Beverly v. Fairmont Hotel

KNIGHT, J.

Petitioner brought this proceeding in

certiorari

to have annulled an award made by the Industrial Accident Commission denying his application for compensation upon the ground that the same was barred by the provisions of section 11 of the Workmen’s Compensation Act of 1917 (Stats. 1917, p. 841).

[568]

The record discloses the following facts: Petitioner on February 8, 1921, while employed as a stationary engineer at the Fairmont Hotel in San Francisco, sustained an injury to his back by falling from a tank. The State Compensation Insurance Fund was at that time the insurance carrier for said hotel and it immediately assumed liability, furnished petitioner with medical treatment and paid him compensation until he was discharged from further medical treatment on April 30, 1921. Petitioner continued in the employ of said hotel, but for some time previous to October 28, 1925, complained of the condition of his back. On that date the paymaster of said hotel, named Bishop, sent him to Dr. S. N. Jacobs for medical treatment. The latter had no connection with the State Compensation Insurance Fund, which had ceased to be the insurance carrier for said hotel, but was in the employ of the company then carrying the insurance for said hotel. In response to the request made by Bishop, Dr. Jacobs treated petitioner several times a month, and during the course thereof, to wit, on February 23, 1926, petitioner filed the present application with said Commission for an adjustment of his claim, at the same time continuing in the employ of the hotel until March, 1926, when he voluntarily quit because of his physical condition. He remained under the care of Dr. Jacobs, however, until June, 1926.

Petitioner’s application for compensation is based upon the ground that the original injury had caused new and further disability. Section 11 (c) of said Workmen’s Compensation Act provides in effect that such an application shall, in any event, except where the employee is “totally disabled and bedridden as a result of his injury” be filed by the injured employee and acted upon by the Commission within 245 weeks after the happening of the original injury. Said action in this respect reads as follows: “ . . . nothing contained in this section shall be construed to bar the right of any injured employee to institute proceedings for the collection of compensation within two hundred forty-five weeks after the date of the injury upon the grounds that the original injury has caused new and further disability; and the jurisdiction of the commission, in such cases, shall be a continuing jurisdiction at all times within such period.” As shown by the undis