Opinion
Hearing Granted by Supreme Court Dec. 16, 1935.
Proceedings by the Consolidated Steel Corporation, Limited, employer to review an award of the Industrial Accident Commission of the state of California granting compensation to Ray Roldan, employee.
Award annulled.
COUNSEL
Loeb, Walker & Loeb, of Los Angeles, for petitioner.
Everett A. Corten and Emmet J. Seawell, both of San Francisco, for respondents.
OPINION
SHINN, Justice pro tem.
On September 4, 1930, Ray Roldan (referred to herein as respondent), while employed by petitioner, received among other injuries a dislocation of the joint of the left little finger. He received medical and surgical treatment and compensation, the last payment of compensation having been made February 12, 1931. He applied for further medical and surgical treatment for the injury to his finger, and on August 19, 1931, was examined at petitioner’s expense by a surgeon, who reported further surgery on the finger was advisable. Respondent entered a hospital on or about September 17, 1931, but, apparently because of lack of confidence in the proposed method or probable result of an operation, refused to take an anaesthetic or allow the surgeon to proceed with the operation. Nothing further was done in the matter until August 29, 1934, when respondent filed an application with the Industrial Accident Commission seeking further medical attention and treatment. After answer duly filed by petitioner, a hearing was had, and upon findings duly made that respondent was entitled to further medical treatment, together with compensation payments during any period of disability caused by or resulting from said treatment, an award was made in favor of respondent for further medical treatment consisting of an operation upon the injured finger. Upon a rehearing by the commission, the findings and award, theretofore made, were adopted as the decision on rehearing. Petitioner seeks to have the award annulled upon the ground that the proceeding was not instituted within the limited period allowed by the Workmen’s Compensation, Insurance and Safety Act of 1917, § 11, subd. (b) (1), St. 1917, p. 841.
The physician’s examination on August 19, 1931, disclosed that respondent had suffered a fracture and dislocation of a joint of the left little finger of such a nature that the alignment of the finger was disturbed, so that upon closing the hand the little finger came underneath the ring finger. There was a tender prominence in the left palm. X-ray pictures taken at the time disclosed these conditions. On October 22, 1934, respondent was again examined by another physician, who had before him the previous reports and pictures made in August, 1931. The finding upon the later examination was that there appeared to be no appreciable change in the finger after the former examination, there being the same indications for operation at the later examination as were disclosed by the former.
Under section 11, subd. (b) (1) of the act, proceedings for the collection of compensation for disability and for medical and hospital treatment, under the facts presented here, must have been commenced within six months after the date of the injury, or within six months after the date of an agreement to pay compensation, or the date of the last payment of compensation, or the expiration of the period covered by such payment; provided that the proceeding might have been commenced within 245 weeks after the date of the injury, if the original injury has caused new and further disability. The bar of the statute was pleaded as a defense to the application. The findings of the commission are not specific as to this defense. It was found only that the employee is entitled to further medical treatment and to compensation during the disability caused thereby.
In support of the award, it is urged that the commission has found, impliedly, the existence of facts necessary to show the claim to be not barred. For the purposes of this decision, we may so assume. The facts, however, are not in dispute, and, in our view, a finding upon any ground that the claim is not barred would be without support in the evidence. It is admitted that the last payment of compensation was made February 12, 1931, and that no agreement for compensation was made. It is claimed, however, that the evidence is sufficient to show that respondent has suffered new and further disability. Respondent points out that in December, 1930, he submitted to surgery upon the hand, which it was hoped would, to some extent, cure the malformation, but which did not achieve the desired result. The failure of this operation, it is said, resulted in a new and further disability, upon the theory, as we understand it, that the injury thereupon passed from a temporary disability to a permanent one. Also, the statement is made that it was only after approximately three years that the injury became such that respondent was unable to continue with his work. We find no evidence, either in the medical testimony or in that of respondent, to warrant either of these conclusions.
The evidence shows, without conflict, that the condition of respondent’s hand did not undergo any change from the beginning. It healed in a deformed shape and with a definite loss of function. It has not grown progressively worse. It has not become painful, except when in use, and that is not a new condition, nor has it become any less useful. The report of the medical examination made October 22, 1934, states: "There has been no appreciable change in the condition since then (referring to the date of examinations in August and September, 1931) and evidently the same indications for operation are present now as were present at that time." The condition is manifestly a permanent one, the record being barren of any suggestion of more than a possible improvement in the condition which may be accomplished by surgery. But whether the condition be permanent, or curable, and therefore temporary, it is a condition that has existed from the beginning and not a new one.
Respondent has cited to us Cowell L. & C. Co. v. Industrial Accident Commission, 211 Cal. 154, 294 P. 703, 72 A. L. R. 1118, and Armstrong v. Industrial Accident Commission, 219 Cal. 673, 28 P.2d 672, to which may be added City of Pasadena v. Industrial Accident Commission, 136 Cal.App. 649, 29 P.2d 447; and petitioner cites Associated Oil Co. v. Industrial Accident Commission, 214 Cal. 358, 5 P.2d 420. All of these cases hold, in effect, that the time within which a proceeding shall be commenced is 245 weeks, in cases where the original injury causes new and further disability, and 6 months, where the facts proved do not bring the case within the exceptions to the 6 months’ provision. The record in the instant case, as in Associated Oil Company v. Industrial Accident Commission, supra, shows an original injury and no new or further disability, in which respect it differs from the cases cited by respondent, in which the evidence was held sufficient to support the findings of the commission that new and further disability had occurred. The claim upon which the award was made was barred at the time the proceeding was instituted.
The award is annulled.
We concur: HOUSER, P. J.; YORK, J.