PULLMAN CO v. INDUSTRIAL ACCIDENT COMMISSION

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District Court of Appeal, First District, Division 1, California.

PULLMAN CO. v. INDUSTRIAL ACCIDENT COMMISSION et al.

Civ. 12964.

Decided: December 18, 1945

Corbet & Selby, John Selby and Russel Shearer, all of San Francisco, for petitioner. R. C. McKellips, of San Francisco, for respondent Industrial Accident Commission.

This proceeding, now culminating in this petition for a writ of review, has had a long and somewhat complex history. On February 13, 1942, the applicant filed an application for compensation alleging that while employed by the Pullman Company as a seamstress sewing carpets by hand she sustained an injury on April 20, 1940, by twisting the thimble finger of her right hand, resulting in injury to her right arm and shoulder. The Pullman Company, while admitting that the applicant was employed by it, denied the injury, denied the industrial character of the injury, and affirmatively pleaded the statute of limitations. At the hearing, held in March, 1942, the applicant testified to twisting her thimble finger on April 20, 1940. She reported to the company doctor. Thereafter, according to her testimony, she continued on the same job, but her arm and shoulder became increasingly painful. She secured her own physician who gave her some treatments, which caused some slight improvement. She worked for the company during all periods work was available until January of 1942, when her arm and shoulder became so painful that she was forced to quit work. She testified that the reason she did not file her claim until February of 1942 was that she believed she had no right to compensation while she was still working full time.

The company doctor testified that the applicant probably had some form of neurities which he admitted might have been aggravated by her employment.

Dr. Fraser, the personal doctor of the applicant, diagnosed her condition as ‘1. A radial-humeral bursitis. 2. Epicondy-litis, right humerus. 3. Deltoid myositis, right shoulder.’ He stated that the condition could have been caused by some infection but that no definite foci of infection have been found; that the condition ‘could be produced by occupation requiring repeated motion over a prolonged period of time.’

A medical examiner appointed by the Commission testified that the applicant probably had an inflammatory arthritic condition which would be benefited by rest and aggravated by constant use of the parts involved.

On May 11, 1942, the Commission filed its findings and award. It found that the applicant on or about April 20, 1940, sustained an industrial injury resulting in ‘radial-humeral bursitis, epicondylitis and deltoid myositis in right major hand, arm and shoulder from repeated motions of hand and arm while sewing carpets and curtains over a period of years beginning in 1929.’ It then found that temporary disability resulted from this injury in January, 1942, and that the claim was not barred by the statute of limitations because it was filed within six months of the date disability was first suffered. The award was for temporary disability starting January 30, 1942, and for medical treatment.

The employer petitioned for a rehearing and, upon its denial, petitioned the appellate court for a writ of review. The records of this court (Pullman Co. v. I. A. C., 1 Civ. 12,256, Div. Two) show that this petition was denied September 1, 1942, without opinion, and that a petition for rehearing was denied October 1, 1942. A petition for a hearing in the Supreme Court was denied October 29, 1942. An examination of these various petitions discloses that it was there contended by the Pullman Company that the injury was non-industrial and, if industrial, was barred by the statute of limitations. The Commission took the position that the evidence supported the finding that the injury was industrial in nature, that the evidence showed that the injury was an occupational one, and that a disabling disability did not occur until January of 1942 when the applicant was forced to quit work. It was therefore argued that for the purposes of the statute of limitations the date of injury was the date of the disability, namely, January of 1942.

This original award has long since become final and is, of course, res judicata in this proceeding unless reopened by the Commission as hereafter pointed out. An examination of the record up to this point demonstrates, beyond any doubt, that, although the Commission found that the applicant twisted her finger in April of 1940, the theory of the award was that the disability was an occupational one caused by the constant use of the arm and shoulder over a long period starting in 1929 and not resulting in a compensable disability until January of 1942.

On November 24, 1942, the employee petitioned for a permanent disability rating. At the hearing on this petition, at which it was stipulated that the only issue was the nature, extent, and duration of the disability, it developed that the employee had not been employed since the last hearing and that treatments had not materially improved her condition. A doctor's report dated December 4, 1942, diagnosed her condition as ‘a radio-humeral bursitis involving the right elbow joint. It is also my opinion that it is industrial in origin and has resulted from the type of work entailed.’ The doctor was of the opinion that the employee could do light work without interfering with eventual recovery, and that there would be no permanent disability. The company promised to give the employee some light work. On February 5, 1943, the Commission filed its ‘Order Amending Findings and Award.’ By this order the original findings of May, 1942, were amended to provide that the temporary total disability continued to November of 1942 and that thereafter the employee had a temporary partial disability. It was further found that the ‘applicant's condition has not yet become permanent and stationary, and jurisdiction is reserved to rate for permanent disability, if any exists, when the condition shall have become stabilized, provided application therefor is filed within 245 weeks from the date of injury.’

On September 7, 1943, the Pullman Company filed an application for termination of its liability. On September 18, 1943, the employee petitioned for a permanent disability rating. The two proceedings were consolidated for hearing. At the hearing on these petitions certain medical reports were introduced, and the testimony of the employee taken. She testified that she had accepted from the employer light work sorting screws in March of 1943 and was then so working; that she had lost some time from work because of her disability; that she was getting much less per hour than formerly; that the pain and discomfort continued; that there had been no improvement and that the arm was getting weaker. The Medical Director of the Commission filed a report stating that, in his opinion, the employee either consciously or unconsciously exaggerated her symptoms and concluded that no factors of disability were ascertainable. The Commission, on November 30, 1943, made its Supplemental Order by which it terminated liability for temporary disability and denied the petition for a permanent disability rating. By this order it is found that the temporary disability terminated as of March 2, 1943, and that ‘the evidence is insufficient to show that the injury has resulted in permanent disability or that the condition, at the present time, is permanent and stationary.’

