Kemper v. Industrial Accident Commission

MELVIN, J.

Petitioner sought a review of a judgment made by respondents, as members of and constituting the Industrial Accident Commission of the state of California, denying to such petitioner any compensation for certain injuries which the commission found he had sustained in the course of his employment on or about the twenty-ninth day of September, 1915. An order to show cause was issued and a hearing was duly had before this court.

On the date mentioned the applicant received an injury to his hand by scratching it upon a piece of strap iron. Infection set in, but in October he returned to his employment and worked from that time until nearly the end of November. In December he was afflicted with what was believed to be metastatic infection, and he quit work until the third day of January, 1916, when he returned to his employment and remained two weeks. Subsequently he went to a hospital and was treated for serious illness for a long time. An application for adjustment of the controversy was not filed until the fifth day of March, 1917, and the Industrial Accident Commission found that under the limitation provided by section 16 of the Compensation Act [Stats. 1915, p. 1085], his cause of action was barred. The commission found that under the facts the applicant would have been entitled to compensation but “inasmuch as he failed to file any application at all until more than six months from the date when disability occurred, this commission is without jurisdiction to extend any relief in the premises. ’ ’

The petitioner admits that his claim was not filed within the time prescribed by the statute, but insists that the time limit was waived by the defendants below. Respondents contend, however, that conceding everything claimed by petitioner, he did not rely upon any assurances of the defendants after October, 1916, and that therefore he is not entitled to claim estoppel after that date. The applicant

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asserts that he relied upon a letter written by Mr. Stoekwell of the Aetna Life Insurance Company, his employer’s insurance carrier, and also upon the assurances given him by Mr. Nevin, superintendent of Nathan-Dóhrmann Company, his employer. It appears virtually without contradiction that Mr. Nevin, at the suggestion of Mr. Kemper, took up with the Insurance Company the matter of a waiver of the statute of limitations and such a letter was written under date of September 21, 1916, and was as follows: