Opinion
Page __
__ Cal.App.2d __ 236 P.2d 609 SUBSEQUENT INJURIES FUND OF STATE v. INDUSTRIAL ACC. COMMISSION et al. Civ. 18524. California Court of Appeals, Second District, Second Division Oct. 24, 1951.Hearing Granted Dec. 18, 1951.
Subsequent opinion 244 P.2d 889.
Edmund G. Brown, Atty. Gen., and Stanford D. Herlick, Deputy Atty. Gen., for petitioner.
Edmund J. Thomas, Jr., San Francisco, and Thomas L. Higbee, San Diego, for respondent Commission.
Riedman & Silverberg, Long Beach, for respondent Lois A. Patterson.
[236 P.2d 610] McCOMB, Justice.
Petitioner seeks to review and annul that portion of an order of respondent commission (hereinafter referred to as the commission), awarding compensation to Lois A. Patterson (hereinafter referred to as the employee), for benefits which he claims against petitioner (Subsequent Injuries Fund of the State of California).
Chronology
i. May 7, 1945, employee received a compensable injury to his left eye.
ii. February 8, 1946, the employee received a second compensable injury to his right eye.
iii. June 30, 1946, the employee filed timely application for compensation benefits for the injuries.
iv. January 9, 1947, after hearing the commission made findings and award for separate and distinct periods of temporay disability in each case and in addition the following finding: '3. Applicant's condition is not yet stationary and permanent, and jurisdiction is hereby reserved to determine extent of permanent disability within 245 weeks from date of injury upon request of any party in interest.'
v. January 24, 1947, the employee filed in each case a 'petition for permanent disability rating.'
vi. July 6, 1948, the permanent disability rating bureau of the commission recommended a rating of 24% permanent disability resulting from the last industrial injury and 73 3/4% for the permanent disability resulting from both injuries.
vii. January 31, 1950, the commission made findings and an award in accordance with the recommendations of the rating bureau.
viii. May 26, 1950, the employee filed his claim against petitioner pursuant to the provisions of section 4751 of the Labor Code.
Section 4751 of the Labor Code reads: 'If an employee who is permanently partially disabled received a subsequent compensable injury resulting in additional permanent partial disability so that the degree of disability caused by the combination of both disabilities is greater than that which would have resulted from the subsequent injury alone, and the combined effect of the last injury and the previous disability or impairment is a permanent disability equal to 70 percent or more of total, he shall be paid in addition to the compensation due under this code for the permanent partial disability caused by the last injury, compensation for the last injury as provided in this article.'
ix. January 23, 1951, after a hearing at which petitioner contended that the employee's claim was barred by the statute of limitations as set forth in section 338(1), of the Code of Civil Procedure, the commission made an award against petitioner for compensation for the difference between the 73 3/4% permanent disability resulting from the combined injuries and the 24% permanent disability resulting from the last injury. The commission expressly found that the employee's claim against petitioner was not barred by the statute of limitations.
Section 338(1), Code of Civil Procedure reads: 'Within three years: 1. An action upon a liability created by statute, other than a penalty or forfeiture.'
Questions: First: Is section 4754 of the Labor Code constitutional, and did it confer jurisdiction upon the commission to make the award here in question?
Section 4754 of the Labor Code reads: 'The commission shall fix and award the amounts of special additional compensation to be paid under this article, and shall direct the State Compensation Insurance Fund to pay the additional compensation so awarded. Such additional compensation may be paid only from funds appropriated for such purpose. Out of any such appropriation the fund may reimburse itself for the cost of service rendered in payment of compensation awards pursuant to this article and maintenance of accounts and records pertaining thereto, which cost shall not exceed 5 percent of the amount of award paid.'
Yes. In The Subsequent Injuries Fund of the State of California v. Warnock, second Civil 18016 (1950), the petitioner herein contended in an application for [236 P.2d 611] a writ of review that section 4751 of the Labor Code (Subsequent Injuries Fund section) was unconstitutional on the ground that payments thereunder were not 'workmen's compensation' within the meaning of Article 20, Section 21, of the State Constitution. This court on August 21, 1950, denied petitioner's application and on October 19, 1950, the Supreme Court denied a petition for a hearing. No reason has been presented to show that such decisions were erroneous.
Second: Was the employee's cause of action barred by the statute of limitations (Sec. 338(1), Code of Civil Procedure)?
No. Petitioner contends that since more than three years elapsed from the time of the employee's injury until his claim was filed with it, such claim is barred by the statute of limitations.
This argument is fallacious for the reason that petitioner's cause of action did not arise until January 31, 1950, the date the commission made its award fixing at 24% the employee's permanent disability resulting from his second injury. No cause of action exists until the injured party has the right to sue or file a claim. (Cf. Hutchinson v. Ainsworth, 73 Cal. 452, 455, 15 P. 82.)
In the instant case until the commission made its award, the employee had no cause of action or claim against petitioner for it is self-evident that the commission might have found that there was no permanent disability or various degrees of permanent disability. Hence the finding of the commission was a prerequisite to any claim which the employee might file with petitioner.
Since the employee's claim was filed within the time permitted by the statute of limitations upon which the commission relies, it is unnecessary for us to determine which section of the code is applicable in a case such as is presented here.
The award is affirmed.
MOORE, P. J., concurs.