Hooker v. Workmen's Comp. Appeals Bd.

• Decision Date: 14 January 1974
• Citation: 111 Cal.Rptr. 766,36 Cal.App.3d 698
• Court: California Court of Appeals Court of Appeals
• Parties: James R. HOOKER, Petitioner, v. WORKMEN'S COMPENSATION APPEALS BOARD et al., Respondents. Civ. 31386.

Page 766

111 Cal.Rptr. 766

36 Cal.App.3d 698

James R. HOOKER, Petitioner, v. WORKMEN'S COMPENSATION APPEALS BOARD et al., Respondents.

Civ. 31386.

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

Jan. 14, 1974.

Donohoe, Reidy & Jones, San Francisco, for petitioner.

Cantrell & Green, Richard J. Cantrell, Long Beach, for amicus curiae.

T. Groezinger, James J. Vonk, P. M. Miyamoto, San Francisco, for Dept. of California Highway Patrol.

SIMS, Associate Justice.

A writ was granted in this proceeding to review an opinion and decision after reconsideration of the respondent Workmen's Compensation Appeals Board, which set aside, on the ground petitioner's application was barred by the statute of limitations, so much of a referee's aware in his favor as awarded him further medical treatment, temporary disability indemnity at the maximum rate from a date one year prior to the filing of his application to a date and in an amount to be adjusted by the parties or upon further petition; and permanent disability indemnity in the sum of $8,925.00 payable at the rate of $52.50 per week commencing January 10, 1971 for a period of 170 weeks, less allowed attorney's fees of $892.00. An award of $185.00 medical-legal costs was affirmed. Petitioner contends that the opinion and decision after reconsideration of respondent board erroneously applies the provision of Labor Code section 5405 to bar his claim, in the light of the provisions of sections 3208.1, 3208.2, 5303, 5411 and 5412 of the code. ¹

It is concluded that the respondent board erred in finding that an award of further medical treatment, temporary disability which was incurred within one year prior to the filing of the application, and permanent disability was barred by the statute of limitations. The writ should be granted and the matter must be remanded to respondent board to determine whether or not the award of permanent disability was excessive, as requested in the petition for reconsideration, filed by the employer and its adjusting agency.

The uncontradicted facts as revealed by the record before the referee and the board show that the petitioner who was born April 24, 1927, was employed by the respondent Department of the California Highway Patrol as a state traffic officer at various locations in the state between July 6, 1954 and June 19, 1970, at a rate of pay which would entitle him to maximum compensation benefits; that in March or April of 1962 he first suffered a dizzy spell; that he sought medical treatment for dizziness and headaches and his family doctor diagnosed it as sinus trouble when he first consulted him; that in 1967 the doctor indicated it probably was a combination of his job and sinus trouble and sent him to an allergist; that the allergist determined that his problems were not connected with his sinus and sent him to a neurologist, who in turn, concluded in 1968 that the employee's complaint was a tension state which in part was due to his work situation and asked him whether he had thought about changing his job; that between 1967 and June 19, 1970, the employee had used up 159 hours of sick leave in connection with his problem; that his last absent request was on the latter date, ² although there might have been a few other hours lost since that date and before the hearing March 1, 1971; that at his request his job was changed to counter work in the office of the patrol and he no longer performed any road patrol work; that his application was filed September 14, 1970; and that, as stipulated, his condition became permanent and stationary as of January 2, 1971.

On those facts the referee made the award which was set aside by the board. The board did find, however, that the employee sustained injury arising out of and occurring in the course of this employment, but that his claim was barred by the statute of limitations.

The applicant and petitioner contends that in cumulative injury cases the statute of limitations does not commence to run until the later of either the last day of exposure to the causative employment activities or the onset of compensable disability; that section 3208.1 was enacted to clarify the earlier law which so provided; and that it is unreasonable to compel an employee to file a claim for each employment suffered symptom on paid of losing any right to recover for a subsequent more serious injury arising from the cumulative effects of his exposure. Respondent insists that the applicant's claim is barred by the provisions of section 5405 and that section 3208.1 gives him no greater rights.

