Opinion
Rehearing Denied Sept. 20, 1943.
Hearing Granted Oct. 28, 1943.
Application by Margaret Mary Bonner, a minor, by her guardian ad litem and trustee, Margaret Bonner, against the Industrial Accident Commission of the State of California and others, for a writ to review a compensation award in favor of petitioner.
Award annulled. COUNSEL
Richard C. Olson, of Los Angeles, for petitioner.
Everett A. Corten and Fred G. Golds-worthy, both of San Francisco, for respondent Industrial Accident Commission.
Herlihy & Herlihy, of Los Angeles, for respondent Industrial Indemnity Exchange.
OPINION
BISHOP, Justice pro tem.
The petitioner in this proceeding, the wholly dependent, minor, daughter of J. J. Bonner, made application for a death benefit, following her father’s death. Bonner’s death was due to silicosis, contracted at some time during his twenty and a half years’ work in mines and tunnels. The Commission at first awarded a death benefit of $5,000, but upon rehearing changed the amount awarded to $583. The tentative conclusion which led to the issuance of the writ of review has been confirmed; the award should be annulled because it goes beyond the support afforded either by the findings or by the evidence.
Basically, the correlative rights and obligations of the parties to the proceeding before the Commission rest upon these pertinent provisions of the statutory law, continuously in effect from their appearance in section 6 of the Workmen’s Compensation, Insurance and Safety Act of 1917, Stats.1917, p. 831, 841, up to and including their restatement in section 3600 of the Labor Code, St.1937, p. 269:
"Liability for the compensation provided by this division * * * shall * * * exist against an employer for any injury sustained by his employees arising out of and in the course of the employment and for the death of any employee if the injury proximately causes death, in those cases where the following conditions of compensation concur:
"(a) Where, at the time of the injury, both the employer and the employee are subject to the compensation provisions of this division.
"(b) Where, at the time of the injury, the employee is performing service growing out of and incidental to his employment and is acting within the course of his employment.
"(c) Where the injury is proximately caused by the employment * * *." Earlier in the Labor Code, in section 3208, we find this definition: " ‘Injury’ includes any injury or disease arising out of the employment * * *."
For the purposes of the statute of limitations (formerly, section 11, of the Workmen’s Compensation Act; now, sections 5405 and 5406 of the Labor Code), the disease of silicosis is not regarded as an injury "until the employee knows, or when by the exercise of due care and diligence, he is presumed to know, that he has an occupational disease which has progressed to the extent that he is so disabled that the efficiency of his work is appreciably affected thereby." Argonaut Mining Co. v. Industrial Acc. Comm., 1937, 21 Cal.App.2d 492, 496, 70 P.2d 216, 219. The injury thus described may not arise until some time after the employment which proximately caused the injury has ceased. These words, found in Marsh v. Industrial Acc. Comm., 1933, 217 Cal. 338, 351, 18 P.2d 933, 938, 86 A.L.R. 563: " ‘From our study of the subject we are brought to the conclusion that in the case of a latent and progressive disease, such as [silicosis], it cannot reasonably be said that the injury dates necessarily from the last day of exposure to a dust-laden atmosphere and that the prescriptive period begins to run from that day. Rather, according to our view, should the date of the injury be deemed the time when the accumulated effects culminate in a disability traceable to the latent disease as the primary cause, and by the exercise of reasonable care and diligence it is discoverable and apparent that a compensable injury was sustained in performance of the duties of the employment * * *’ " reappear, in part at least, in Giminez v. Industrial Acc. Comm., 1933, 132 Cal.App. 638, 640, 23 P.2d 425; Argonaut Mining Co. v. Industrial Acc. Comm., supra, 21 Cal.App.2d 492, 497, 70 P.2d 216; and Price v. Industrial Acc. Comm., 1935, 9 Cal.App.2d 213, 215, 49 P.2d 294, 295. In the Marsh case the employee, whose name identifies the case, quit his employment in February, 1928, for reasons bearing no relation to the disease of silicosis, the symptoms of which did not appear until December, 1928. The disease was not identified until a week before his death, February 14, 1930. The application for a death benefit, filed October 20, 1930, was held, under the facts stated, not necessarily barred by the statute, and the award denying the application was annulled "to the end that further proceedings may be had to ascertain when the statute of limitations began to run." The "date of the injury" in the Price case was fixed as May 30, 1934, although the employment had terminated in November, 1933, when the employer ceased business.
