Pacific Indemnity Co. v. Industrial Accident Commission

WHITE, J. Petitioner herein was the workmen’s compensation insurance carrier for Northrop Aircraft, Incorporated, employer of respondent Blanche G. Wimmer at the time that she sustained an injury arising out of and in the course of her employment. The employee’s injury was incurred in July, 1943. In May of 1944, she filed an application for adjustment of claim, alleging that her injury was sustained in the following manner: “Moving office furniture, desks and chairs. Pell off, knocking into jig as they hit me, resulting in right arm lacerations, and sprains in lower part of back and hip.” In December, 1944, the commission issued its findings and award, finding that she sustained an injury arising out of and in the course of her employment, but that her claim was barred by the six months’ statute of limitations (Lab. Code, § 5405(a)). Applicant’s petition for rehearing being denied by the commission, she sought a writ of review in this court, which writ was denied without opinion in May, 1945.

On April 11, 1946, the applicant filed another application for adjustment of claim with the commission, alleging that the nature of the claim was “determination of whether the original injury had caused new and further disability.” On September 17, 1947, the commission issued its ‘ Order Granting Petition to Reopen and Decision on Petition to Reopen,” and [492]therein found that while the claim for temporary disability was barred by the statute of limitations, the claim for permanent disability, being a claim for a new and further disability, was not so barred, and awarded the applicant $1,825 on the basis of a permanent disability of 18^4 per cent. It is this award which petitioner seeks by the present proceeding to have annulled.

At the time she sustained her injury the applicant did not receive medical treatment from a doctor, but reported to the employer’s hospital and received first-aid treatment from a nurse for her injured arm. She received no treatment for her bruised thigh or hip, and was never paid any disability indemnity. After her injury in July applicant continued to work until September, and thereafter worked intermittently until some time in January, 1944. She was not examined by any physician on behalf of the employer or the insurance carrier until November 3, 1944, after her original application had been filed.

Upon the filing of applicant’s second application for adjustment of claim, based on “new and further disability,” the commission reopened the proceedings and found that the original injury had resulted in a permanent disability, for which compensation was awarded, although any claim for temporary disability was barred by the six months’ statute of limitations. Upon petition for rehearing the insurance carrier contended that because her original application was filed more than six months from the date of injury and no compensation benefits, either by way of disability indemnity or medical treatment, were furnished, her claim for any disability indemnity, whether for original temporary, new and further temporary, or permanent disability, was barred; and further, that, regardless of whether the first-aid treatment given at the time of injury by a nurse constituted “medical treatment” and therefore a compensation payment or benefit under section 5405 of the Labor Code, the commission by its original decision and the District Court of Appeal by denying review determined that no “medical treatment” had been furnished. That no “medical treatment” had been furnished is now the law of the case; that therefore the applicant had never received any “benefits” under the Workmen’s Compensation Act; and that in the absence of the furnishing of such “benefits,” whether pursuant to an award or voluntarily, the applicant may not, after her claim based on the original injury has been barred by the six months’ statute of limita