Fireman's Fund Indemnity Co. v. Industrial Acc. Com'N

• Decision Date: 04 March 1952
• Citation: Fireman's Fund Indemnity Co. v. Industrial Acc. Com'N, 241 P.2d 299 (Cal. App. 1952)
• Court: California Court of Appeals
• Parties: FIREMAN'S FUND INDEMNITY CO. v. INDUSTRIAL ACC. COMMISSION et al. * Civ. 15103.

Page 299

241 P.2d 299

FIREMAN'S FUND INDEMNITY CO. v. INDUSTRIAL ACC. COMMISSION et al. ^*

Civ. 15103.

District Court of Appeal, First District, Division 1, California.

March 4, 1952.

As Modified on Denial of Rehearing April 3, 1952.

Hearing Granted May 1, 1952.

Keith, Creede & Sedgwick, San Francisco, for petitioner.

Edmund J. Thomas, Jr., T. Groezinger, San Francisco, for respondent Industrial Acc. Commission.

Leonard, Hanna & Brophy, San Francisco, for Industrial Indemnity Co.

BRAY, Justice.

This petition for review of an award of the Industrial Accident Commission raises the question: where the accumulated effect of strains and tensions over a period of approximately two months, due to the employment, precipitated a pre-existing heart condition into an active disabling condition, can an insurance carrier which insured the employer during the early portion of that period only be held liable with the later carrier?

Facts.

There is no question of the compensability of the claimant's condition. The controversy is solely over the question of whether petitioner can be held jointly and severally liable with another insurance carrier. Frank C. Gregory, aged 65 years, was employed by the Waterfront Employers Association as Port Manager. On February 9, 1949, he suffered a cerebral vascular accident ¹ resulting in partial right side paralysis. February 8, 1950 (one day less than one year from the stroke), he applied to the commission for compensation. The evidence shows that from December 5, 1948, to the date of the stroke (65 days) Gregory worked 11 hours per day, in an atmosphere of strain and tension, trying to conclude contract negotiations with certain unions. This work was tense and trying. Dr. Benson reported that long hours of work involving nervous tension could aggravate an existing hypertension which in turn could, and in this case did, produce damage to the blood vessels and precipitate a cerebral vascular accident in one who had a predisposing disease of the blood vessels. Dr. DeSilva stated that Gregory was a hypertensive and arteriosclerotic elderly man and that there was nothing in his work of negotiating with the unions which aggravated his condition. Dr. Lewis, too, felt that the stroke was uninfluenced by his general employment history. However, the commission found that Gregory's employment during the period from December 5 to February 9 'subjected applicant to repeated physical and mental strains and tensions which said strains and tensions became excessive in cumulative effect and precipitated cerebral vascular accident on February 9, 1949.' It then held that the injury arose out of and was incurred in the course of employment. The opinion of Dr. Benson and the testimony of Gregory and others as to the character of the work constitutes substantial support for this finding.

During the period of Gregory's employment up to January 25, 1949, the employer's insurance carrier was petitioner, Fireman's Fund Indemnity Company. On that date the employer changed carriers and Industrial Indemnity Company became its carrier. The commission made an award against the two carriers jointly and severally.

Contentions.

Petitioner contends that since it ceased to insure the employer January 25, 1949, and Gregory did not receive his stroke until approximately 15 days thereafter, February 9, 1949, and moreover did not file his application to the commission until February 8, 1950, more than one year after petitioner contends its liability terminated, the commission had no power to hold it liable with the other carrier. Respondents do not contend that the situation here constitutes 'an occupational disease' under section 5411 of the Labor Code. They do contend, as does the Industrial Indemnity Company, that there was but one single injury, although it occurred over a period of weeks, and that the statute of limitations, if it can be raised, runs from the last date or time of suffering of the injury. Section 5405 of the Labor Code fixes the period within which proceedings may be commenced for the collection of benefits as one year from 'the date of injury' which according to section 5411, except in cases of occupational disease, 'is that date during the employment on which occurred the alleged incident or exposure, for the consequences of which compensation is claimed.'

We start with the well established rule, 'Where an employee suffers a heart attack brought on by strain and overexertion incident to his employment the injury or death is compensable, even though the idiopathic condition previously existed, and no traumatic injury is necessary. [Citing cases.]' Lumbermen's Mutual Casualty Co. v. Industrial Accident Comm., 29 Cal.2d 492, 496, 175 P.2d 823, 826. In the same case, 29 Cal.2d at page 498, 175 P.2d at page 827, the court held, where the employee had become partially paralyzed, '* * * the evidence does show that the accumulated effects of the overwork ultimately culminated in the disability that manifested itself on February 8, 1945. The injury, the...