For the purposes of the statute of limitations, then, the injury may be deemed not to occur until some time after the employment, which was its proximate cause, has ended. But, as we have noted, one of the conditions which must "concur" in order that an employer may become liable to pay compensation for disability or a death benefit, is that "at the time of the injury, the employee is performing service growing out of and incidental to his employment and is acting within the course of his employment." Sec 3600 (b), Labor Code. The "time of injury" of section 3600, Labor Code, is not to be differentiated from the "date of injury" of sections 5405 and 5406, by making a distinction between "time" and "date," for there is no authority for relying upon the distinction that makes no difference between these two innocent words. The inconsistent positions that have been reached grow out of the desire, and the necessity, of interpreting Division IV of the Labor Code (which is, in substance, a codification of the Workmen’s Compensation Act), as directed by its section 3202: "The provisions of Division IV * * * of this code shall be liberally construed by the courts with the purpose of extending their benefits for the protection of persons injured in the course of their employment." This rule of interpretation has, of course, been given judicial recognition (Pacific Lbr. Co. v. Industrial Acc. Comm., 1943, 22 Cal.2d 410, 139 P.2d 892) and has itself been liberally construed so that its principle is extended to benefit the dependents of "persons injured in the course of their employment." Mark v. Industrial Acc. Comm., 1938, 29 Cal.App.2d 495, 497, 84 P.2d 1071.
We are dealing with a silicosis case, and our conclusions, however broadly stated, are limited to such a case. "The law clearly distinguishes between a physical injury sustained as the result of an accident and injuries which develop from progressive occupational diseases like silicosis." Argonaut Mining Co. v. Industrial Acc. Comm., supra, 21 Cal.App.2d 492, 496, 70 P.2d 216, 219. It is established, then, we may say, that a disease contracted during an employment may appear as an injury sometime after the employment has ceased. One consequence of this is that in the case of successive employments a disease which becomes disabling and so compensable, during the period of the employee’s service with employer C, may have as its sole proximate cause the previous employment with employer A. That is to say, a disease, constituting an injury, may have been contracted during the employment with A, although its existence may not have become known, nor may it have become disabling, until during the employment with C, an employment which had no effect upon the disease. If so, then for the results of the injury the first employer alone would be liable, for one of the conditions which must concur to create liability is: "Where the injury is proximately caused by the employment * * *." Sec. 3600 (c), Labor Code. It may be, however, that both of the succeeding employments with B and C contributed to, that is, were further proximate causes of the disease which constituted the injury, in which event liability for compensation for any disability would fall upon each of the three.
The question which arises in the event a disease, contracted during one employment, was contributed to by succeeding employments, that is, whether or not each of the several employers is liable for the full amount of compensation, as general and special employers are for compensation to their common employee (American M. Ins. Co. v. Industrial Acc. Comm., 1937, 8 Cal.2d 585, 588, 67 P.2d 103), and a principal and agent are for their employee (Cowell v. Industrial Acc. Comm., 1938, 11 Cal.2d 172, 176, 78 P.2d 1016, 1019), has been answered for us by the case of Blanchard v. Industrial Acc. Comm., 1924, 68 Cal.App. 65, 228 P. 359. In that case the employee, Blanchard, had "glass-blowers’ arm," or, more accurately, glass-blowers’ arms, for when his right arm became useless in his trade, he used his left arm until that too was no longer serviceable. Blanchard had worked as a glass blower for three, it might indeed be said for four, employers: twelve years with A, six months with B, six months with C, and then forty minutes with B again. It appears that he contracted the disease while employed by A, and knew that he had it, but continued to work on, though with less efficiency, until he finally had to quit. The Commission determined that he had become fifteen percent totally disabled and awarded him $1,249.80, but then prorated the amount among the three employers. As Blanchard’s claim was barred against two of them, he was left with an effective award of only $468.70 against B, and petitioned the District Court of Appeal to have the award annulled. "The purpose of this petition," the reviewing court stated (68 Cal.App. at page 67, 228 P. at page 360), "is, therefore, to seek the annulment of that portion of the Commission’s award which prorates the compensation between the three employers * * *." The court then proceeded: "Subdivision 4 of section 3 of the Workmen’s Compensation Act, as amended (Stats.1919, p. 911), defines ‘injury’ for which compensation may be awarded under the act as follows: ‘The term "injury," as used in this act, shall include any injury or disease arising out of the employment, including injuries to artificial members. In case of aggravation of any disease existing prior to such injury, compensation shall be allowed only for such proportion of the disability due to the aggravation of such prior disease as may reasonably be attributed to the injury.’ Under this section it was plainly the duty of the Commission to apportion the award of compensation among the respective employers, and in doing so the Commission was required to exercise a discretion based upon the evidence of the various periods of employment, which is not attacked in this proceeding."
The subdivision, it will be noted, which the court quoted and which, it declared, made plain the duty of the Commission to apportion the award, does not contain the word "apportion" or "prorate," or any word of similar import. That which the subdivision was framed to accomplish, as we can determine from the words employed, was the paring down of liability, not its imposition. This observation is not intended as a criticism of the court’s conclusion in the Blanchard case, but to emphasize that that conclusion was based on two grounds. It was based not alone on the subdivision expressly referred to as its support, but also on the facts, previously reviewed but not reiterated, which revealed that liability for compensation rested upon the earlier employers. We do not interpret the Blanchard case as either holding or declaring that its subdivision 4 of section 3 authorized the spread of the burden of compensating an employee injured (by disease) upon previous employers who, but for the subdivision, would have no liability.
Our conviction that subdivision 4 of section 3 is not to be construed as creating a liability is fortified by a further decision, six months later than that in the Blanchard case, and rendered by the same court. We refer to Moore Shipbuilding Co. v. Industrial Acc. Comm., 1925, 70 Cal.App. 495, 233 P. 392, 393, where the disease involved was lead poisoning, a disease which, judging from the facts of the case, is much more rapid in its development than is silicosis. For about two months prior to March 6, 1924, the applicant had worked for the petitioner as a burner of armor plate. From March 10 to March 21 he worked as a burner for a second employer, becoming disabled from lead poisoning on the last mentioned date. The Commission found that the disease was contracted during the second employment, but held that the compensation should be apportioned in accordance with the time worked by the employee "under exposure to lead." We quote at length the not lengthy remarks of the reviewing court:
"The attack of the petitioner upon the award is that it is wholly unsupported by the findings on the part of the Commission. The point is that the jurisdiction of the Commission to apportion compensation among several employers where an employee has contracted an occupational disease during the course of the several employments can be sustained only upon a finding that the disease which constituted the ‘injury’ defined in subdivision 4 of section 3 of the Workmen’s Compensation Act (St.1917, p. 831), as amended in Statutes 1919, page 911, existed at some stage of each prior employment. That is to say, that the power of the Commission to apportion the liability among several employers under the terms of the section cited is limited to a ‘case of aggravation of any disease existing prior to any such injury.’
"The petitioners set forth in their petition extracts of the evidence which was heard by the respondents covering the subject of the injury to the applicant, and the respondent concedes that this evidence is correctly stated. From the petition it appears that there was no evidence of any nature tending to show that the applicant had incurred or had shown any symptoms of the disease while employed by the petitioner Moore Shipbuilding Company, and the absence of such evidence was apparently in the minds of the members of the respondent Commission, when they failed to find on that fact. On the other hand, the findings are that the applicant sustained injury while employed by the General Metal Supply Company, and the apportionment of the award against the petitioner was based solely on the conjecture that, while employed by petitioner, the applicant might have contracted the disease to some extent. But the direct testimony of the applicant showed that he had no symptoms of the disease while in the employ of the petitioner.
"The Commission is required to make findings upon all facts involved in the controversy (section 20, Workmen’s Compensation Act of 1917), and a failure to find that an injury was sustained or that a disease was contracted during a particular employment will not support an award against the one who was the employer during that period. In this case the jurisdiction of the Commission to apportion the award rests upon a showing that the disease was contracted while in the employment of the Moore Shipbuilding Company. In this respect there is a failure in both proof and finding. It follows that the Commission exceeded its jurisdiction."
We conclude, then, that the period during which one has been exposed to silica dust, prior to the time when the exposure has resulted in that serious impairment of the functions of the lungs which may properly be termed a diseased condition, is not to be taken into consideration in determining how much of the burden of compensation is to be placed upon an employer in whose service the disease was either contracted or, having already come into existence, was aggravated. In many cases, no doubt, the first, imperceptible, minute, infiltrations of silica dust come to one during the days of boyhood play, upon the vacant-lot ball field, along the dusty road, up in the hay loft. These years are not to be taken into account in apportioning compensation for silicosis, years later, not because they are not industrial years, but because they have resulted in no pre-existing disease which can be said to have been aggravated or to have imposed liability as for an injury. The same is true of years spent in industry which have passed without that effect upon the bodily health which constitutes a disease; these years are not to be counted in apportioning the burden which the law places upon industry. Where the line is to be drawn between a healthy condition and a diseased one is, of course, a problem of fact, often difficult to solve with definiteness. An employer, upon whom the facts and the law place responsibility for compensation for silicosis, who would escape a portion of the load on the theory that he alone is not responsible, necessarily has the burden of proving that other employers should share the responsibility. Moquin v. Industrial Acc. Comm., 1939, 33 Cal.App.2d 511, 516, 92 P.2d 413.
Our conclusion, that where it is made to appear that an employment had brought about a case of silicosis which was aggravated by a subsequent employment, the burden of compensating the employee for the resulting disability is properly divided among the employers upon whom liability exists, is not only supported by the Blanchard case, but also by Associated Ind. Corp. v. Industrial Acc. Comm., 1932, 124 Cal.App. 378, 384, 12 P.2d 1075, where the Blanchard case was cited, and by Argonaut Mining Co. v. Industrial Acc. Comm., supra, 21 Cal.App.2d 492, 70 P.2d 216, where such an award was affirmed as a matter of course. It is argued to us that the statute, sub. 4, sec. 3, may authorize an apportionment in the case of a disability but not in a death case. We are of the opinion that this argument places too much strain on the use of the word "disability" in the subdivision. It would indeed be an anomalous situation if compensation should be apportioned among several employers for the period of disability due to a disease, but that when death resulted either the entire burden should be placed on the last employer, or equally on all. We hesitate to believe that the legislature intended that one rule should hold respecting compensation for disability and a different rule should follow death. The reviewing court, in Mullane v. Industrial Acc. Comm., 1931, 118 Cal.App. 283, 5 P.2d 483, determined that subdivision 4 of section 3, applied where a death benefit was being sought. In that case an injury aggravated an existing disease for which the employer had no responsibility, disability first, then death, resulting. The Commission first awarded a death benefit without apportionment, and then on rehearing withdrew it entirely. The court stated (118 Cal.App. at page 289, 5 P.2d at page 484) that the finding on the rehearing, that death "was not caused by injury arising out of or in the course of the said employment," is "contrary to the undisputed evidence * * * and contravenes the plain provisions of said act, as declared in subdivision 4 of section 3 thereof. Therefore, the decision of the commission based thereon, denying petitioner any relief whatever, should be annulled, and the proceeding remanded to the commission for further action pursuant to the provisions of the act last mentioned * * *."
It is true that no one, apparently, had argued in the case just referred to, that the subdivision was not applicable to a death case. However, we are of the opinion that the construction which it and the other cases cited have placed upon subdivision 4, section 3 of the Workmen’s Compensation Act, has much more binding force than is due to their value as precedents. This is so because: "If a statute has been judicially construed and is later re-enacted in the same or substantially the same terms it is presumed that the legislature was familiar with the construction which had been placed upon the statute by the courts and that such construction, in the absence of an express provision requiring a different construction, was adopted by the legislature as a part of the law." In re Estate of Hebert, 1941, 42 Cal.App.2d 664, 668, 109 P.2d 729, 731. For applications of this principle see: In re Baker & Hamilton, 1880, 55 Cal. 302, 303, 304; State Commission in Lunacy v. Welch, 1908, 154 Cal. 775, 777, 99 P. 181; Harris v. Barlow, 1919, 180 Cal. 142, 143, 179 P. 682; Lindsay-Strathmore I. Dist. v. Superior Court, 1920, 182 Cal. 315, 333, 187 P. 1056; People v. Ellis, 1928, 204 Cal. 39, 44, 266 P. 518. The first sentence of subdivision 4 of section 3 we have already discovered in section 3208 of the Labor Code. The second sentence also appears there, with alterations of no consequence, as section 4663. The adoption of sections 3208 and 4663 accomplished more than the mere reenactment of subdivision 4 of section 3 of the Workmen’s Compensation Act; it wrote into the law the constructions placed upon that subdivision by the cases.
