American Can Co. v. Industrial Accident Commission

DRAPER, P. J.

Petitioner, a self-insured employer, seeks review of a decision of respondent commission finding that employer is estopped to assert the statute of limitations.

While at work December 11, 1956, applicant employee suffered a severe heart attack. The director of the plant medical facility, Dr. Holaday, examined applicant, considered the condition nonindustrial, and so informed applicant, who gave the name of his personal physician. That doctor arranged for applicant’s admission to a hospital and for his care by a specialist, Dr. Leishman. Dr. Leishman had no connection with petitioner, and treated applicant solely as his own patient. Dr. Leishman reported, upon an application for unemployment compensation disability and health insurance, that applicant’s condition was without industrial connection.

Applicant was discharged from the hospital January 4, 1957. Sometime between that date and March, Dr. Leishman decided that applicant’s condition had been caused or contributed to by his work. He does not recall advising Dr. Holaday of this change of opinion, but the latter testified that Dr. Leishman did inform him that he felt that applicant needed financial help, that Dr. Leishman “was going to see that (applicant) got it,” and wanted applicant “to carry the case further.” Dr. Leishman continued to treat applicant. Applicant filed no application for compensation until October 3, 1958. He asserted no earlier claim to petitioner or Dr. Holaday. Applicant testified that his union business agent recommended that he file a claim, that in September he consulted one attorney who did not accept the case, and that on September 22, 1958 he first consulted his present counsel, who filed the claim almost 22 months after the heart attack occurred.

A referee found that applicant’s claim was barred by the statute of limitations. Reconsideration was granted, and the commission found that the employer “acting by and through

[278]

its authorized agent, fraudently

[sic]

represented to or concealed from said applicant the existence of facts which would establish an industrial cause of action in favor of said applicant and against said defendant; and that by reason of said misrepresentation or concealment applicant was not aware of his cause of action and did not file his claim herein until after the statutory limitations period had run; that upon ascertaining the existence of such facts which would establish an industrial cause of action, ’ ’ applicant promptly filed his claim.