Opinion
Hearing Granted Sept. 8, 1967.
Zonni, Ginocchio & Taylor and Ralph J. Ginocchio, Los Angeles, for petitioners.
Everett A. Corten, San Francisco, and Edward A. Sarkisian, Los Angeles, for respondent, Appeals Board.
McCOY, Associate Justice pro tem.
By assignment of the Chairman of the Judicial Council.
An employer and insurer seek review and annulment of an award against the insurer for temporary and permanent disability benefits and reimbursement for expenses of self-procured medical treatment.
Petitioners contend that the claim is barred by the statute of limitations in section 5411 of the Labor Code. The Workment's Compensation Appeals Board found that the applicant's injury is an occupational disease, that section 5412 is the applicable statute of limitations, and that the claim is not barred.
There is not dispute as to the facts. Applicant was employed by Fruehauf Corporation from July 21, 1962, through July 5, 1964, except for a period of general layoff from February to June 1964. His work as an assembler involved making missile fuel carriers and repairing heavy trailers. It required him to lift up to 75 to 80 pounds. Two or three weeks before October 3, 1963, he began to experience sharp pains in the groin and a swelling of the testicles. The condition gradually became worse over several weeks. On October 3, 1963, he obtained medical treatment. He took off Applicant continued to work until Friday, July 2, 1964. On Monday, July 5, he advised his employer by telephone that he was having a lot of trouble and was going to a doctor. The employer did not recommend a company doctor. Applicant first went to a doctor on July 5. When his condition worsened he was hospitalized by Dr. Sternberg on August 17 for two and a half weeks for tests and examinations. On September 3, 1964, a laminectomy was performed by Dr. Dodge, a neurologist, which involved the removal of three protruded lumbar intervertebral discs and decompression of subjacent nerve roots.
Although the employer was informed of applicant's disability, the applicant did not seek compensation benefits. However, he did seek benefits under the employer's group insurance health plan. A few days before October 10, 1964, the group insurance carrier rejected his medical bills on the ground that his disability was industrially caused. On October 10, 1964, Dr. Sternberg in the presence of Dr. Dodge told him for the first time that his condition was caused by the type of work he had been doing before the surgery. He filed his claim for compensation on July 12, 1965. It is conceded that he received no compensation from the petitioners.
The appeals board found that the applicant sustained injury during the entire period of employment, that the injury is an "occupational disease" within the meaning of section 5412, and that applicant first knew, or in the exercise of reasonable diligence should have known, that disability was caused by his employment when he was so advised by his doctor on October 10, 1964, and that his claim is not barred by sections 5504 and 5505 of the Labor Code.
The period within which proceedings may be commenced for compensation benefits is one year from the "date of injury" or from the date of last furnishing of medical, surgical or hospital treatment, or the expiration of any period covered by the payment of disability benefits. (Lab.Code, § 5405.) " 'Injury' includes any injury or disease arising out of the employment * * *" (Lab.Code, § 3208). Labor Code, section 5411, provides: "The date of injury, 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." Labor code, section 5412, provides: "The date of injury in cases of occupational diseases is that date upon which the employee first suffered disability therefrom and either knew, or in the exercise of reasonable diligence should have known, that said disability was caused by his present or prior employment."
Sections 5405, 5411 and 5412 of the Labor Code were enacted concurrently as they now read in 1947. (Stats.1947, c. 1034, p. 2307, §§ 3, 5 and 6.) The term "occupational disease" was again used by the Legislature in 1951 when it enacted section 5500.5 of the Labor Code. So far, however, the Legislature has not enacted a statutory definition. In 1955 the Senate Labor Committee recommended the adoption of a statutory definition of the term "occupational disease" as used in these sections of the Labor Code but no action was taken by the Legislature. The decision of the board in the case before us appears to be based on an erroneous interpretation of Argonaut Ins. Co. v. Industrial Acc. Com., 231 Cal.App.2d 111, 41 Cal.Rptr. 628. While it may be true, as the court there said, that there is a great similarity between occupational disease cases and other continuous or cumulative type of injury cases the court did not there hold that the two types of cases were the same. By the enactment of sections 5411 and 5412 the Legislature has declared that there is a difference between them which must be recognized by the board and by the courts. This difference becomes readily apparent when we consider some of the relevant cases.