I

At all times material to this case, or to the interpretation of the application decisions, the basic statute of limitations has been that found in section 5405--'one year from . . . the date of injury.' In Fireman's Fund Indem. Co. v. Ind. Acc. Com. (1952) 39 Cal.2d 831, 250 P.2d 148, the court enunciated the following rule concerning a cumulative or continuous injury: 'If the strain and tension to which Gregory was subjected constituted one continuous injury, the statute of limitations did not begin to run until the last exposure to the causative force. The Legislature has laid down the rule that the limitations period is to run from the time of the exposure. Labor Code, § 5411. In the case of a continuous injury this can only mean the time of the last exposure. To require the employee to file his claim within a limited time from the first exposure would be unreasonable. After a single exposure the employee might be totally unable to notice that a deleterious effect has taken place. Only after extended exposure may the effects become noticeable. Consequently, it should only be after the exposures constituting the continuous injury have been concluded that the period of the statute of limitations commences to run.' (39 Cal.2d at p. 834, 250 P.2d at p. 150. See also Fruehauf Corp. v. Workmen's Comp. App. Bd. (1968) 68 Cal.2d 569, 574, 68 Cal.Rptr. 164, 440 P.2d 236; Dow Chemical Co. v. Workmen's Comp. App. Bd. (1967) 67 Cal.2d 483, 493--494, 62 Cal.Rptr. 757, 432 P.2d 365; Aetna Cas. & Surety Co. v. Workmen's Comp. Appeals Bd. (1973) 35 Cal.App.3d 329, 340--341, 110 Cal.Rptr. 780; Chavez v. Workmen's Comp. Appeals Bd. (1973) 31 Cal.Ap.3d 5, 11--12, 106 Cal.Rptr. 853; State Comp. Ins. Fund v. Workmen's Comp. App. Bd. (1969) 1 Cal.App.3d 812, 817--818, 82 Cal.Rptr. 102; Miller v. Workmen's Comp. App. Bd. (1968) 258 Cal.App.2d 490, 495--496, 65 Cal.Rptr. 835; De Luna v. Workmen's Comp. App. Bd. (1968) 258 Cal.App.2d 199, 203--204, 65 Cal.Rptr. 421; Peter Kiewit Sons v. Industrial Acc. Com. (1965) 234 Cal.App.2d 831, 836, 44 Cal.Rptr. 813; Argonaut Ins. Co. v. Industrial Acc. Com. (1964) 231 Cal.App.2d 111, 116--118, 41 Cal.Rptr. 628; Beveridge v. Industrial Acc. Com. (1959) 175 Cal.App.2d 592, 594--595, 346 P.2d 545; and cf., fn. 3 below.)

Subsequently in Fruehauf Corp. v. Workmen's Comp. App. Bd., supra, 68 Cal.2d 569, 68 Cal.Rptr. 164, 440 P.2d 236, the court likened injuries resulting from continuous minor traumas which caused disability to the injuries resulting from occupational diseases. It held that the running of the statute of limitations was governed by the provisions of section 5412 (see fn. 1 above), and that as a result, under provisions of liberal construction (§ 3202), an employee who suffered a cumulative disability prior to the last date of exposure, but who did not discover the causal connection between his disability and the employment activities until three months after those activities had terminated, could apply for benefits because the 'date of injury' would be demed the date that he discovered that said disability was caused by his prior employment. (68 Cal.2d at pp. 576--577, 68 Cal.Rptr. 164, 440 P.2d 236. ³ Section 3208.1, operative January 1, 1969, provides in part '. . . the date of cumulative injury shall be the date of disability caused thereby.'

In reliance upon the foregoing sections, the appeals board in this case concluded as follows: 'It is apparent that in 1967 and 1968 the applicant was aware that his headaches and dizziness were caused by his occupation. It is further apparent that the applicant lost time from work for which he was compensated by way of sick leave. At the hearing of March 1, 1971, he made a claim for temporary disability indemnity for that period of sick leave. We therefore hold that applicant's claim is barred by Labor Code Section 5405 in that the date of injury as defined by Labor Code Sections 5412 and 3208.1 occurred more than one year prior to the filing of the application on September 14, 1970.'

There can be no question that the knowledge acquired in 1967 and 1968 rendered the effective date of injury of the temporary disability manifested by his 159 hours of sick leave, and any self-procured medical treatment he received in connection therewith, the date of such disability or treatment. The referee properly disallowed any recovery for temporary disability or self-procured medical treatment antedating one year prior to the filing of the application.

The question remains whether the provisions referred to preclude recovery for cumulative disability which by its very nature could not manifest itself until the employee had undergone further exposure. It is irrational to rule that the employee who shrugs off the effects of the initial stages of industrial trauma forfeits the right to recover from the cumulative effect of that trauma which ultimately renders him unable to carry on his regular duties. Applicant points out that in those cases when the cumulative effect is not great, a rule requiring forfeiture of recovery of benefits for future disability unless prompt claim is made will spawn repetitive claims because of fear of loss of yet unknown future consequences.

On the other hand the employer argues that the failure to apply the statute of limitations strictly will lead to the assertion of claims made vague and cloudy by age. The...