Pacific Indem. Co. v. Industrial Acc. Commission

• Decision Date: 17 February 1950
• Citation: 34 Cal.2d 726,214 P.2d 530
• Court: California Supreme Court
• Parties: PACIFIC INDEMNITY CO. v. INDUSTRIAL ACCIDENT COMMISSION et al. L. A. 21102.

Page 530

214 P.2d 530

34 Cal.2d 726

PACIFIC INDEMNITY CO. v. INDUSTRIAL ACCIDENT COMMISSION et al.

L. A. 21102.

Supreme Court of California, in Bank.

Feb. 17, 1950.

Herlihy & Herlihy and J. McLaughlin, Los Angeles, for petitioner.

T. Groezinger and Robert Ball, San Francisco, for respondents.

CARTER, Justice.

This is a review of an award of workmen's compensation to C. J. Rotondo based upon a finding that he suffered a disability consisting of aggravation of pre-existing pulmonary tuberculosis. Petitioner asserts (1) that the evidence does not support the finding that the disability arose out of and occurred in the course of Rotondo's employment, and (2) that the claim was barred by the statute of limitation. Labor Code, sec. 5405, application must be filed within 6 months after injury.

In 1941, Rotondo was employed by Cal-Aero Academy, as a flight instructor. The employer was training pilots for the Army Air Corps. In 1942, Rotondo, while flying developed symptoms of pulmonary tuberculosis, consisting of a hemorrhage. He was advised by his employer that his disability was not compensable. He was then treated in a hospital for about four months, followed by resting at home. In January, 1943, the employer requested him to return to work with the assurance that he would be assigned to radio communication duty in the control tower light inside work. He was cleared by his physician for such work, but after two weeks in that capacity, the employer assigned him to flight instructor duties. A physician's report in May, 1943, showed the pre-existing disease to be arrested. As flight instructor, Rotonda was in the air six days a week, working from four to nine hours a day and sometimes longer. In this work he was subjected to the resultant changes in barometric pressure and temperature. Most of those flying suffered from colds more or less continuously from the temperature changes. In February of 1944, while 'rocking' the wing of an aircraft (a process by which the wing is manually lifted up and down to assist in freeing a wheel bogged in the sand), he felt 'catches' in his chest and later expectorated blood. In May 1944, while cranking a plane, he had a similar experience. In July, 1944, feeling tired, he left work and stayed at home to rest. On November 16, 1944, his former physician, Dr. Pottenger, examined him and advised him that the tubercular condition had been reactivated. He filed his claim with the commission on February 9, 1945.

The evidence is ample to support the finding that the reactivation of his condition was caused by his work arose out of and occurred in the course of his employment. Dr. Pottenger testified that if all Rotondo had to do was sit in the control tower, his condition would not have been reactivated; that hemorrhages were caused by changes in weather changes in barometric pressure; that flying under the conditions prevailing in Rotondo's case was 'just the thing' that would start reactivating the tubercular condition; that rocking and cranking the plane could cause a hemorrhage. The sum and substance of his testimony is that Rotondo's work as a flying instructor was the cause of the lighting up of his previous disease. There is evidence that any work or activity would aggravate the condition and that there was no particular connection between Rotondo's work and the disability. This presents nothing more than a conflict in the evidence which has been resolved against petitioner.

Hartford Accident & Indemnity Co. v. Industrial Acc. Comm., 140 Cal.App. 482, 483, 35 P.2d 366, and California Casualty Indemnity Exchange v. Industrial Acc. Comm., 76 Cal.App.2d 836, 174 P.2d 680, relied upon by petitioner are not controlling for the conflict in the evidence here existing was not present in those cases. On the contrary, the cases support the view that there was sufficient evidence here to support the award. See, Liberty Mutual Insurance Co. v. Industrial Acc. Comm., 73 Cal.App.2d 555, 166 P.2d 908; Lumbermen's Mutual Casualty Co. v. Industrial Acc. Comm., 29 Cal.2d 492, 175 P.2d 823; Mullane v. Industrial Acc. Comm., 118 Cal.App. 283, 5 P.2d 483.

On the issue of the statute of limitation, petitioner asserts that Rotondo knew or should have known more than six months prior to February 9, 1945, when he filed his application for compensation, that his disease had been reactivated and that it was compensable. It is settled that the statute does not commence to run until the employee's condition, whether from disease or injury, culminates in incapacity to work and the employee knows, or in the exercise of ordinary care should know, that he is suffering from the disease or injury and that such disease or injury was caused by his employment, Pullman Co. v. Industrial Acc. Comm., 28 Cal.2d 379, 170 P.2d 10; Alford v. Industrial Accident Comm., 28 Cal.2d 198, 169 P.2d 641; Huysman v. Kirsch, 6 Cal.2d 302, 312, 57 P.2d 908; Faith v. Erhart, 52 Cal.App.2d 228, 126 P.2d 151; Marsh v. Industrial Acc. Comm., 217 Cal. 338, 18 P.2d 933, 86 A.L.R. 563, and those issues present questions of fact to be determined by the commission. Alford v. Industrial Accident Comm., supra; Marsh v. Industrial Acc. Comm., supra. The burden of proving that the employee has or should have had such knowledge rests on...