General Accident, Fire & Life Assurance Corp. v. Industrial Accident Commission

CONREY, P. J.

Petitioner is the insurance carrier for Raymond G. Osborne, who was the employer of Hazel Farrell in the employer’s chemical laboratory. Pursuant to application made by the employee the Commission in due course made its award,' based upon a finding that the injury of which she complained was proximately caused by her employment and was a direct result of exposure to the fumes of hydrochloric acid, ammonia and acetic acid in a sunless unventilated basement room; that the injury caused temporary total disability from December 31, 1924, continuing indefinitely. This award' was dated May 8, 1925. Thereafter the employee filed an additional application for adjustment of claim. After hearing thereon the Commission made an amended award of date October 20, 1926, which contained an additional provision requiring that medical, surgical and hospital treatment be furnished to the employee. Thereafter the applicant petitioned for a further hearing and allowance, and the employer and the insurance carrier applied for an order terminating disability and discharging defendants from further liability.

After further hearing and in due course the Commission made its order of September 3, 1929, wherein it was found, in addition to the previous findings, that said injury caused permanent disability consisting of a moderately advanced active pulmonary tuberculosis, the percentage of permanent disability being fixed at 8214 per cent. The award thus finally made provided for the sum of $16.39 weekly beginning January 8, 1925, continuing for 240 weeks, and thereafter a life pension at the rate of $5.61 per week, together with further medical and hospital treatment and nursing. These awards were made against the insurance carrier, the employer being relieved from liability.

Rehearing having been denied by the Commission application was made to this court for writ of review, and the writ was issued, on which return has been duly made.

Petitioner contends that the evidence does not show any permanent disability. Aside from certain testimony of Miss

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Farrell at the last hearing before the Commission, the evidence concerning the nature and extent of disability of the employee consists of reports made by physicians on behalf of the respective parties, and by a physician appointed by the Commission. The position of the respondent on this question is announced by its counsel as follows: “Respondent frankly admits that there is not to be found in the record any positive expression of opinion of a medical expert stating in so many words that the injured employee’s disability is permanent other than the statements of the three doctors testified to by Miss Farrell and hereinafter quoted or that she will not recover from the pulmonary tuberculosis which was active at the time the medical examinations were made and the permanent disability rating issued. On the other hand, there is no medical assertion making any unequivocal statement that she will recover and be restored to industry. The possibility of the continuance of the diseased condition in disabling form for the remainder of life was not ruled out nor does there appear to be any discussion as to the. fact and extent of remaining disability were the tuberculosis to be arrested in the near future.”