On January 31, 1944, the applicant filed a ‘Petition for New and Further Disability Indemnity,’ in which it was alleged that since the last hearing applicant had suffered new and further temporary total disability. In this petition she referred to the reports of Dr. Gordon W. Roberts dated October 20, 1943, and January 19, 1944. The October report of Dr. Roberts stated that examination of the applicant disclosed that she was ‘definitely disabled and that her disability has been gradually coming on over a long period of time, directly caused by her occupation.’ He was of the opinion that the applicant was not malingering and recommended physiotherapy and complete rest. The January 19, 1944, report stated that the applicant was ‘still unable to resume her regular occupation,’ and recommended physiotherapy and massage.

A hearing on this petition was had in February, 1944. The applicant testified that she was still working for the Pullman Company sorting screws, but that even that light work was very painful to her; that her condition was getting worse; that she had lost at least a day a week from her employment because of her disability. The work sheet of this employee corroborated her statement that she had been absent from her work at least one working day each week.

The defendant introduced a report of Dr. Dickson. He was of the opinion that the symptoms of radio-humeral bursitis had subsided and that she was suffering from fibromyositis. He was unable to account for the marked weakness in the grip of the patient's right hand. He thought she unconsciously exaggerated her symptoms. The referee recommended an independent medical examination and appointed Dr. Fender for this purpose. This doctor was of the opinion that ‘the patient simulates findings that scarcely can be credited. In spite of this, I feel that she has real disability proceeding from her work.

‘The alleged injury of April 20, 1940, is felt to be only a culminating event. I should be more inclined to blame the intermittent employment in one type of work from 1929 to 1940.

‘The patient appears to be suffering from a seamstress' version of ‘writer's cramp’ * * *

‘* * * I believe the applicant suffers from partial temporary disability.’ He recommended that an examination be had by Dr. Howard, a neurologist. She was examined by Dr. Howard and he was of the opinion that her illness was not caused by her work, and that she was not disabled. The Medical Director of the Commission was of the opinion that applicant's complaints ‘are on a functional basis,’ and recommended settlement or some other form of closure of the case in the best interests of all concerned.

Thereafter, a settlement of some kind was offered to applicant, which she refused. Later, further medical reports were secured. In February, 1945, Dr. Fraser's report was introduced on behalf of the applicant. He described the applicant's symptoms and recommended a further course of treatment. In the same month the Rating Bureau of the Commission made its report recommending a rating of 51 1/414% as to permanent disability.

On April 10, 1945, the referee filed his report and his proposed findings and award. In his report the referee commented upon the obvious disagreement of the doctors as to the cause and extent of the disability. He was of the opinion that the weight of the evidence supports two conclusions: ‘First, that applicant suffered industrial injury consisting of radial-humeral bursitis, epicondylitis and deltoid myositis in right major hand, arm and shoulder; and secondly, that the condition must now be considered permanent and stationary.’ He discussed the reports of Dr. Howard and Dr. Fender and placed considerable reliance on the conclusions of the latter. On April 10, 1945, an ‘Order Amending Supplemental Order Terminating Liability for Temporary Disability and Denying Petition for Permanent Disability Rating and Amending Order Amending Findings and Award and Fixing Permanent Disability Rating’ was filed. In this order it is found that applicant while employed by the Pullman Company was injured on or about April 20, 1940, and suffered from radial-humeral bursitis, epicondylitis and deltoid myositis ‘from repeated motions of hand and arm while sewing carpets and curtains over a period of years beginning in 1929.’ The degree of permanent disability is fixed at 51 1/414%, the amount of the monetary award fixed and the applicant denied further medical treatment.

After the award was filed on April 10, 1945, the employer petitioned for a rehearing. In this petition the employer raised but three issues: (1) That the Commission disregarded the medical evidence; (2) that the evidence was insufficient to support the findings of permanent disability, or any disability, or 51 1/414% disability; (3) that the original claim is barred by the statute of limitations because not filed within the time permitted by law after receipt of the injury. Upon denial of this petition for a rehearing the application for the present writ of review was filed.

It is the employer's main contention that the Commission has found that the date of injury was April 20, 1940; that 245 weeks from that date would be December 30, 1944; that the Commission, under Labor Code, § 5804, St.1937, p. 301, loses jurisdiction to rescind, alter or amend an award after 245 weeks from the date of injury; that for this reason the amending order filed on April 10, 1945, was void and of no effect. There are two answers to this contention.

In the first place, if it be assumed that the date of injury was April 20, 1940, and that the 245 week period prescribed by § 5804 of the Labor Code expired on December 30, 1944, it does not follow, as a matter of law, that the Commission had no jurisdiction to enter its order of April 10, 1945, after the 245 week period had expired. The petition upon which the award was based was filed January 31, 1944, some eleven months before the expiration of the 245 week period. Notice of the hearing was given and the actual hearing had well within the period. The long delay was caused by the necessity of securing further medical reports so as to ascertain whether the condition had become permanent. All such reports, with the exception of two, were filed before December 30, 1944. The law does not place an absolute period of 245 weeks within which the Commission can act. Labor Code, § 5410, St.1937, p. 296, provides: ‘Nothing in this chapter shall bar the right of any injured employee to institute proceedings for the collection of compensation within 245 weeks after the date of the injury upon the ground that the original injury has caused new and further disability. The jurisdiction of the Commission in such cases shall be a continuing jurisdiction at all times within such period. * * *’ (Italics added.) Note that this section confers the right upon the employee ‘to institute’ the action within 245 weeks of the date of injury. So far as this section is concerned all that is required is that the proceeding be started within the 245 week period. But this section does not stand alone. It must be read with §§ 5803 and 5804 of the Labor Code, St.1937, p. 301. Section 5803 provides: ‘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 * * * the commission may rescind, alter, or amend any such order, decision, or award, good cause appearing therefor. Such power includes the right to review, grant or regrant, diminish, increase or terminate, within the limits prescribed by this division, any compensation awarded * * *.’ Section 5804 provides: ‘No award of compensation shall be rescinded, altered, or amended after 245 weeks from the date of the injury.’