In the proceeding under review the fact that the applicant for a death benefit was a minor has kept the case free from questions involving the bar of the statute. Sec. 5408, Labor Code. The questions that have arisen, however, make it important to note that the evidence clearly establishes that Bonner had been working as tunnel superintendent for J. F. Shea Company (whose insurance carriers are respondents in the pending proceeding) off and on for a three year period between June 15, 1933, and April 18, 1936. At the end of this period his condition, soon discovered to be due to silicosis, became so bad that he had to quit his job, permanently. On June 6, 1941, Bonner died "as the result," the Commission found, "of silicosis, upon which was superimposed tuberculosis." The evidence discloses, further, that the conditions under which Bonner worked during his last three active years could well have been a proximate cause, if not the proximate cause, of Bonner’s breakdown. These facts would support the Commission’s original award of $5,000 as a death benefit. Sec. 4702, Labor Code. (We are not passing upon petitioner’s suggestion that that award should have been $6000.) What is there in the findings of the Commission, or in the evidence, which justifies the reduction of the amount awarded to $583?
This finding of the Commission is put forward as the basis for the reduced award. "2. Prior to the date of June 15, 1933, J. J. Bonner was employed for a period of approximately seventeen and one-half years outside the State of California in mining and tunnel work. As a result of exposure in his work prior to June 15, 1933 he contracted silicosis which was further aggravated by the work which he performed for the J. F. Shea Company subsequent to June 15, 1933." The Commission had previously found that Bonner had worked for some seventeen months, between June 15, 1933, and April 18, 1936, for the J. F. Shea Company, and it is apparent, both from the findings and from the Commission’s brief, that the reduced award was the result of apportioning the death benefit over the entire period of decedent’s employment in mines and tunnels. While it is true that the determination of the amounts to be allowed, under an apportionment, is a matter left to the sound discretion of the Commission (Tanenbaum v. Industrial Acc. Comm., 1935, 4 Cal.2d 615, 618, 52 P.2d 215), it is a discretion to be exercised upon a legal and factual, not an arbitrary, basis. We consider the finding that "as a result of exposure in his work prior to June 15, 1933 he contracted silicosis" as too general a finding to warrant the inclusion of the seventeen years’ work previous to 1933 in the total upon which the apportionment was based. It would not be at all inconsistent with the finding for the fact to be that at no time prior to 1931, let us say, did Bonner have any symptoms of silicosis, or that, prior to that arbitrarily selected date, he had not incurred the disease of silicosis. The most that the findings reveal is that he was exposed to the conditions which might, but might not, have impaired his health. Unless he contracted silicosis by the year 1931, the years prior to that year had no place in the Commission’s calculations.
Enough concerning the findings, for there is a more fundamental weakness in the foundation upon which the award was erected. There is evidence that Bonner worked in mines and tunnels over a period of years before he began his last employment, with J. F. Shea Co., Inc., but there is no evidence to support a finding that he had contracted silicosis before the beginning of that employment. The evidence reveals but little of the character of the conditions under which Bonner worked with respect to their possible effect upon his health, quite an insufficient amount to support an inference that his health had been impaired, that he had a disease that could be aggravated by the employment that began June 15, 1933.
The petitioner makes another argument which merits attention because unless disposed of it might make trouble at any further hearing of this matter before the Commission. It appears that in a proceeding begun by Bonner to recover compensation for the disability resulting from his diseased condition, the Commission determined, in 1939, that his right to relief was barred by the statute. Among other findings made was one to the effect that during the course of Bonner’s employment with the J. F. Shea Co., Inc., between June 15, 1933 and April 18, 1936, he "sustained an industrial injury, being silicosis. * * *" Petitioner contends that this is a finding of fact which closes the door, in the proceeding instituted by her, to all inquiry as to the time when Bonner first contracted silicosis, presenting in support of her contention: (a) "No award of compensation shall be rescinded, altered, or amended after 245 weeks from the date of the injury," Labor Code, sec. 5804; (b) the 1939 finding renders the date of injury res judicata; (c) the commission is estopped to make a different finding. None of these theories is tenable.
With respect to the limitation of section 5804, two answers suggest themselves. In the first place, in the light of what the cases have said about the nature of silicosis as an injury, a further finding to the effect that Bonner first contracted silicosis during some employment previous to June 15, 1933, would not be inconsistent with, and so be regarded as an attempt to modify, the finding of 1939, made to determine the running of the statute of limitations, that between 1933 and 1936 he had "sustained an industrial injury." But if the new finding could be said to be an alteration of the old, it would not, by section 5804, be placed beyond the jurisdiction of the Commission to make, for the applicant in the new proceedings is a minor, and that proceeding is protected against the limitations of section 5804 by these words of section 5408 of the Labor Code: "* * * no limitation of time provided by this division shall run against any person under twenty-one years of age or any incompetent unless and until a guardian or trustee is appointed." A minor, certainly, in a proceeding which would be barred but for section 5408, cannot be permitted to take the position that the Commission has jurisdiction to make findings in her favor but no jurisdiction to make findings which do not favor her.
Nor is the power of the Commission to make a further finding, even if it be inconsistent with the 1939 finding, lacking because of the common law doctrine of res judicata. The authorities agree that during the period when the Commission "has continuing jurisdiction over all its orders, decisions, and awards" so that "at any time, upon notice and after an opportunity to be heard is given to the parties in interest, the commission may rescind, alter, or amend any such order, decision, or award, good cause appearing therefor," quoting from section 5803, Labor Code, a finding is not res judicata. Cowell v. Industrial Acc. Comm., supra, 11 Cal.2d 172, 178, 78 P.2d 1016, and cases cited. The Cowell case is quite in point. There, in a proceeding instituted by an injured employee, the Commission had found that a corporation was the employer and made an award against it, discharging two individuals who had been named defendants at the Commission’s order because they were thought to be employers. Thereafter the employee died, and his two minor sons filed an application for a death benefit in which they claimed that the two individuals who had been discharged were the employers. The sons’ proceeding was consolidated with one instituted by the widow, and the corporation and the two individuals were found by the Commission to have been the employers and an award made against the three of them.
The individuals referred to appear as the petitioners in the Cowell case, contending, among other things, that the award against them violates the principles of res judicata. Of this contention the court states (11 Cal.2d at page 178, 78 P.2d at page 1020): "Neither were the findings and awards made during the life of the employee res judicata upon the subject of petitioners’ status. This is so because the applications for death benefit made by the widow and children were filed well within the period during which the commission had continuing jurisdiction of the cause, to take further evidence or, upon due showing, to rescind, alter, or amend prior findings and awards. The commission committed no impropriety and no act in excess of jurisdiction in entertaining the applications of the dependents, in rehearing the issues, and in rendering altered findings. To such procedure the doctrines of res judicata, and estoppel, are inapplicable. This is well settled. [Citing cases.]" True, in the Cowell case, the applications of the widow and of the sons were filed within some 130 weeks after the date of the injury, so that whatever limitation section 5804, Labor Code, places upon the Commission’s continuing jurisdiction did not apply. But, again we point out, by virtue of section 5408 of the Labor Code its time limits respecting industrial accident proceedings do not apply with respect to minors until guardians are appointed for them, and in the case now under review the petitioner had applied for a death benefit before a guardian was appointed. In deciding her application, then, the Commission’s jurisdiction was still continuing, so that if any finding which it should determine it was proper to make could be said to be a modification of the 1939 finding, it would have power to make it. By the reasoning of the Cowell case, therefore, the 1939 finding cannot stand in the way of a new finding because of the doctrine of res judicata.
Petitioner’s third position is expressed thus: "Having once found that decedent was disabled in his employment, the Commission should be estopped from finding, upon the same evidence, after his death, that he was not so injured or disabled, since his dependents are otherwise left in the position where they are required to prove that which neither the Commission nor respondents ascertained or proved by the evidence previously submitted to the Commission." What we have stated earlier in this opinion, particularly respecting the lack of evidence and the burden of proof, perhaps cures the evil to which the petitioner here voices an objection. If so, the objection does not question the right of the Commission to make a finding that silicosis was incurred prior to 1933, upon sufficient evidence. Upon a new hearing it is not to be supposed that the Commission will make a finding that Bonner contracted silicosis before June, 1933, if the evidence before it is no different from that it already has had. On no theory of which we know can it be said that the Commission will be estopped to find that the disease began in 1932, if there is evidence to support such a finding. On a rehearing of this proceeding, therefore, the time when Bonner first contracted silicosis will be a proper subject of inquiry.
For the reasons given, the award is annulled.
PARKER WOOD, J., concurs.
SHINN, Acting Presiding Justice (concurring).
I concur in the judgment and in the reasons given therefor, except upon the last point discussed as to the conclusiveness of the finding at the former hearing of the time when petitioner’s father sustained an industrial injury, namely, between June 5, 1933, and April 18, 1936. Where the injury is the disease of silicosis, which comes on gradually and may progress through several different employments, I think the former finding would not be in conflict with a possible later finding that the employee had suffered an industrial injury from silicosis prior to June 5, 1933. But however that may be, I think the Commission in the present proceeding for recovery of the death benefit would not be bound by a finding as to the time when the injury was sustained, made in the proceeding to recover compensation for injury. Section 5803 of the Labor Code provides in part: "The commission has continuing jurisdiction over all its orders, decisions, and awards made and entered under the provisions of this division. At any time, upon notice and after an opportunity to be heard is given to the parties in interest, the commission may rescind, alter, or amend any such order, decision, or award, good cause appearing therefor. " In the exercise of this jurisdiction the Commission may, where good cause therefor appears, make findings at variance with or contrary to those previously found. Bartlett Hayward Co. v. Industrial Acc. Comm., 1928, 203 Cal. 522, 265 P. 195. The power to alter or amend an order, decision or award would have little efficacy if new awards had to be based upon the former findings. The only limitation upon the continuing jurisdiction of the Commission is found in section 5804, which provides that: "No award of compensation shall be rescinded, altered, or amended after 245 weeks from the date of the injury." This section is inapplicable here for reasons which are not recognized in the main opinion. A proceeding for the recovery of a death benefit should be deemed a separate proceeding from one to recover compensation for injury insofar as may be necessary to allow the Commission to exercise its full powers in connection with a claim for a death benefit. An award of compensation for injury in a proceeding instituted by an employee cannot be considered as having been made in a later proceeding for the recovery of a death benefit. Of course the powers of the Commission are the same whether it be considered that there are two proceedings or only one for the claims are separate in substance as is the procedure for their enforcement. In no view of either can an award of a death benefit be regarded as a rescission, alteration or amendment of a previous award of compensation for injury within the meaning of section 5804. It would seem clear that the section was not intended to apply to original applications to recover the death benefit. Under section 5406, Labor Code, the claim of an adult for a death benefit may in some cases be filed as late as 240 weeks after the injury, and in the case of a minor that time would not begin to run until a guardian had been appointed, which, of course, might be long after the expiration of 245 weeks. A claim for a death benefit may be, and often is, allowed even though there has been no proceeding on behalf of the employee. Petitioner’s claim was filed within the time allowed by law and in such cases, whether the claimant be an adult or a minor, the Commission has jurisdiction to proceed in the usual course to a final decision. Section 5804 imposes no restriction on the jurisdiction of the Commission, in a proceeding to recover the death benefit, to decide all pertinent questions of fact, even though such decisions may be contrary to findings on the same issues made in an earlier proceeding by the employee to recover compensation for injury. Under any construction of the earlier finding, it is not conclusive as to the date when petitioner’s father contracted silicosis as an industrial injury, even though petitioner’s application for the death benefit was filed long after the expiration of 245 weeks from the time of the injury, as found in the first proceeding.