It was suggested that a section provide, in effect, that "occupational disease" means "a disease or infection which is due to causes and conditions which are characteristic of and peculiar to a particular trade, occupation, process or employment; and that physical deterioration and ordinary diseases of life to which the general public is exposed outside of the employment shall not be compensable, except when competent medical evidence shows the physical condition or disease had its origin in a risk connected with the employment and flowed from that source as a natural consequence." (See Second Partial Report Relating to Workmen's Compensation by the Senate Labor Committee, pp. 9-11, Vol. 2, Appendix to Journal of the Senate, Reg. Sess., 1955.)
"More and more, the commission and the courts are coming to regard continuous cumulative injury as a precipitating event even though with no specific incident of work, which ultimately results in disability, in somewhat the same light as successive exposures to occupational disease which has required apportionment. As said in Hanna, supra, page 134, there is a great similarity between occupational disease cases and other continuous or cumulative type injury cases. In either case the workman's ultimate disability is due to continuous exposure at work to the particular situation which finally causes his physical breakdown. Moreover, in each case there is no compensable injury until the disability occurs." (231 Cal.App.2d at pp. 118-119, 41 Cal.Rptr. at p. 632.)
Although no California court has attempted to formulate an all-inclusive definition of an "occupational disease," the term as it relates to workmen's compensation cases has been considered on a number of occasions. The earliest of these appears to be Associated Indem. Corp. v. Indus. Acc. Com., 124 Cal.App. 378, 12 P.2d 1075, decided in 1932. There the applicant was an employee of a tiling concern. "In working about the tile which his employer manufactured, his lungs became affected by the dust which constantly arose from the product while he was working over it." (P. 379, 12 P.2d p. 1075.) He was incapacitated because of the gradual increase of the disaffection over a period of three years or more being thereby forced to cease his employment. "An occupational disease," said the court (p. 381, 12 P.2d p. 1076), "such as that which is before us in the present proceeding, is one in which the cumulative effect of the continual absorption of small quantities of deleterious substance from the environment of the employment ultimately results in manifest pathology; any one exposure to the deleterious substance is inconsequential in itself, but the accumulation of repeated absorptions is the factor which brings about the disease."
Marsh v. Industrial Acc. Com., 217 Cal. 338, 18 P.2d 933, 86 A.L.R. 563, decided in 1933, held that silicosis was an occupational disease. That case involved the cases of three men who, "by reason of conditions incident to their employment * * * became affected with an occupational disease, such as is frequently contracted by miners working in tunnels, and which is medically known as pneumonoconiosis silicosis, or more simply as pneumoconiosis silicosis, a term denoting a disease of the lungs due to silica dust, and sometimes called merely silicosis." (P. 340, 18 P.2d p. 934.) This case was followed in Morrison v. Industrial Acc. Com., 42 Cal.App.2d 685, 109 P.2d 767. (See also Lab.Code, s- 5500.5.)
In Johnson v. Industrial Acc. Com., 157 Cal.App.2d 838, 321 P.2d 856, decided in 1958, after referring to the concept of an occupational disease as reflected in Associated Indem. Corp. v. Industrial Ac. Com., supra, 124 Cal.App. 378, 12 P.2d 1075; and in Marsh v. Industrial Acc. Com., supra, 217 Cal. 338, 18 P.2d 933, the court said (p. 840, 321 P.2d p. 857): "In Harman v. Republic Aviation Corp., 298 N.Y. 285, 82 N.E.2d 785, 786, the court pointed out: 'An ailment does not become an occupational disease simply because it is contracted on the employer's premises. It must be one which is commonly regarded as natural to, inhering in, an accident and concomitant of, Champion v. W. & L.E. Gurley,
In contrast to the cases just discussed we turn now to a consideration of three recent cases involving continuous or cumulative types of injuries.
