United States Fidelity & Guaranty Co. v. Industrial Accident Commission

THE COURT.

We are satisfied with and hereby adopt the following portions of the opinion prepared herein by Mr. Justice Sturtevant of the district court of appeal:

“This is an application to have an award made by the defendant Commission annulled.

“On December 5, 1922, John Avila filed with the Commission an application for adjustment of claim. In that application he set forth that prior to the 29th day of June, 1922, he was employed by the Associated Milk Producers at Los Banos; that on the 29th day of June, 1922, in the course of his employment he was lifting heavy sacks of casein and strained himself causing a hernia; that he purchased a truss and returned to work on July 1, 1922; that he continued to work until July 7, 1923; that on the date last mentioned his trouble had increased to such an extent that he quit work; that during the same month he was operated on for the hernia; that he returned to work September 5, 1923; that on October 22, 1923, the above mentioned injury became aggravated and he was compelled to quit work and that he lost five months’ time to date of said application. In his application the claimant further set forth that he notified his employer of the injury received on the 29th day of June, 1922, and that he consulted Dr. Jadarola and Dr. Sprague who attended him for the injury received; that Dr. Eaves performed the operation above mentioned and that Dr. Eaves was paid for the operation by the employer; that neither the hospital bill, nor Dr. Jadarola, nor Dr. Sprague have been paid and that other sums have not been paid for medicines. The application also set forth that the employee was receiving $120 a month payable monthly and that he worked seven days a week. The application was answered by this petitioner. In the answer the petitioner alleged that it was the insurance carrier and as such appeared for the purposes of the case and asked to be substituted in the place of' the employer. In its answer the insurance carrier, as the defendant, denied that the applicant was injured in the course of his employ

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ment with the employer on or about the 29th day of June, 1922; admitted that the applicant was in its employment on the date mentioned and was receiving $120 a month seven days per week. The defendant also denied that bills were incurred at St. Mary’s Hospital, or that doctor bills were incurred as above stated. In their answer they also set forth: ‘As a separate and affirmative defense to the application herein, defendants allege that more than six months have elapsed between the time of the alleged injury on June 29th, 1922, and the time of the filing of the application herein, and by reason thereof the right of the applicant to file application for adjustment of claim herein is wholly barred, as provided by Section 11 of the California Workmen’s Compensation, Insurance and Safety Laws of the State of California.’ (Stats. 1917, p. 841.)