State v. Industrial Accident Commission

WOOD (Fred B.), J. June 26, 1951, an employee sustained an industrial injury which resulted in total loss of sight in his right eye. In view of a previous injury to his left eye, the Subsequent Injuries Fund was joined as a party.

October 6, 1952, the respondent commission made awards against the Subsequent Injuries Fund and the employer’s insurance carrier predicated upon a disability of 19.5 per cent [552]on account of the last injury and a disability of 100 per cent as a result of his last injury and his prior disability.

June 15, 1956, the Subsequent Injuries Fund petitioned the commission for redetermination of the amount of disability and for discharge from liability, alleging substantial improvement1 in the condition of the employee’s left eye, resulting in a combined total disability of but 44 per cent. After a hearing, the commission, on March 1, 1957, granted the petition, predicated upon a finding that the combined total disability is only 38 per cent.

April 12, 1957, upon reconsideration, the commission vacated its order of March 1, 1957, and affirmed and adopted its award of October 6,1952, for lack of jurisdiction to modify an award after the lapse of five years from the date of the injury. On May 23, 1957, the fund’s petition for reconsideration of the order of April 12 was denied.

The fund’s petition for modification was filed before but the order granting it was made after the expiration of five years from June 26, 1951, the date of the injury. Upon the expiration of that five-year period the commission lost jurisdiction to modify its award. (Lab. Code, § 5804.) Asa practical matter, in view of the 10-day notice of hearing requirement of section 5502 of the Labor Code, a petition filed on the eleventh day from the very end of the five-year period (as was this petition) really gave the commission no time to modify while it still had jurisdiction to modify its award of 1952.

This question was fully considered and decided in Sutton v. Industrial Acc. Com., 46 Cal.2d 791 [298 P.2d 857], There is no need for ns to repeat or to elaborate upon the analysis which was therein so clearly and cogently made and expressed.2 [553]