If § 5410 stood alone it would follow that all that is required is that the proceeding must be instituted by the employee within 245 weeks. If § 5804 stood alone the Commission would have no power to enter its order altering, rescinding or amending its awards after the expiration of 245 weeks from the date of injury. But neither section stands alone. Both must be read together, and with § 5803. This last section requires that notice and opportunity to be heard be given within the 245 week period. When the three sections are read together, the only reasonable interpretation is that if the proceeding is instituted within 245 weeks of the date of injury (§ 5410), and if the other side is given notice and an opportunity to be heard within that time (§ 5803), the Commission may enter its award after the expiration of the 245 week period in spite of the language of § 5804.

The employer places its reliance for a contrary construction of these sections on Larsen v. Industrial Acc. Comm., 125 Cal.App. 13, 13 P.2d 850, and on certain decisions of the Commission following the Larsen case. In the Larsen case the Commission, on its own motion without notice to the parties and on the last day of the 245th week, changed its prior award. The employer thereupon petitioned for a rehearing, which was granted, and upon such rehearing the modifying award was affirmed. The appellate court properly held that the entire proceedings were void. This is so because the Commission has no power, on its own motion, to amend or modify a valid award without notice and an opportunity to be heard. For this reason the modifying order was void and all proceedings based thereon were void. It was the failure to give notice that rendered the original order void, not the fact that the court thereafter acted beyond the 245 week period. Lyydikainen v. Industrial Acc. Comm., 36 Cal.App.2d 298, 305, 97 P.2d 993. The case did not hold that the Commission has no power to enter a modifying order after the expiration of 245 weeks, but, quite to the contrary, pointed out at least one situation where that would be proper.

That the rule of the Larsen case does not prohibit all action by the Commission after the expiration of the 245 weeks is demonstrated by the case of Gobel v. Industrial Acc. Comm., 1 Cal.2d 100, 33 P.2d 413. In that case, the Commission had awarded the employee certain temporary disability benefits. These were terminated May 9, 1929, the Commission finding that the temporary disability had terminated on that date. Thereafter, and on May 13, 1933, which was within two days of the expiration of the 245 weeks from the date of injury, the employee filed a petition to reopen the case on the ground that the original injury had caused a new and further disability. The Commission dismissed this petition on the ground that reasonable notice and a hearing could not be given or had within the two-day period, and that it had no power to reopen by an order made after the expiration of the 245 week period. The Supreme Court annulled the order of dismissal and ordered the Commission to assume jurisdiction. The Court distinguished the Larsen case on the ground that there the Commission purported to make an order without notice or hearing. It was pointed out that the petition here was for an award for a new and further permanent disability (as is the order in the instant case) and that prior awards (as in the instant case) were for temporary disability. The Court therefore held that in such cases it is sufficient that the proceeding be commenced within 245 weeks, and that it need not be heard or decided before that time has expired.

This decision goes much further than it is necessary to go in the instant case. Here the petition for a further award was filed eleven months before the expiration of the 245 weeks, notice was given and hearing had long before the expiration of that period, and all that was done was to file two reports and to render the decision after that date. Under such circumstances the Commission did not exceed its jurisdiction.

