Hanna v. Workmen's Compensation Appeals Board

Opinion

FLEMING, J.

Petitioner was employed as a peace officer from 1946 to 1962. He suffered a heart attack on 23 June 1971 and filed his claim for workmen’s compensation benefits within one year of his heart attack. Relevant is Labor Code section 3212.5, which declares that heart trouble developing or manifesting itself during a period of employment as a peace officer is presumed to arise out of and occur in the course of the employment. The referee found, and his finding has not been challenged, that the presumption controls here, i.e., that petitioner’s heart disease arose

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out of and occurred in the course of his employment. The nine-year lapse between employment and heart attack therefore presented no bar to recovery.

The controverted issue is whether the claim was timely filed or whether it was barred by the statute of limitations as not having been made within one year of the date of injury. (Lab. Code, § 5405.) The referee concluded the claim was untimely, and the Workmen’s Compensation Appeals Board upheld the referee's conclusion.

Those passing on the cause have reached different conclusions as to the date of petitioner’s injury for the purpose of calculating the one-year period of limitation. The referee concluded the date of injury was 1965, because that was the time of petitioner’s first disability. The Board concluded the date of injury was 1969, because that was the time of petitioner’s first disability from heart disease. Petitioner argues the date of injury was 1971, because that was the time of his first diagnosed heart attack.

Petitioner’s Medical History

Petitioner retired from police work in 1962 because of a back injury. In November 1965 he consulted Dr. Freidell complaining of constriction of the chest area associated with some skipped heart beats. Dr. Freidell found petitioner quite tense and thought he was in fear of a heart attack. There were no positive physical findings. Results of an electrocardiogram, taken mainly to reassure the -patient, were within normal limits. Dr. Freidell saw petitioner again in September 1966 for substemal tingling associated with dizziness and perspiration. Another electrocardiogram fell within normal limits, and the doctor concluded petitioner did not have myocardial ischemia.