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Brunski v. Industrial Accident Commission of California

District Court of Appeals of California, First District, Second Division
May 7, 1927
256 P. 275 (Cal. Ct. App. 1927)

Opinion

Hearing Granted by Supreme Court July 5, 1927.

Proceeding under the Workmen’s Compensation Act by Anton Brunski against the Pacific Gas & Electric Company. From an order of the Industrial Accident Commission setting aside an order approving a compromise settlement, claimant brings certiorari. Order annulled.

COUNSEL

Warren H. Pillsbury, of San Francisco, for petitioner.

G. C. Faulkner, of San Francisco, for respondent Industrial Accident Commission.

John J. Briare, of San Francisco, for respondent Pacific Gas & Electric Co.


OPINION

STURTEVANT, J.

The petitioner applied to the Industrial Accident Commission to adjust his claim for damages sustained through an injury arising during his employment by, and growing out of his employment by, the Pacific Gas & Electric Company. After a hearing had the Commission rendered a decision on October 22, 1925. The Gas Company applied for and was granted a rehearing on December 4, 1925. Thereafter further evidence was taken. Thereafter the employee and the employer entered into a written agreement of settlement and release compromising the petitioner’s claim in the sum of $1,500. That compromise "was approved by the Industrial Accident Commission on December 16, 1925. Both parties concede it became final upon the expiration of 20 days, to wit, on January 5, 1926, no petition for rehearing having been filed in the meantime. On January 16, 1926, defendant filed a purported petition for rehearing asking for a rehearing of the proceeding and claiming that the original award of October 22, 1925, and the order approving the settlement agreement were procured by the fraud of Brunski. On January 28, 1926, the Commission entered an order (designating defendant’s petition as a petition to set aside the order approving settlement) suspending the order of December 16, 1925, and setting the case for further hearing." On April 19, 1926, the Commission filed a decision against the petitioner, but made no finding on the issue of fraud. Thereafter the petitioner applied for a rehearing, which was granted May, 25, 1926. Thereafter, on October 20, 1926, the Commission filed a decision "setting aside and annulling the order approving the settlement agreement, finding that said order was procured by extrinsic fraud and providing that the case should be submitted on rehearing on the record unless good cause be shown to the contrary in writing within 20 days." It should be noted that the Commission merely entered an order of approval of the compromise agreement. It did not adopt the agreement and, using it as a basis, make an award thereon. Section 27, subd. (c), c. 586, Stats. 1917. The petitioner did not apply for a rehearing, but filed in this court an application for a writ of review. The respondent makes a preliminary objection, saying:

"No petition for rehearing was ever filed by petitioner following the issuance of this final order of October 20, 1926, and under the provisions of section 64(a) and 64(b) of the Workmen’s Compensation Act this court has no power to review the proceedings or the order of October 20, 1926, made by the Commission."

The petitioner concedes the general scope of that rule, but contends that the rule does not apply to decisions on rehearing. Harlan v. Industrial Acc. Com., 194 Cal. 352, 228 P. 654; Compensation Act, § 67a. The authorities so cited by the petitioner certainly sustain his contention.

When the order was made by the Commission December 16, 1925, approving the compromise, and no petition for a rehearing was filed, this petitioner contends that the Commission lost jurisdiction to hear the application which was made on January 16, 1926, and which was the attack alleging fraud on the part of Brunski. The respondents contend that their jurisdiction was continuing, and they cite and rely on Statutes of 1917, p. 831, § 20, subd. (d). The power vested in the Commission by that portion of the statute, it has been held, is the power to make an examination into "the occurrence of new facts arising after the date of its original decision." Georgia C. Co. v. Industrial Accident Com., 177 Cal. 289, 293, 294, 170 P. 625. But the respondents reply that case was based on the statute as it formerly stood. Stats. 1913, p. 279, § 25d. That is a distinction without a difference so far as the point under discussion is concerned. The section of the statute as amended is:

"(d) The Commission shall have continuing jurisdiction over all its orders, decisions and awards made and entered under the provisions of sections six to thirty-one, inclusive, of this act and may at any time, upon notice, and after opportunity to be heard is given to the parties in interest, rescind, alter or amend any such order, decision or award made by it upon good cause appearing therefor, such power including the right to review, grant or regrant, diminish, increase or terminate, within the limits prescribed by this act, any compensation awarded, upon the grounds that the disability of the person in whose favor such award was made has either recurred, increased, diminished or terminated; provided, that no award of compensation shall be rescinded, altered or amended after two hundred forty-five weeks from the date of the injury. Any order, decision or award rescinding, altering or amending a prior order, decision or award shall have the same effect as is herein provided for original orders, decisions or awards."

The insertions and italicized portions included and constituted all of the amendments. The effect of "fraud" is dealt with in sections 82, 83, and 84 of the act of 1913 and in sections 65, 66, and 67 of the act of 1917. It is not mentioned in any of the earlier sections. As stated above, before the amendment, and in the absence of the italicized portion, it was held that the exercise of the continuing jurisdiction depended on "the occurrence of new facts." Now, when we look at the amendments of the statute we see that the amendments deal solely with "the occurrence of new facts"; that is, that the disability has "recurred, increased, diminished, or terminated." It is patent, therefore, that the amendment is not helpful to the respondents in the instant case. The respondents cite many cases from other jurisdictions. They are not helpful. They are based on statutes not identical with our statutes, and in some instances not similar.

It is not controverted but what the Commission may, under certain circumstances, entertain attacks on orders and awards which were procured by fraud. Section 65(a), subd. 2, and section 66 (a), subd. 2, c. 586, Stats. 1917. But according to the wording of those sections the attacks should be in the form of applications for rehearing and such applications should be filed within 20 days after the service of the order or decision which is being attacked. As the employer did not file its application within 20 days it did not bring itself within the provisions of either of the sections cited. It is unnecessary, therefore, for this court at this time to go into the subject of whether the fraud mentioned in section 65 or section 66 is limited to extrinsic fraud.

For the reasons stated, the order of October 20, 1926, is annulled.

We concur: KOFORD, P. J.; NOURSE, J.


Summaries of

Brunski v. Industrial Accident Commission of California

District Court of Appeals of California, First District, Second Division
May 7, 1927
256 P. 275 (Cal. Ct. App. 1927)
Case details for

Brunski v. Industrial Accident Commission of California

Case Details

Full title:BRUNSKI v. INDUSTRIAL ACCIDENT COMMISSION OF CALIFORNIA ET AL.[*]

Court:District Court of Appeals of California, First District, Second Division

Date published: May 7, 1927

Citations

256 P. 275 (Cal. Ct. App. 1927)