Continental Casualty Co. v. Industrial Accident Commission

George Glantz was employed as a metal' worker by H. E. Jaynes & Son whose compensation insurance carrier was the petitioner. About July 21, 1932, Glantz suffered an injury to his left wrist. This injury occurred in the course of, and grew out of, his employment. Glantz thought he had sprained his wrist, had it bound with tape and continued with his work. He was not incapacitated for work for a period of seven days though he might have missed a few

On February 11, 1935, Glantz filed with the Industrial Accident Commission an application for the adjustment of his claim growing out of his first injury. During the hearing on this application, and on the advice of the commission, he filed an application for adjustment of his claim growing out of the injury of December 15, 1934. Two awards were made.

The award in question in this proceeding, involving the injury of July 21, 1932, provided in part as follows: “It is ordered that applicant take no disability indemnity presently by reason of the claim asserted herein. It is ordered that defendant insurance carrier furnish to said employee such medical, surgical and hospital treatment, including nursing and medicine as may be reasonable required to cure or relieve him from the effects of his injury; together with temporary disability indemnity during such period as he may be disabled by reason of such treatment. It is ordered that the defendant employer be discharged from liability herein and dismissed herefrom.”

The award in the other proceeding resulting from the accident of December 15, 1934, which is also before us for review in a case bearing our Civil Number 1763, provides in part as follows: ‘ ‘ Award is made in favor of George Glantz against - Continental Casualty Company of necessary medical treatment to relieve and cure the employee of the effects of the injury to his left wrist, and the employee is hereby awarded temporary disability indemnity for such period that he may be required to stay away from work as the result of the injury herein, less seven days waiting period.”

Petitioner urges in both cases that the proceedings are barred by the provisions of section eleven of the Workmen’s Compensation Insurance and Safety Act of 1917 (Stats. 1917, p. 831), as the proceedings were not instituted

The commission found that Glantz had been injured on July 21, 1932, but that as a result of the injury he “has lost no time from his work”. There is competent and material evidence in the record supporting this finding and we must accept it as true. It is clear that Glantz had no idea that he had a broken bone in his wrist until informed of that fact by physicians in December, 1934. He believed that his wrist had been sprained and that it was making a slowly progressive recovery.

When the limitation, imposed by the Workmen’s Compensation Insurance and Safety Act of 1917, commences to run, is a question that is carefully considered and discussed in Marsh v. Industrial Acc. Com., 217 Cal. 338 , page 344 [ 18 Pac. (2d) 933 , 86 A. L. R 563 ], where it is said: “ ‘The law does not award compensation for mere pain or physical impairment, unless it is of such character as to raise a presumption of incapacity to earn. The object is to make amends for a disability attributable to the employment, and the test is whether there is an incapacity causing loss of earning power in whole or in part. (Hustus’ Case, 123 Me. 428 [ 123 Atl. 514 ].) In order to be compensable, disability need not be limited to incapacity of a workman to pursue his ordinary occupation, but embraces impairment, or earning power generally. (Gordon v. Evans, 1 Cal. Ind. Com. [pt. 2] 94; Savich v. Industrial Com., 39 Ariz. 266 [ 5 Pac. (2d) 779 ].) The term “injury” then is to be understood as connoting a compensable injury, and is correlated to an incapacity or disability justifying a compensatory award. (Dombrowski v. Jennings & Griffin Co., 103 Conn. 720 [ 131 Atl. 745 ].) Injury and compensable disability are thus more nearly synonymous expressions than are date of injury and date of accident. (Acme Body Works v. Koepsel, 204 Wis. 493 [ 234 N. W. 756 , 236 N. W. 378 ].)

“ ‘In De la Pena v. Jackson Stone Co., 103 Conn. 93 [ 130 Atl. 89 ], the court speaking of an occupational injury (but

“ ‘An injury, then, may arise out of, and in the course of, the employment when there is a causal connection between the employment and the injury; but for the purposes o"f compensation the injury dates from the time when the diseased condition culminates in an incapacity for work. It is at that time that the employer’s liability becomes fixed; for until then the workman had received no injury in the legal sense, though the seeds productive of the injury had lodged in his frame long before. (Johnson v. London Guarantee & Acc. Co., 217 Mass. 388 [ 104 N. E. 735 ]; Textileather Corp. v. Great American Ind. Co., 108 N. J. L. 121 [ 156 Atl. 840 ].) When a disease is latent and progressive, it may not culminate until a considerable time after the employment has terminated. So, if the disabling result is delayed, then the injury is correspondingly delayed, and the right to compensation does not accrue until the incapacity occurs.

“ ‘Our Compensation Act expressly provides that it shall be liberally construed for the protection of persons injured in the course of their employment, and the purpose of such laws is to protect workmen, in proper eases, from economic insecurity. It is not surprising to find, therefore, that in those jurisdictions, where occupational diseases are compensable, it is almost universally the rule that the injury is not deemed to occur until ascertainable disability results. And it may be noted that in our own state it has been held that an employee is not to be deprived of compensation because he fails to make a correct medical diagnosis. (Winthrop v. Industrial Acc. Com., 213 Cal. 351 [ 2 Pac. (2d) 142 ]; Singer v. Industrial Acc. Com., 105 Cal. App. 374 , 376 [ 287 Pac. 567 ].) The dependency of compensation on ascertainable disability is illustrated in a variety of eases, some being cited

“ ‘ “Accidents frequently occur where the true nature of the injury and the resulting disability are not discernible for a considerable time even with the aid of scientific skill. When latent injuries from accidents do not at first indicate disabilities which are compensable, an employee is not necessarily deprived of compensation under the Workmen’s Compensation Act, Comp. St. 1922, section 3056, for failure to demand his rights under the act before they can reasonably be ascertained. An accident resulting in an injury which proves to be progressive in its nature belongs to that class.” Again in Travelers’ Ins. Co. v. Ohler, 119 Neb. 121 [ 227 N. W. 449 ], an employee who received an electric shock, supposedly inconsequential, continued his work for upward of a year before he became incapacitated and had to cease; and in his case also compensation was allowed. Likewise in City of Hastings v. Saunders, 114 Neb. 475 [ 208 N. W. 122 ], the date of injury was declared to be the time of culmination in a compensatory disability. ’ ”

When we apply these rules to the instant case we must conclude that the injury to Grlantz occurred when it was discovered that he had a broken bone in his left wrist which would require an operation to cure, which would incapacitate

The award in the instant case, bearing Claim Number . 47004 of the Industrial Accident Commission, is affirmed.

Barnard, P. J., and Jennings, J., concurred.

An application by petitioner to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was'denied by the Supreme Court on April 2, 1936. Curtis, J., and Conrey, J., voted for a hearing.