Pacific Employers Insurance v. Industrial Accident Commission

ADAMS, P. J.

Petitioner has idled separate petitions for the review of two awards made by respondent Industrial Accident Commission in favor of N. E. Huffman, said awards being based upon an alleged injury to Huffman’s left shoulder on August 23, 1947, and a later injury to his hip and back incurred September 13, 1947, both sustained while he was

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employed by the Winter King Packing Company, for which company petitioner was the insurance carrier.

The award made by the commission for the shoulder injury was for the costs of further medical treatment to cure and relieve the effects of such injury, and reimbursement for his self-procured medical expense to be determined upon the filing of itemized bills and the approval of same by the commission in the event the parties are unable to adjust same.

Regarding the hip and back injury the commission found that it had caused temporary total disability from September 13, 1947, through April 13, 1948, and indefinitely thereafter, entitling applicant to $30 per week exclusive of the waiting period of one week; that he might be in need of further medical treatment and was entitled to have same furnished, and also entitled to payment for self-procured medical expense upon filing of itemized bills, etc.

It is contended here, in the proceeding involving the shoulder injury, that there was no notice of injury as required by law, and that there is no evidence to support a finding that such injury was sustained or that any disability occurred as a result of any such injury.

Answering the first of these contentions respondent calls our attention to testimony of Huffman that after about two weeks’ work lifting boxes of peaches weighing 65 to 90 pounds each, at a rate of one box every one and one-half minutes, and feeding them into a slicer, he developed pain in his left shoulder, and that he then notified his foreman that he was unable to continue such work because of his painful shoulder, and that he was then assigned to work operating a hand truck. This we think constituted sufficient notice of injury to afford his employer an opportunity to investigate the facts and furnish medical treatment if found necessary. At any event failure to give notice is not a bar to recovery unless the employer is prejudiced by such failure, and there is no evidence in the record that Huffman’s employer was prejudiced, though the burden was upon him to show prejudice if it existed. (Lab. Code, § 5403;