Railroad Co. v. Industrial Acc. Com.

Certiorari to review an award of the Industrial Accident Commission in favor of one George Prescos against petitioner of $722.10, being $8.30 per week for 87 weeks.

By reason of an accident in the course of his employment by petitioner, and arising out of said employment, Prescos suffered complete loss of vision of the left eye, and became entitled upon proper application therefor to receive the amount of compensation awarded him. The accident occurred on December 1, 1914, and the proceeding before the commission was not instituted until December 23, 1915. The only amount ever in fact paid to him by petitioner was $18 paid on January 5, 1915. The claim of petitioner here is that at the time the proceeding was instituted before the commission the right of Prescos to so proceed was barred by the provisions of section 16 of the Workmen's Compensation Act which provides that "unless compensation is paid or an agreement for its payment made within the time limited in this section for the institution of proceedings for its collection, the right to institute such proceedings shall be wholly barred," and that proceedings for the collection of such a benefit as is here involved "must be commenced within six months from the date of the accident, except as otherwise provided in this act," and that "the payment of the disability indemnity, . . . or any part thereof, or agreement therefor, shall have the effect of extending the period within which proceedings for its collection may be commenced, six months from the date of the agreement or last payment of such disability indemnity, . . . or any part thereof." Petitioner by its answer before the commission claimed the benefit of these provisions. Their effect was to bar the proceeding instituted by Prescos unless there was some "agreement" for the payment of the compensation under which it may be held that the time was extended. (See Miller v.Industrial Accident Commission, 172 Cal. 473, [156 P. 1033].)

It is urged that the award cannot stand in the absence of an express finding by the commission on the issue made as to this question. There is no express finding in regard to *Page 654 this matter. But petitioner failed to make any such objection in its petition to the commission for a rehearing, and therefore must "be deemed to have finally waived" the same. (Workmen's Compensation Act, sec. 81 [Stats. 1913, p. 315].) The award must be considered upon the assumption that the commission concluded that there was an "agreement" for the payment of the compensation as, in fact, it said in its order denying a rehearing, and the only question for us is whether there is enough in the evidence to furnish legal support for such a conclusion.

Prescos is an illiterate Greek, living in Humboldt County, where the accident occurred. One Johnson conducted for him his correspondence with petitioner railroad company relative to the payment of compensation, concerning his right to which there appears never to have been the slightest question. In March, 1915, application was made on his behalf to the rating department of the commission for information as to the amount of compensation to which he was entitled. A letter was sent him by such rating department on March 29, 1915, informing him that he was entitled on the facts stated to $8.30 per week for 87 weeks. The letter states that a copy was sent to his employer and a copy to the Eureka office of the commission. Prescos and Johnson testified that about this time he (Prescos) received a letter from Mr. C.A. Coombs, division engineer of petitioner, to the effect that he was to receive $8.30 per week for 87 weeks. Johnson testified that in this letter it was promised that the company would pay this. Subsequently Johnson for Prescos wrote Mr. Coombs about the matter, and in a letter in reply dated June 22, 1915, at Fort Seward, and addressed to Johnson at Garberville, Mr. Coombs said: "Referring to accident happening to Mr. George Prescos, I wish to advise that the Industrial Accident Commission has decided that he is entitled to a compensation of $8.30 per week for 87 weeks. We desire to know whether it will be agreeable to Mr. Prescos to accept payments in monthly vouchers and where should voucher be sent so as to reach him. We have been endeavoring to get this information from Mr. Prescos, but to date he has refused to give us this data, so that vouchers may be issued to him. All vouchers are issued by our San Francisco office. We have none here for him, as he has refused to inform us where they should be sent." In reply, Johnson *Page 655 said that he had seen Prescos, who was working some distance out of town, and that he had left the matter with him (Johnson) to settle with Coombs, that he (Prescos) said that he is "satisfied for company to give him, but he wants to get that money all at one time, that is the full amount in one payment," and that he would like to be allowed to continue to work for the company because, on account of the loss of sight he could not get a job elsewhere. As late as August 6, 1915, Mr. Coombs, as division engineer, by letter of that date said: