Ocean Accident & Guarantee Corp. v. Industrial Accident Commission

EDMONDS, J. In this proceeding, a decision of the Industrial Accident Commission by which disability indemnity was awarded to an employee of C. W. Caletti, doing business as C. W. Caletti & Company, is challenged by the petitioner, which the commission found was the employer’s insurance carrier at the time the compensable injury was received. The record of the proceedings resulting in the decision and award are before this court in response to a writ of review.

The facts concerning the controversy are not disputed. It appears that in 1935 Eugene Szanik was working as a bridge-builder for Mr. Caletti. He received an injury to his arm for which his employer provided no medical attention. Thereafter he was unable to work and the employer termi[118]nated his services. He procured medical treatment and did nothing for a number of months. More than six months after the injury he filed a claim before the Industrial Accident Commission against C. W. Caletti & Company. The employer was given notice of this claim but paid no attention to it. Later the commission held a hearing, at which the applicant appeared in person without counsel and introduced evidence. Following this hearing, after notice of intention to issue an award had been served upon the parties, the commission made a decision and award against C. W. Caletti & Company in favor of Szanik for a total amount of $1240.84.

Four months after the award was made the employer filed with the commission an application for its modification to include the insurance carrier. This application, filed on February 9, 1937, recited that eight days earlier Szanik had procured a judgment and execution upon the award of the commission in the Superior Court of Mendocino County, and that execution had been levied upon the employer’s bank account. It also alleged that at the time the employee was injured C. W. Caletti & Company had a policy of workmen’s compensation insurance issued by the petitioner, and that if the injury to Szanik is compensable the insurance carrier is liable therefor. The application expressly stated that from time to time the respondent employer received notices of the proceedings before the Industrial Accident Commission and a copy of the award, but that he did not refer the matter to an attorney nor make any inquiry concerning the ease because he assumed the insurance carrier was attending to it. The employer asked that the commission make an order rescinding the award and staying execution of the judgment. Upon the filing of this petition and an undertaking the commission ordered execution stayed pending a final determination of the matter.