Opinion
Page __
__ Cal.App.2d __241 P.2d 299FIREMAN'S FUND INDEMNITY CO.v.INDUSTRIAL ACC. COMMISSION et al. Civ. 15103.California Court of Appeals, First District, First DivisionMarch 4, 1952.Hearing Granted May 1, 1952.
As Modified on Denial of Rehearing April 3, 1952.
[241 P.2d 300] 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 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. [241 P.2d 301] 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.
Herein, for brevity, referred to as a 'stroke'.
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 overwork, was developing the disease all during the period of his employment, and February 7, 1945, was the last day of that process which without further work or activity in the employment became disabling the following day.'
It may be assumed from the foregoing authority and the facts of this case that the injury, or incident or exposure mentioned in section 5411, was accumulating for a period of approximately 65 days, and that while the whole constituted a single injury, any day during that period, or at its end, constituted 'the date of injury'. Certainly the exposure, under the commission's findings, continued for the 65 days. Still, any date within that period would be more than a year from the time when petitioner ceased to be the employer's carrier.
This brings us to the question of whether, inasmuch as the employer could not raise the bar of the statute, his carrier can. Or, to put it another way, so far as the carrier is concerned, does the statute of limitations run from the date of its discharge as a carrier or from the date of the injury? Take the situation in Lumbermen's Mutual Casualty Co. v. Industrial Accident Comm., supra, 29 Cal.2d 492, 175 P.2d 823. There the overwork was held to be the 'injury' and its effects were accumulating over a period of time. On February 7 the employee returned home from work apparently in good health. His paralysis occurred the next day without further activity. Suppose that he quit work on February 7 and rested for a considerable time and then the paralysis occurred due to the prior overwork. The employee would have a year from that time to apply to the commission for compensation. The employer could not claim that the statute had run, nor could his carrier, even though that carrier had ceased to be the employer's carrier on the day following the day upon which the employee quit work. See United [241 P.2d 302] States Fidelity & Guaranty Co. v. Industrial Accident Comm., 195 Cal. 577, 234 P. 369. Thus, it is apparent that the statute of limitations in the Labor Code does not start to run from the time when a carrier severs its connection with the employer but from the date of injury which includes all dates during the exposure. The situation here is in some respects similar to, although different from the occupational disease situation. In the latter the statute, in effect, does not start to run until the accumulation of a number of exposures caused the disabling result. Here the disabling result must be the result of only one exposure, but which may have taken place over several days. It differs from situations like a broken lumb in that in those cases the exposure and the result are joint and immediate, whereas here the exposure extends over a period of days. In Massachusetts Bonding & Ins. Co. v. Industrial Accident Comm., 36 Cal.App.2d 96, 96 P.2d 1009, an employee suffered an industrial injury which did not cause an impairment of his earning capacity until a date after the insurance carrier had ceased to act as the employer's carrier. Nevertheless, the carrier was held liable.
The commission found petitioner to be jointly and severally liable with the Industrial Indemnity Company. This finding is appropriate as far as the employee, Gregory, is concerned. However, in view of the fact that as to the employer and Industrial Indemnity Company, petitioner after January 25 was no longer the insurance carrier, there should be an apportionment of the award. Whether this apportionment should be on the basis of a joint liability of both carriers for that portion of the injury attributable to the period prior to January 25, and then a sole liability of the Industrial Indemnity Company for the period thereafter, may depend on the determination whether medically the responsibility for the injury can be so divided. Other factors may be relevant. This is a matter for the commission to determine. See Associated Indem. Corp. v. Industrial Accident Comm., 124 Cal.App. 378, 12 P.2d 1075, and Colonial Ins. Co. v. Industrial Accident Comm., 29 Cal.2d 79, 172 P.2d 884. While those were occupational disease cases, the principle set forth there would apply here, at least as to the period prior to January 25.
The award is affirmed so far as the employee is concerned. However, the matter is remanded to the commission with directions to make proper apportionment of the award between the two insurance carriers.
PETERS, P. J., and FRED B. WOOD, J., concur.