A second conclusive answer to the contention that the award was unlawfully made beyond the period in which the Commission could act is to be found in the fact that it has been judicially determined in this case that the date of injury, as those words are used in the statute, was not April 20, 1940, but January, 1942. It will be remembered that the original application was filed on February 13, 1942. If the original compensable injury occurred on April 20, 1940, then, obviously, the action was barred by the statute of limitations contained in § 5405 of the Labor Code, St.1937, p. 295. That section, with certain exceptions not here involved, provides that any proceeding to collect compensation must be commenced within six months of the date of injury. The applicant had alleged that the injury occurred on April 20, 1940. The Pullman Company vigorously urged before the Commission and before the Appellate and Supreme Courts on petition for a writ of review that the claim was barred by the statute of limitations. It seeks to renew that contention now. The Commission found, however, that, although the applicant had twisted her finger on April 20, 1940, she did not suffer a disabling injury until January of 1942, when she was forced to quit work. The Commission expressly found that the claim was not barred by the statute of limitations because it was filed within six months of the date of disability. A reading of this voluminous record demonstrates to a certainty that it always has been the theory of the Commission that this applicant was suffering from an occupational disease which came upon her over many years, starting in 1929; that in April, 1940, she first became aware of pain from the occupational disease as a result of twisting her thumb, but the pain and discomfort did not result in a disabling injury until January of 1942. Under such circumstances the ‘date of injury’ within the meaning of § 5405 of the Labor Code, and within the meaning of § 5804 of that Code, is the date that 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.’ Marsh v. Industrial Acc. Comm., 217 Cal. 338, 351, 18 P.2d 933, 938, 86 A.L.R. 563. The rules applicable to the statute of limitations as applied to occupational diseases have recently been summarized as follows: ‘The rule to be drawn from the decisions is that to start the statute of limitations running in the case of a claimant suffering from an occupational disease at least three conditions must concur: (1) The disease must have so far progressed as to disable the claimant from the performance of his duties to such extent that he is entitled to compensation under the workmen's compensation law; (2) the claimant must know or in the exercise of ordinary care should have discovered that he is suffering from the occupational disease; and (3) he must likewise know or should in the exercise of such care have discovered that he is suffering a compensable disability of which the occupational disease is the cause.’ Williams v. Industrial Acc. Com., Cal.App., 161 P.2d 979, 981; see, also, Price v. Industrial Acc. Comm., 9 Cal.App.2d 213, 49 P.2d 294; Argonaut Mining Co. v. Industrial Acc. Comm., 21 Cal.App.2d 492, 70 P.2d 216. It was on this theory that the original award was made on May 11, 1942. It was on this theory that that award was defended by the Commission before the Appellate and Supreme Courts when the employer petitioned for a writ of review. The petitions for a writ of review and for a hearing were denied. Were the original award before us now for review, which it is not, we would hold that the ‘date of injury’ within the meaning of the statute of limitations was January, 1942, and that for that reason the original claim filed on February 13, 1942, was not barred by the statute of limitations. When the Appellate Court denied the petition for the writ of review and the Supreme Court denied the petition for hearing they must have decided that the claim was not barred. If the date of injury was April 20, 1940, the claim filed in February, 1942, was barred. Obviously, the only possible theory upon which the petitions for a writ of review and for a hearing could have been denied was that the claim was not barred, and the only theory upon which it could be so held was that the disease was occupational in character not resulting in a disabling injury within the meaning of the statute of limitations until January of 1942. The original award of May 11, 1942, expressly found that the claim was filed ‘within six months after applicant first suffered disability as a result of said condition,’ and further found that the disability commenced January 22, 1942. That award has become final. That decision is now res judicata. Williams v. Southern Pac. Co., 54 Cal.App. 571, 202 P. 356. It must now be accepted as a fact that the date of injury was January, 1942. Moreover, inasmuch as the denial of the petitions for a writ of review and hearing could only have been based on the theory that the date of injury was within six months of February 13, 1942, such denials, even without written opinion, must now be held to have rendered that issue res judicata. The cases of McDonough v. Garrison, 68 Cal.App.2d 318, 156 P.2d 983, and Funeral Dir. Ass'n v. Board of Funeral Dirs., 22 Cal.2d 104, 136 P.2d 785, do not compel a different conclusion. They held that a denial of an application for a discretionary writ without opinion was not necessarily a denial on the merits, and hence, not res judicata, because the denials could have been based on grounds other than the merits. The very holding in those cases suggests that the converse of the proposition is equally true, that is, that where the denial could only be based on the merits, such denial is res judicata. The many cases collected and cited by Mr. Justice Ward in his dissenting opinion in the McDonough case on this point (68 Cal.App.2d 337, 338, 156 P.2d 983) establish the truth of this proposition. The Commission, in reopening a case after a denial on the merits, is bound by the court's decision. Campbell, Workmen's Compensation, Vol. II, p. 1281, § 1546. For these reasons it has become the law of this case that the date of injury was within six months of February 13, 1942, which means not earlier than August 13, 1941. The Commission, in its April 10, 1945, award, had no power to fix the date of injury as April 20, 1940. In that connection the 1945 award merely used the same language used in the 1942 award that the applicant had been injured by twisting her finger in April of 1940, but in 1945 the Commission did not purport to pass upon or to amend its 1942 finding in reference to the statute of limitations. It is quite significant that by its award in 1945 the Commission fixed the start of disability payments as January 30, 1942, thus indicating that the first compensable injury then occurred. If this reasoning is sound, then obviously, since the date of injury could not have been prior to August 13, 1941, the 245 weeks had not expired on April 10, 1945, when the award was made, and has in fact, not yet expired.

Of course, as is pointed out in the dissenting opinion, the Commission can alter or amend its prior awards within 245 weeks from the date of injury. But the point is that the Commission has never reopened, for good cause, or otherwise, its 1942 determination that the original claim was not barred by the statute of limitations. The amendatory order of 1945 passed on the only issue presented to the Commission, namely, whether the disability had become permanent. There was no evidence at all presented to the Commission on the issue of the statute of limitations and the Commission did not pass upon any such issue. To hold, as does the dissenting opinion, that the reference in the 1945 order to April 20, 1940, as the date of injury (which reference was copied from the 1942 order) amounted to a new finding as to the date of injury and amended and modified the prior determination on the issue of the statute of limitations without so stating is to charge the Commission with making a completely useless and ridiculous order. If the 1945 order was intended to modify the 1942 order on the issue of the statute of limitations, then the claim would be barred. But the Commission made an award. Did the Commission intend to hold that the claim was barred by the statute of limitations, but nevertheless decided to make an award? Of course not. Yet that is exactly the result of the reasoning set forth in the dissenting opinion. The point is clearly without merit.

Petitioner's next main contention is that since the Commission by its order of November 30, 1943, denied the employee's petition for permanent disability indemnity, and since the employee did not petition for a rehearing, and, so it is contended, submitted no new evidence on the issue in support of her last petition, no good cause existed for reopening the case on this issue. This contention was probably waived by the failure of the petitioner to raise the point on its petition for rehearing before the Commission. Section 5904 of the Labor Code, St.1937, p. 303, provides: ‘The petitioner for rehearing shall be deemed to have finally waived all objections, irregularities, and illegalities concerning the manner upon which the rehearing is sought other than those set forth in the petition for rehearing.’ Under this section contentions not raised in the petition for rehearing cannot thereafter be raised on a petition for writ of review. Cowell v. Industrial Acc.Comm., 11 Cal.2d 172, 78 P.2d 1016; Los Angeles etc. R. R. Co. v. Industrial Acc.Comm., 2 Cal.2d 685, 43 P.2d 282; Hanna, Industrial Accident Commission Practice and Procedure, p. 229. It is true that certain ‘jurisdictional’ questions may be raised on the petition for writ of review although not raised in the petition for rehearing, but this would not appear to be such a ‘jurisdictional’ question.

