Travelers Insurance v. Industrial Accident Commission

WARD, J. This is a petition for a writ of review of the findings and award rendered by the Industrial Accident Commission in favor of Walter Lindsay, one of the respondents herein.

[644]On May 19, 1937, respondent Lindsay filed a petition with respondent commission for adjustment of a claim for injuries arising out of and in the course of his employment by Plat & Weber operating an automobile repair shop. The case was submitted before the commission but no decision was rendered until January, 1939, at which time findings and award were made in which the commission held that the injury occurred on June 26, 1936. Petitioner herein, Travelers Insurance Company, requested a rehearing, contending that the findings did not support the award and that the claim was barred by the statute of limitations. Thereafter respondent commission granted the petition for rehearing and the case was resubmitted without further evidence.

The finding that Lindsay “while kneeling and removing an axle from a truck . . . sustained an injury to his left knee” may not be disturbed. Competent and substantial evidence appears to support this finding. (Tartar v. Industrial Acc. Com., 191 Cal. 703 [218 Pac. 39]; Newton v. Industrial Acc. Com., 204 Cal. 185 [267 Pac. 542, 60 A. L. R. 1279].)

In the findings on rehearing, the commission found as follows: ‘1 The first and only treatment was a strapping of the knee done by Dr. S. B. Van Dalsem upon instruction of the employer on February 12, 1937. It is found that the injury herein, within the connotation of that word as used in the Labor Code, occurred on date of first examination, December 7, 1936, and that the injury arose out of and occurred in the course of the employment.” This finding is incorrect. December 7, 1936, was the date of the first examination by Dr. Lionel D. Prince. However, an examination by Dr. S. B. Van Dalsem was admittedly made prior to that date, hence could not have been on February 12, 1937. The application of Lindsay for adjustment of claim designates November 15, 1936, as the date of “medical or surgical treatment” rendered by Dr. S. B. Van Dalsem. During oral argument it was conceded that this last date was correct. If this is true, the claim is barred by the provisions of section 11 of the Workmen’s Compensation, Insurance and Safety Act and sections 5404 and 5405 of the Labor Code. Subsequent to the accident, wages were paid, but not as compensation nor in lieu [6456]