Fireman's Fund Indem. Co. v. Industrial Accident Com., 39 Cal.2d 831, 250 P.2d 148, was decided in 1952. The question there was whether the claim had been filed within one year after "the date of injury" as provided in sections 5405 and 5411 of the Labor Code. As the court pointed out, no contention was made "that the situation here constitutes an 'occupational disease' within the meaning of Sections 5411 and 5412 * * *." (P. 833, 250 P.2d p. 149.) In that case the claimant, Gregory, suffered a stroke as the result of repeated physical and mental strains and tensions over a 65-day period while attempting to conclude contract negotiations with certain labor unions. In affirming the award the court said (p. 834, 250 P.2d p. 159): "Separately one day's strain may be slight, but when added to the strains which have preceded, it becomes a destructive force. Consequently, in deciding the responsibility for the stroke, it cannot be said that any one particular exposure to strain and tension was responsible. It can only be said that the total exposures resulted in the disability. Therefore, it must be concluded that the stroke here was the result of one continuous cumulative injury rather than series of individual injuries. If the strain and tension to which Gregory was subjected constituted one continuous injury, the statute of limitations did not begin to run until the last exposure to the causative force. The Legislature has laid down the rule that the limitations period is to run from the time of the exposure. Labor Code § 5411. In the case of a continuous injury this can only mean the time of the last exposure. To require the employee to file his claim within a limited time from the first exposure would be unreasonable. After a single exposure the employee might be totally unable to notice that a deleterious effect has taken place. Only after extended exposure may the effects become noticeable. Consequently, it should only be after the exposures constituting the continuous injury have been concluded that the period of the statute of limitations commences to run. For a summary of the case law in this general field see annotation, 11 A.L.R.2d 279."
In Beveridge v. Industrial Acc. Com., 175 Cal.App.2d 592, 346 P.2d 545, decided in 1959, the applicant, an electrician, first sustained a back injury in 1958 which aggravated a preexisting low back disability resulting from an injury in 1953. He suffered further back injury in 1956. The 1958 episode occurred "when he lifted a 70-pound coil of electrical conduit and felt a 'twinge' of pain in his back." Applicant continued work until December 17, 1958, and thereafter became totally disabled because of his back condition. Holding that December 17, 1958, was the date of the compensable injury within the meaning of section 5411, and that the claim was not The claimant in Argonaut Ins. Co. v. Industrial Acc. Com., 231 Cal.App.2d 111, 41 Cal.Rptr. 628, decided in 1964, had worked as a laborer and construction laborer or worker for about 10 years. During that period he engaged from time to time in heavy labors including heavy lifting and other efforts consistent with his employment. In July 1963 he noticed a pain in his leg and hip which forced him to quit early in August. Following a laminectomy in October he returned to work in December 1963. Before the August disablement applicant had no history of back trouble. The referee found that applicant's disability resulted from his employment as a laborer and "from a continuous insult to his back causes by the demands on a construction worker. " (P. 115, 41 Cal.Rptr. p. 630.) The court held that from the evidence and from the rulings in Fireman's Fund, supra, 39 Cal.2d 831, 835, 250 P.2d 148, and Beveridge, supra, 175 Cal.App.2d 592, 346 P.2d 545, "the Commission was justified in determining that applicant's microtraumata covered the period of his employment, and that his disability award should be prorated between the two carriers covering his employment during that period." (231 Cal.App.2d p. 117, 41 Cal.Rptr. p. 632.)
Before the enactment of sections 5411 and 5412 in 1947 it was settled that the statute of limitations did not commence to run until the employee's condition, whether from disease or injury, culminated in incapacity to work and the employee knew, or in the exercise of ordinary care should have known, that he was suffering from the disease or injury and that the disease or injury was caused by his employment. (Associated Indem. Corp. v. Industrial Acc. Com. (1945) 71 Cal.App.2d 820, 163 P.2d 771 [hernia]; Pullman Co. v. Industrial Acc. Com. (1946), 28 Cal.2d 379, 383-384, 170 P.2d 10, and cases cited therein [bursitis]; Pacific Indem. Co. v. Industrial Acc. Com. (1950), 34 Cal.2d 726, 728-729, 214 P.2d 530 [pulmonary tuberculosis].) This rule was changed by the enactment of sections 5411 and 5412. Under section 5411 the statute of limitations commences to run, except in cases of occupational disease, on the date when the injury occurs. In cases of continuous, cumulative injury that date "is the date of last exposure, when the cumulative effect causes disability." (Beveridge v. Industrial Acc. Com., supra, 175 Cal.App.2d at 595, 346 P.2d at 547.) In such cases the date of the employee's knowledge that the disability was caused by his present or prior employment is not the controlling factor that it is in cases of occupational disease.
Pacific Indem. Co. v. Industrial Acc. Com., 34 Cal.2d 726, 214 P.2d 530, involved a claim made in 1945; the opinion does not mention the 1947 legislation.
In our opinion the facts of this case contradict the board's opinion that the injury sustained by the applicant is an occupational disease within the meaning of section The award is annulled.
FORD, P.J., and COBEY, J., concur.