However, conceding that the point can now be raised, it is without merit. Petitioner states that Dr. Roberts' letter upon which the Commission relies as establishing good cause for reopening was before the Commission when it made its November, 1943, award, and therefore is not new evidence. However, Dr. Roberts' letter of January 19, 1944, stated that the claimant was still disabled. That was new evidence bearing on the question of the permanence of the injury. The Commission had already found that the injury was industrial in origin and, while in November, 1943, it found that the disability was not permanent ‘at the present time,’ evidence that the injury still continued in January, 1944, about two years from the first disabling injury, was new evidence of permanence. The evidence required for reopening is not evidence supporting the application on its merits, but evidence of good cause for changing the award. The conclusion of the Commission as to what constitutes good cause is entitled to great weight. Bartlett Hayward Co. v. Industrial Acc. Comm., 203 Cal. 522, 265 P. 195. The case is unlike Merritt-Chapman & Scott Corporation v. Industrial Acc. Comm., 6 Cal.2d 314, 57 P.2d 501, where there was no doubt that the applicant suffered from a disability and where the only question was industrial causation. Obviously, in such a case evidence that the disability continued was of no significance at all on the issue of industrial causation. In such a case such evidence would not constitute good cause for a reversal of a prior award on that issue. In the present case industrial causation was established at the time of the first award in 1942. Disability had been established. The issue was whether the disability had become permanent. It is too clear to require further comment that evidence of continued disability after the November, 1943, award was evidence on the main issue of permanence, and that such evidence supports the action of the Commission in reopening the case.

Petitioner's next contention is that there is no substantial evidence to support the award, and in this connection points out that petitioner is still working. That work, however, is much lighter work and at a smaller compensation than was performed and received at the outset of the disability. It needs no citation of authority to support the proposition that the mere receipt of wages is not inconsistent with a claim of permanent disability. The evidence has already been reviewed at length. It appears that there is a sharp conflict as to the existence, duration and extent of the disability. There is also evidence, however, that an injury exists, that it is industrial in origin, and that after over three years it has not responded to treatment and is therefore permanent.

The next contention of petitioner is that the Commission had no jurisdiction to reopen and to make an award for permanent disability after it had already denied such relief. Whatever may have been the law prior to 1927 it has been settled since that year by the leading case of Bartlett Hayward Co. v. Industrial Acc. Comm., 203 Cal. 522, 265 P. 195, that a change in claimant's condition need not be shown to warrant a reopening—only good cause need be shown. That such cause existed has already been discussed. It is true that the January, 1944, petition did not allege the existence of a permanent disability, but it is well settled that when a case is reopened on any ground the Commission may properly consider all points presented and may grant relief upon points not primarily urged. 2 Campbell, Workmen's Compensation, p. 1264, § 1528. Moreover, the record shows that the hearings held on the January, 1944, petition were aimed at discovering, if possible, the extent and permanence of the injury. All the evidence was aimed at those issue. This conclusion disposes of petitioner's present contention, as well as the contention that the prior denial was res judicata, that the relief granted was in excess of that asked for, and that the Commission on the reopening had no power to consider evidence produced on prior hearings.

The final contention of petitioner is that the original award was barred by the statute of limitations. On what theory petitioner expects to relitigate that issue is not clear. As already pointed out, that issue has been finally settled by the 1942 award and even if it could now be reconsidered, on the merits, the claim is not barred.

The award is affirmed.

I dissent.

On the facts, the evidence is meager. The latest award seems to be based primarily upon the report of Frederick A. Fender, M. D. In part his report reads as follows: ‘There is little doubt that the patient simulates findings that scarcely can be credited. In spite of this, I feel that she has real disability proceeding from her work. The alleged injury of April 20, 1940, is felt to be only a culminating event. I should be more inclined to blame the intermittent employment in one type of work from 1929 to 1940. The patient appears to be suffering from a seamstress' version of ‘writer's cramp.’ The various designations—‘occupational neurosis,’ ‘bursitis,’ ‘myositis,’ ‘neuritis,’ ‘arthirtis,’ serve only to demonstrate our unfamiliarity with the essential pathology. The latter has not yet beem made clear, though the syndrome is recognized. In answer to the specific questions of Mr. A. H. Nelson, Referee, I believe the applicant suffers from partial temporary disability.' The referee's report stresses the statements of Dr. Fender though the doctor was not positive but only ‘inclined’ to hold the employment between 1929 and 1940 responsible for a ‘partial temporary disability.’ A number of medical experts reported in substance as the medical director of the commission, whose conclusion is as follows: ‘Beyond some slight muscular attrophy of the small muscles of the right hand and the applicant's complaints result of my examination is negative.’ Under the statute courts are not permitted to interfere with findings of fact. Labor Code, sec. 5953, St.1937, p. 305.

All questions herein relate directly or indirectly to the ‘date of injury.’ The original application was filed in February, 1942. As the majority opinion asserts: ‘If the original compensable injury occurred on April 20, 1940, then, obviously, the action was barred by the statute of limitations contained in § 5405 of the Labor Code, St.1937, p. 295.’ Subdivision (a) of that section fixes six months as the period within which proceedings under that section may be commenced.

I dissent from the views expressed on the following issues: That the date of injury was January, 1942, and that it has been so determined through the denial of a petition to review the Industrial Accident Commission's proceedings in the first award. I am satisfied that the question of the date of the injury is properly before us on the present review, and I deny, on the present proceedings, that we should hold ‘that the ‘date of injury’ within the meaning of the statute of limitations was January, 1942, and that for that reason the original claim filed on February 13, 1942, was not barred by the statute of limitations.'

After the commission by order had vacated and set aside its first award and subsequently permitted the applicant to ask for new and permanent compensation, it necessarily put in issue the date of injury as a jurisdictional fact which it must find in order to give itself jurisdiction under sections 5804 and 5410 of the Labor Code. This conclusion is recognized by the referee in his report as follows: ‘More than 245 weeks has now elapsed since applicant's injury, so that the order the Commission is now about to issue will exhaust its jurisdiction.’ Accordingly that question has been put in issue and is proper to consider on this review. However, it must be noted that the petition upon which the order now being considered was based was filed within 245 weeks of the date of injury as stated in the award.

