De Luna v. Workmen's Compensation Appeals Bd.

• Decision Date: 24 January 1968
• Citation: 65 Cal.Rptr. 421,258 Cal.App.2d 199
• Court: California Court of Appeals Court of Appeals
• Parties: Leonard DE LUNA, Petitioner, v. WORKMEN'S COMPENSATION APPEALS BOARD, West Coast Meat Company and State Compensation Insurance Fund, Respondents. Civ. 31810.

Page 421

65 Cal.Rptr. 421

258 Cal.App.2d 199

Leonard DE LUNA, Petitioner, v. WORKMEN'S COMPENSATION APPEALS BOARD, West Coast Meat Company and State Compensation Insurance Fund, Respondents.

Civ. 31810.

Court of Appeal, Second District, Division 5, California.

Jan. 24, 1968.

Hearing Denied April 17, 1968.

Weinstein, Shelley & Proctor and Robert C. Proctor, Jr., Alhambra, for petitioner.

Everett A. Corten, San Francisco, Edward A. Sarkisian and Sheldon M. Ziff, Los Angeles, for respondent Workmen's Compensation Appeals Board.

McCOY, ^* Associate Justice Pro Tem.

Applicant, a truck driver, born August 5, 1935, seeks review and annulment of an order of the Workmen's Compensation Appeals Board denying his claim for reimbursement for self-procured medical treatment and for temporary disability prior to 1966 on the ground that it is barred by the statute of limitations. He contends it is a claim for new and further disability and timely filed as required by Labor Code, section 5410.

It appears from the record that the applicant filed two separate claims alleging injury to his back, left leg and left hip. On October 4, 1966, he filed a claim alleging cumulative disability arising out of and in the course of his employment from July 1960 and thereafter. On November 2, 1966, he filed a claim alleging that he sustained a specific injury on July 16, 1962, based on an incident in which he was lifting a 100-pound box which slipped causing him to struggle with it and resulting in a sharp pain in the area of his hip. The cases were consolidated for hearing which was had on December 1, 1966.

Applicant testified as follows: In 1958 or 1959 he had an incident of severe pain in his back above the belt line but within a week the discomfort went away. He had no symptoms thereafter for at least three years before the incident of July 16, 1962. He testified that after the incident of 1962 he was given injections and treated for about a month by his own doctor and in the following six months he missed about three months' work. He was examined at the Veterans Administration Hospital in October 1962 and they could not find anything wrong with him. He returned to work November 1962 at the same job. He still had a constant ache in his back and pain in the left leg which extended from hip to ankle. From then on until September 1966 his discomfort got worse. Before June of 1966 he noticed that the toes on his left foot seemed to be falling to sleep. By June 1966 he could not move them. In July of 1966 his foot began to flop. In 1964 he was involved in an auto accident but his back and left leg were not affected.

On the claim for cumulative disability the referee made the following pertinent findings: that applicant sustained injury to his back, left leg and left hip from July 1960 through October 20, 1966; that the injury caused temporary total disability beginning October 24, 1966, through the date of the hearing and thereafter; that the condition is not permanent and stationary; that temporary disability and the need for medical treatment were wholly caused by this injury; that defendants failed to furnish medical treatment after notice of need subsequent to October 4, 1966, and applicant incurred expense therefor; that there was no notice of need for medical treatment prior to October 4, 1966, and there was prejudice for lack of notice as to this treatment; that further medical treatment is required to cure and relieve from the effects of this injury. An award issued accordingly.

On the claim for specific injury on July 16, 1962, the referee found: that applicant sustained injury on said date; that the condition is not permanent and stationary; that his claim for 'reimbursement for any self-procured medical treatment or temporary disability prior to 1966; was barred by the statute of limitations, but that his claim for further disability, temporary or permanent, or for medical treatment is not barred by Labor Code, section 5410. The referee ordered that applicant take nothing at that time and the issues of permanent disability and apportionment be placed off calendar.

The insurance carrier sought reconsideration of the award on the claim of specific injury. It contended that Labor Code, section 5410 did not extend the time for filing that claim because no benefits had ever been furnished to the petitioner and he had filed no original claim within one year after the alleged injury

The evidence, without dispute, was that applicant complained to the dispatcher of the employer of pain after the incident of July 16, 1962; the dispatcher told him to see Dr. Rossibertolli; the doctor examined applicant and palpated his back. He took no x-rays. Considering his complaints nonindustrial, he advised him to see his personal physician. An officer of the employer testified that, although he was not directly notified by the applicant of the alleged injury, he knew of the incident through the doctor's report.

The board, by a majority vote, concluded that Dr. Rossibertolli's examination was not the furnishing of benefits sufficient to establish a basis for a claim for 'new and further disability' within five years of injury under the provisions of Labor Code, section 5410. It therefore held that the claim was barred and denied benefits. It found only that the applicant alleged an injury on July 16, 1962; it did not make a finding that he actually sustained injury on that date. In effect, it did not adjudicate that claim in any way except to find that it was barred.

Both the applicant and the board argue the question of whether the claim, based on the alleged injury of July 16, 1962, was barred under Labor Code, section 5410. In our opinion the referee and the board proceeded on an incorrect legal theory in making separate findings and orders on each of the claims, in that they have ignored the rationale of the cumulative injury cases and have disregarded the fact that the specific incident of July 16, 1962, is but a part of the cumulative injury found to have been sustained by the applicant from July 1960 through October 20, 1966. While the applicant may file both a claim of specific injury and a claim of cumulative injury covering the same period of time, he may not have an award on both nor is disability, either temporary or permanent, to be apportioned between the two claims.

No reconsideration was sought of the award for cumulative injury. The referee's opinion on decision in reference to both cases states in part: 'It was noted that Dr....