Board

Opinion

MOLINARI, P. J.

In this proceeding we issued a writ of review upon petitioner’s petition seeking to have us inquire into and determine the lawfulness of respondent board’s findings and award and order denying his petition for reconsideration.

Petitioner was employed by Pacific Greyhound Lines, the real party, and its successor, as a service mechanic from January 29, 1951, through April 7, 1954. During that time petitioner was exposed to dust and foreign matter the inhalation of which was found to have caused him to develop a lung disease ultimately resulting in his becoming totally and permanently disabled on October 10, 1960.

On October 21, 1960, petitioner filed with respondent board his application for workmen’s compensation benefits. Petitioner was found to be totally and permanently disabled as of October 10, 1960, and was provided benefits accordingly. The decision applied the benefit schedule which existed in section 4453 of the Labor Code in 1954 when petitioner terminated his employment with real party. Petitioner filed a petition for reconsideration contending that the referee should have applied the benefit schedule applicable as of October 10, 1960, the date he became disabled. The petition for reconsideration was denied by respondent board.

[764]

We here observe that in 1959 Labor Code section 4453 was amended to provide for increased benefits.

Petitioner was employed from January 29, 1951, through April 7, 1954, as a service mechanic at San Francisco by Pacific Greyhound Lines and its successor, Western Greyhound Lines. As part of his employment petitioner was required to grind brake shoes for sustained periods of time without the aid of a mask or ventilation. The brake grinding process caused petitioner to inhale dust and foreign matter over extended periods of time.

Petitioner left respondent’s employ in April 1954. At that time he was not aware of any medical problems. In late 1959 petitioner complained of a shortness of breath. He was examined by Dr. Farber on October 10, 1960. At that time Dr. Farber diagnosed petitioner as being totally and permanently disabled by virtue of a disease in his lungs. Testimony of Dr. Fast and Dr. Callanan at the hearing of petitioner’s application was to the effect that his lung condition had been caused by inhalation of dust and foreign matter in the course and scope of his employment with real party.