The majority opinion refers to an application for a writ of review presented to the Second Division of the First Appellate District of the District Court of Appeal. The application was denied without written opinion or minute order giving the reason for the denial. In the majority opinion herein reference is made to McDonough v. Garrison, 68 Cal.App.2d 318, 156 P.2d 983. Whatever may have been my views on the subject of ‘res judicata’ as expressed in the dissenting opinion in that case, the denial of the petition for hearing by the Supreme Court indicates that the rules and statements set forth in the majority opinion on the subject of res judicata were not disapproved. To that extent they are worthy of consideration and respect. Mr. Justice Shaw, as an associate justice of the Supreme Court, in writing a dissent in a denial of a petition for hearing after decision in the District Court of Appeal, referred to the denial as ‘the silent sanction of acquiescence’ in the pronouncements of the views of the District Court of Appeal. Estate of Campbell, 12 Cal.App. 707, 724, 108 P. 669, 676. In Bridges v. Fisk, 53 Cal.App. 117, 122, 200 P. 71, 74, the court said: ‘A petition to the Supreme Court to hear and determine that cause after judgment of the District Court of Appeal was denied. The decision, therefore, possesses all the authority of a pronouncement by the Supreme Court itself.’ The denial of hearing by the Supreme Court, without comment, after decision in the District Court of Appeal must be viewed as a silent sanction of the statements of law as applied to the particular facts of the case and as a precedent to be followed in other cases wherein the facts may not be basically differentiated.

In the McDonough case the appellate court was called upon to determine the effect of the denial by the same appellate court and a denial of a petition for hearing in the Supreme Court without opinion, of a writ of prohibition to test whether the proceedings were in excess of the jurisdiction of the tribunal wherein a case was pending. Code Civ.Proc. sec. 1102. In the present proceeding this court is called upon to determine the effect of the denial without opinion of a writ of review to test the jurisdiction of the tribunal that made an award. Code Civ.Proc. sec. 1068. The main purpose of Labor Code section 5950 providing for the issuance of the writ to the Industrial Accident Commission is to determine if ‘the commission acted without or in excess of its powers.’ Labor Code, sec. 5952. Practically the only difference between the writ of prohibition and one for review is that the purpose of the first is to prevent error and of the second to correct error in the exercise of jurisdiction. Section 5803 of the Labor Code permits the Industrial Accident Commission voluntarily to correct error with or without a petition for rehearing. The Industrial Accident Commission has ‘continuing jurisdiction,’ at least during 245 weeks from the date of injury. Labor Code, secs. 5803, 5805, 5903, 5908. If it may be held that a reviewing court may deny a petition for a writ of prohibition which shows on its face jurisdictional or factual error ‘before the entry of a final order’ (McDonough v. Garrison, supra [68 Cal.App.2d 327, 156 P.2d 988]), the same conclusion may be reached when applied to proceedings involving review of an order, decision or award of the Industrial Accident Commission which may appear to be ‘unjust or unwarranted.’ Labor Code, sec. 5908 provides: ‘If after rehearing and a consideration of all the facts, including those arising since the making of the order, decision, or award involved, the commission is of the opinion that the original order, decision, or award, or any part thereof, is in any respect unjust or unwarranted, or should be changed, the commission may rescind, alter or amend it.’ (Italics added) In brief, if the ‘commission is of the opinion’ that the award or order is unjust or unwarranted it may change the award or order after giving to the interested parties an opportunity to be heard. Larsen v. Industrial Acc. Comm., 125 Cal.App. 13, 13 P.2d 850; Gobel v. Industrial Acc. Comm., 1 Cal.2d 100, 33 P.2d 413.

Appellate reviewers are often forced to follow rules which do not receive personal approval. Referring to previously decided cases, it was said in McDonough v. Garrison, supra, 68 Cal.App.2d at page 327, 156 P.2d 988:

‘It seems clear that these cases establish the following two rules, the second of which is but a corollary of the first:

‘1. If there is any other possible ground other than the merits upon which the denial of the petition for a writ could have been based, such denial is not res judicata of the merits in a subsequent proceeding.

‘2. Even though a trial court may have entered interlocutory orders in excess of its jurisdiction, an appellate court may assume the error will be corrected before the entry of a final order, and may refuse to interfere by prohibition. This possibility prevents such a denial of the writ without opinion from operating as res judicata in future proceedings.

‘* * * The existence of these two possibilities prevents the doctrine of res judicata from arising.

‘* * * It is common practice for an appellate court to decide such applications on grounds not urged by counsel.’ (Emphasis added.)

In brief, the rule appears to be that if there is a ‘possible ground other than the merits,’ a denial of a petition for a hearing after decision by another tribunal is not res judicata. The denial of the writ without opinion may possibly be based upon the insufficiency of the allegations of the petition or upon some error in form not ‘urged by counsel.’ In view of the commission's right to correct the error, it may be assumed that the District Court of Appeal may have thought that ‘the error will be corrected’ before a final order is made. McDonough v. Garrison, supra, 68 Cal.App.2d at page 327, 156 P.2d 983. In brief, any disposition that the commission may make of an application for compensation, or any order that a reviewing court may make on petition to review, is not res judicata in view of the commission's right under the Labor Code to vacate and set aside any previous order of the commission. After review the holding of the court should be followed as far as applicable but the commission is not foreclosed from the reception of further evidence and changing an award if that is the just course to follow. In the present proceeding evidence was introduced that would play a definite part in determining that there was no injury at all, which would necessitate the elimination of consideration of either date, April 20, 1940 or January 1942. Dr. Fender was uncertain in his diagnosis and requested assistance. He asked that a certain expert should examine the applicant. The expert suggested, according to the report of the referee, ‘a diagnosis of scalenus anticus syndrome, non-industrial in etiology.’ Nielsen v. Industrial Acc. Comm., 220 Cal. 118, 29 P.2d 852. The most that may be said is that the orders on review may be the law of the case but only until the commission changes the record based upon substantial facts.

