Associated Indemnity Corp. v. Industrial Accident Commission

FOX, J. pro tem. Thomas J. Napier was employed as a carpenter in July, 1943, at Bakersfield, California, by the Superior Oil Company. In May, 1944, while so employed [822]he was assisting in lifting a heavy timber when he was seized with a sudden onset of pain across his upper abdomen. This was accompanied by a feeling of nausea. Swelling was observed in the abdominal region in a day or two but this disappeared in about two weeks. Except for an hour’s rest Mr. Napier was not forced to stop working. He did not consult a physician. He did, however, experience the recurrence of pain in this same area from time to time during the ensuing months. By July 16th the condition had become so annoying that he took a week’s vacation. Upon his return after vacation, he felt he could not do the heavy work assigned to him and so informed his boss. Since lighter work was not provided he quit. Mr. Napier was ill and took it easy until about August 26th when he entered the employ of the Santa Fe Railroad Company. The first night on this new job, he “could hardly make it” according to his testimony. The second night he was pulling about 10 feet of an inch and a quarter water hose out from under a ear. It caught on the rail and he “kind of jerked it.” As he straightened up pain hit him in the stomach and a bulge in the epigastric region recurred. On August 30th Dr. Joe Smith examined Mr. Napier and found that he had a ventral hernia. On September 2d Dr. Morrison, chief surgeon of the Santa Fe, operated on Mr. Napier for this condition. The operation left Mr. Napier disabled for eleven weeks for which the commission awarded him compensation in the amount of $317. In his report Dr. Morrison says “The operative findings indicate that this hernia has been present for several months. ...” Prior to his employment by the Santa Fe' Mr. Napier was given a preemployment physical examination by Dr. R. M. Jones who reported “Abdomen normal.”

Mr. Napier’s application was not filed with the Industrial Accident Commission until January 12, 1945. At all times herein material the petitioner was the compensation insurance carrier of the Superior Oil Company.

Petitioner makes two contentions: (1) that the evidence is insufficient to support the finding that Mr. Napier “sustained a hernia while in the employ of the Superior Oil Company,” and (2) that the claim is barred by the statute of limitations. Neither of these contentions is sound.

The argument on the first proposition is based on two circumstances: (1) the report of Dr. Jones to the effect that he did not discover a hernia on his external examina