Northwestern Pacific R.R. v. Indus. Accident Comm'n

ANGELLOTTI, C. J. Certiorari to review an award of the Industrial Accident Commission in favor of one George Frescos 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, Frescos 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 Frescos 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.” Fetitioner by its answer before the commission claimed the benefit of these provisions. Their effect was to bar the proceeding instituted by Frescos 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 Pac. 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 [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.