Irrespective of the views expressed in the majority opinion, there is sound and substantial reason why the District Court of Appeal in the prior petition for a writ did not adjudicate that the date of injury was in the month of January, 1942. The date of injury is a question of fact. No review was granted in this matter and hence there could be no determination even if legally permissible that the date of injury was incorrect. If the reviewing court concluded that the date of injury, April 20, 1940, as pleaded and as found, was incorrect, it would be powerless to act. The findings and conclusions of the commission on factual matters are not subject to court review. Labor Code, sec. 5953. The most that the appellate court can decide is that the evidence in the record before the commission does or does not support the finding made by the commission.

The determination of the date of injury is an essential element of fact in the present proceeding in that it relates to the period when indemnity may begin, the statute of limitations may commence, etc. The majority opinion evidently adopts the theory that if the conclusion that January, 1942, as the date of injury is not res judicata a consideration of that issue can be determined in the present proceeding. The date of discovery of disability, or the date when a reasonable person would have discovered the disability, has in some cases been declared the date of injury in industrial diseases growing out of, or caused by, a particular occupational class of work, which diseases are progressive and the seriousness of which is not immediately discernible. The date of disability is merely a circumstance that may be considered in determining the date of injury. This rule is based upon the theory that the specific date of the injury in some occupational diseases may be impossible of accurate determination. Marsh v. Industrial Acc. Comm., 217 Cal. 338, 18 P.2d 933, 86 A.L.R. 563. It was not until the oral argument in the present proceeding that it was claimed the date determined to be the ‘date of disability’ would be substituted for the ‘date of injury’ as found by the commission. Prior to that time in all the petitions or applications presented to, and all orders and awards made by, the commission, the date of injury was set forth as April 20, 1940, and is so set forth in the present findings.

The ‘injury’ referred to in the Labor Code relative to workmen's compensation and insurance includes any detriment, harm or damage arising out of an accident or disease which is proximately caused by the employment. If the injury arises from an accident, such as twisting a finger, the date of the injury is easily ascertainable. If the injury is the result of a disease which is the proximate and natural result of the employment the date of injury may be hard to ascertain if the symptoms are latent and the effects dormant. Such an injury has been recognized for many years as an occupational disease.

An occupational injury is one that is the usual result of continuous employment in certain hazardous work. Such injury does not appear suddenly, but is a gradual breaking down of some part of the physical system resulting finally in complete incapacity to continue the particular work. Pulmonary silicosis is generally recognized as an occupational disease. Marsh v. Industrial Acc. Comm., supra. The date of injury in such an occupational disease is not the date of disability but it is the date either before or subsequent to the date of incapacity to work that the presence of the occupational disease ‘should have been diagnosed as the primary and efficient cause of the injury.’ Price v. Industrial Acc. Comm., 9 Cal.App.2d 213, 49 P.2d 294, 295; see, also, Travelers Ins. Co. v. Industrial Acc. Comm., 32 Cal.App.2d 643, 90 P.2d 327. In the very recent case of Williams v. Industrial Acc. Com., Cal.App., 161 P.2d 979, 982, the court said: ‘Even if there were evidence that the claimant was so disabled by silicosis in 1940 as to impair his ability to work as a molder there is no evidence to support a finding that he knew or in the exercise of ordinary care should have known that fact.’

The disease need not be peculiarly an incident to the work performed or that naturally results from the pursuit of the particular occupation but it may be generally attributable to many occupations or to no particular occupation if it is of long standing and culminates in an injury which is attributable to the work performed. It is not claimed that arthritis is a necessary incident to, and an ailment that will occur from, the intermittent work of sewing carpets and curtains or drapes. However, it is possible that it could arise from such work and to that extent may be classified as occupational.

Marsh v. Industrial Acc. Comm., supra, does not control the facts in this case. In the Marsh case the commission was dealing with a ‘latent’ disease which was not apparent until it culminated in disability, the date of which disability was selected and designated as the date of injury or the date upon which the employee should have known that he was suffering from the disease. In the present case, assuming, as the commission in substance held, that there is some evidence that the neuritic, arthritic, or rheumatic condition arose in part as a result of intermittent employment in the type of work she was engaged in from 1929 to 1940, the disease was no longer a latent one subsequent to April 20, 1940, at which time a definite injury occurred.

The rule to start the statute of limitations adopted in the majority opinion from Williams v. Industrial Acc. Comm., supra, is fulfilled when the date of injury in this case—April 20, 1940—is considered. (1) the disease had progressed to disable the claimant from the usual performance of duties to the extent that she was entitled to compensation. (2) The claimant knew ‘or in the exercise of ordinary care should have discovered’ that she was suffering from an occupational injury or ailment. (3) She knew that she was suffering from a compensable disability caused by her occupation. The commission has always recognized that the date of the injury was April 20, 1940. The physician who stated in 1944 that this ailment might have been caused by the type of work performed fixed the date as between 1929 and 1940.

