Hunt v. Industrial Accident Commission

RICHARDS, J.

The petitioner, who was an employee of the United Railroads, received an injury to his spine on or about June 8, 1918, while in the course of said employment, by being thrown from a street-car upon which he was at the time acting as conductor. Twenty-eight days after the date of his injury he returned to work at his former employment, and received full pay therein for the next several months, when he was discharged by his employer. During the period that he was away from his work by reason of his injuries he received independent medical treatment, and after he returned to work and on or about August 15, 1918, he went to the company’s physician for an examination, and went again three or four times for the same purpose, but received no treatment or medicine on any of those occasions, the company’s physician informing him that the nature of his injuries was such that only time would effect a cure. After his discharge, on or about March 15, 1919, he made a claim for compensation to the claims attorney of his former employer, and was then sent for examination as to his physical condition to its physician, but no medical or surgical treatment was then given. Thereafter, and on March 18, 1919, his application for relief was filed before the Industrial Accident Commission. A hearing was had thereon, after which, upon the applicant’s own testimony showing the foregoing facts, the commission denied his application ■ upon the ground that it had been made too late and was barred under the provisions of the Workmen’s Compensation Act, [Stats. 1917, p. 831]. After a petition for rehearing before the commission had also ¡been denied, the application for a writ of review was presented 'by said petitioner to this court.

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Upon the hearing of said application the petitioner urged as a reason for his contention that the Industrial Accident Commission was in error in holding that his claim was barred by limitation, that the evidence showed the payment or giving of compensation for his injuries on the part of his employer which, under section ll of the Workmen’s Com

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pensation Act, would have extended the time within which his application should be filed. This claim as to the receipt of compensation on the part of the applicant was twofold, his first contention being that when he returned to work for his employer he was still suffering from his injuries, and was not able on that account to fully perform the duties of his position, but that notwithstanding that fact he received full pay for the time that he continued to be in its employ. The applicant, however, failed to show the existence of any agreement or understanding as between himself and his employer to the effect that the full pay which he received through said period, or any portion thereof, was to be in the nature of compensation for his injuries; nor did he show, nor attempt to show, that the work which he performed during that period was either unsatisfactory to his employer or that the compensation which he received therefor was more than his services during that time "were actually worth. In the absence of such showing it cannot be held that the mere fact that the employer permitted the employee to return to his old position at full pay and to continue therein for several months could give rise to a claim that a portion of the pay which he thus received was in the nature of compensation for his previous injuries.