Johnson v. Industrial Accident Commission

[839]

FOX, P. J.

In her petition for writ of review petitioner seeks to have annulled the order of the Industrial Accident Commission denying her application for compensation on the ground that it was barred by the statute of limitations.

Petitioner was a recreational director in the employ of the city of Los Angeles. In the course of her employment petitioner, on July 21,1955, drove some 12 girls in a station wagon to the beach for an outing. Marsha Wolpin was one of them. The group left about midmorning and returned around 3 o’clock in the afternoon. The outing included a picnic lunch, at which food was passed back and forth. Although Marsha participated normally in the activities of the outing, she later complained to her mother of “having been cold and uncomfortable all day.” This was the last date that petitioner had any contact with her. On July 31, 1955, Marsha was hospitalized for polio. On July 28, petitioner took a group of approximately 20 girls on an overnight camping trip. The next morning she woke up with a “very sore throat and chills.” She continued to work to and including August 3rd. She consulted a doctor on August 8th and on August 13 she entered the General Hospital, at which time she was informed she had polio. Her doctor expressed the opinion that her polio “was due to her employment. ” It was around the Christmas season, 1955, that petitioner advised the city of her claim that her illness was industrially incurred. Her husband, however, had told one of her supervisors of this claim early in September.

On August 2, 1956, petitioner filed her application for compensation benefits, alleging that “while conducting children’s recreational activities” she had contracted polio. By amendment to her petition she alleged the date of injury was July 21,1955.

The precise question in this matter is whether the statute of limitations, which is one year from “the date of injury” (Lab. Code, § 5405, subd. (a)), had run on petitioner’s claim when she filed her application with the commission for benefits under the Workmen’s Compensation Act. This, in turn, depends on whether or not her illness was an occupational disease. If it was an occupational disease her claim was filed in time, since the last day petitioner worked was August 3, 1955, and her claim was filed August 2, 1956.