Against the theory that January, 1942, the date selected in the majority opinion, was the date of injury, and in favor of April 20, 1940 as the date of injury, are the following circumstances: The applicant testified and claimed compensation for a definite injury, namely, twisting of a finger resulting in injury to her arm and shoulder which occurred on a definite date—April 20, 1940. The injury of April 20, 1940, was not a latent injury. On the contrary applicant visited several doctors as a direct result of the injury. The following question and answer appear in the record: ‘Q. So that at that time when you made application for compensation from the Group Insurance Bureau, you were under the impression, were you not, that your disability was not compensable? A. No.’ The applicant during a lay-off period visited several persons engaged in healing treatments. When she returned to work the arm ‘started aching again * * *.’ Subsequently she was told by one who undertook to treat her: ‘Don't come here anymore, lady, you are just wasting your time. Your arm will never get any better, as long as you continue with that work.’ The first doctor she visited three days after the accident to the middle finger of her right hand advised that there should be a ‘change of occupation.’ The applicant was given lighter work, although her recollection, which was adopted by the commission and which is binding on the court, is that ‘lighter work’ was not given until some later period than that immediately following the accident. The twisting of the finger appreciably impaired the efficiency of her work and she was entitled to industrial compensation. There is no dispute that she visited a physician as the result of twisting the finger. Subsequent thereto the swelling appeared, pain continued and the hand and forearm were weak. It may be assumed that such condition would tend to lessen efficiency. I agree with the statement in the majority opinion that ‘It needs no citation of authority to support the proposition that the mere receipt of wages is not inconsistent with a claim of permanent disability.’

In addition to the above, the following circumstances appear to be inconsistent with the theory adopted in the majority opinion that the injury occurred in January, 1942. In the first award—May 11, 1942—it was determined that the injury actually occurred on April 20, 1940 and was a temporary disability. On February 5, 1943, the commission determined that a temporary partial disability continued and specifically found that it was not permanent and stationary at that time. On November 30, 1943, the commission found that ‘The evidence is insufficient to show that the injury has resulted in permanent disability or that the condition, at the present time, is permanent and stationary.’ By the same order the commission found that the temporary disability had terminated. On the present application all of the evidence, documentary and otherwise, showed the date of injury to be April 20, 1940. The commission found that the arthritic condition resulted from repeated motions of hand and arm while sewing carpets and curtains over a period of years beginning in 1929, and that the applicant ‘while employed as a seamstress on or about April 20, 1940, at Richmond, California, by The Pullman Company, sustained injury arising out of and occurring in the course of said employment.’ There is not one reference in the findings filed April 10, 1945 to a permanent or otherwise disability occurring in January, 1942. Only the award stated that disability payments began January 30, 1942. It is necessary that each material allegation be determined in the findings. Simmons v. Industrial Acc. Comm., 70 Cal.App.2d 664, 161 P.2d 702. As before noted, the date of injury was necessarily an issue in this case. Notwithstanding that there is no finding of any date in January, 1942, as the date of disability or of injury, the commission awarded the sum of $3,241.05, including attorney fees, ‘in addition to all fees heretofore awarded, and less all sums heretofore paid as temporary disability indemnity.’

Ordinarily when the commission grants an award applicable to a certain disease, courts do not interfere unless it appears that the particular award was made without jurisdiction. Under such circumstances it is the duty of the court to annul the award at any time that matter is brought to its attention. Labor Code, sec. 5952, subd. (c). Statutes of limitation are enacted to give parties a speedy but reasonable opportunity to determine the issues involved. Lilly-Brackett Co. v. Sonnemann, 157 Cal. 192, 197, 106 P. 715, 21 Ann.Cas. 1279.

Since writing the above the majority opinion has been amended. It may be necessary therefore to repeat some of the reasons for this dissent.

The majority opinion attacks the reasoning in the dissenting opinion in that ‘the Commission has never reopened, for good cause, or otherwise, its 1942 determination that the original claim was not barred by the statute of limitations.’ When the matter was reopened for a or any cause, good or otherwise, in the discretion of the commission it was then subject to redetermination of any previous just and warranted order or award. Jurisdiction was an issue without the use of discretion by the commission. It was mandatory to determine the question of jurisdiction. If an error in jurisdiction had occurred it was the duty of the commission to correct such error. The majority opinion states that the commission in 1945 ‘passed on the only issue presented to the commission, namely, whether the disability had become permanent.’ Permanence of disability was not the only issue presented and passed upon in the 1945 proceedings.

The return to the present writ of review contains a true and correct copy of the record of proceedings considered by the commission on the 1945 award. The return includes the testimony of Adelina Mira, the applicant, who testified relative to the accident on April 20, 1940; the testimony of numerous medical experts, all referring to April 20, 1940 as the date when the applicant twisted her finger; the findings following four separate hearings in which the date of injury was fixed as of April 20, 1940 and not January, 1942; and the awards of 1945 in which no reference is made to a date of injury, but just merely orders payments made commencing as of January 30, 1942. No particular reason appears why January 30th was selected and no reason appears why other dates in January, 1942 were designated in previous awards as the date to commence payment.

The return also contains the report of the referee who recognized that at the time the report was made 245 weeks had expired from the date of injury—‘More than 245 weeks has now elapsed since applicant's injury, so that the order the Commission is now about to issue will exhaust its jurisdiction.’ If the date of injury was in January, 1942, there was no purpose in making the statement in reference to the statute of limitations. If that was the date, 245 weeks have not as yet elapsed. There was not only evidence before the commission relative to the statute of limitations, but the referee in his report refers to his consideration of the statute of limitations. The record in this case on its face shows that the original application was not filed within the statutory period of six months. Any attempt to fix the date of disability as the date of injury is contrary to the acknowledged rule in such case, namely, that it is not the date of disability but the date when the applicant knew or should have known of the existing occupational disease, that may be accepted as the date of injury. The petitioner at no time waived its right to rely on the statute of limitations—that the claim is barred because it was not filed within six months after the injury. The petition for rehearing of the present award urges as one of the grounds ‘That the findings of fact do not support the order in that, upon the face of the findings of fact, the claim is barred by the statute of limitations because it was not filed in time after receipt of the injury.’ In any case wherein this court has jurisdiction over a pending case which is to be heard on the merits, and it is called to our attention that the commission has acted in excess of its jurisdiction, any award based thereon should be annulled.

PETERS, Presiding Justice.

SCHOTTKY, Justice pro tem., concurs.