Vanderbilt Mining Co. v. Industrial Accident Commission

TYLER, P. J.

Certiorari

to review an award of the Industrial Accident Commission. It is alleged therein in substance that on January 30, 1924, respondent John A. McFarlane filed an application for adjustment of claim under the Compensation Act (Stats. 1917, p. 831), in which it was alleged that he sustained an injury by slipping on a

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timber while working for Vanderbilt Mining Company at Ivanpah, California, on September 26, 1923, causing abrasion of his right shin and a strain of the right knee. That evidence taken upon the hearing showed that McFarlane had worked for several days following this injury and that he had been treated for superficial injury of the leg by a Dr. Brook of Las Vegas, Nevada, but after about two weeks’ time he went to Bakersfield and placed himself under the care of doctors of that city. That shortly after the first day of January following, the insurance carrier had him removed to Los Angeles, where a complete examination was made by specialists on behalf of the company, and also by a referee doctor appointed by the Industrial Accident Commission; that the medical evidence showed that McFarlane was suffering from a Charcot joint of the knee caused by syphilis; that a Charcot joint is one evidence of the disease known as “tabes dorsalis,” often referred to as “locomotor ataxia.” Thereafter findings and award were issued April 12, 1924, by which it was determined that McFarlane had scraped the inner aspect of his right leg from the knee to the ankle, approximately precipitating a previous diseased condition resulting in a Charcot knee. As a result of this injury the Commission found that disability had continued from October 5, 1923, to and including February 6, 1924, which on maximum earnings amounted to $348.16 compensation ; that it was necessary to do a fixation operation of the right knee-joint, together with anti-syphilitic treatment. It was further found that the proper apportionment between the disease and injury was to award applicant certain medical and surgical care without compensation from and after February 6, 1924, as said injury might result in permanent disability which in such event would be rated subsequently upon request and the filing of medical reports. This award became final. Thereafter McFarlane refused to accept the operation on his knee, and the Commission found the refusal justified. McFarlane then filed a request for a permanent injury rating. The Commission filed its decision upon this petition September 3, 1924, in which it held the condition to be permanent, consisting of what is technically known as Charcot knee, and it further found that the proportion of permanent disability attributable to the injury, and not to the pre-existing disease, had been fully compen