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District Court of Appeal, Second District, Division 3, California.


Civ. 16907.

Decided: May 04, 1949

Herlihy & Herlihy, of Los Angeles, for petitioner. T. Groezinger and Robert Ball, both of San Francisco, for respondents.

The Industrial Accident Commission awarded respondent, C.J. Rotondo, compensation for injury which he claims arose out of and in the course of his employment, consisting of aggravation of pre-existing tuberculosis. The commission found that Rotondo first learned that the tuberculosis was an active disabling condition connected with his employment on November 16, 1944. In this proceeding to review the award, petitioner contends that Rotondo first learned that fact a long time prior to November 16, 1944, and that the claim is barred by the statute of limitations. Respondents' assertion that this point was not raised by petitioner in its petition for a rehearing is in error. The application for adjustment of claim was filed with the commission February 9, 1945.

In May of 1941 Rotondo was employed by Cal–Aero Academy as a flight instructor. He became ill at work in May of 1942. At that time he “had been coughing quite a bit,” developed a fever of 103, had a peculiar rattling in the chest, chills and sweats. He was off work and confined in a hospital for about two weeks under the care of Dr. Coughlin who thought he was suffering from bronchial pneumonia. On June 27, 1942, while flying at an altitude of 9,000 feet, he again became ill, coughing and hemorrhaging blood from his nose and mouth. Immediately after landing he left for home. In the evening he saw Dr. Titus who told him he had tuberculosis, cautioned him not to do any flying, and suggested that he go to a hospital. Later that evening he had another hemorrhage. He went to a hospital where he received medication and bed rest for two weeks. While there he coughed up sputum which contained blood and mucus. On July 7, 1942, he went to Pottenger Sanitarium, an institution for the treatment of tuberculosis. There, on July 8, 1942, he was examined by Dr. Pottenger, who told him he had active tuberculosis, a cavity in his upper right lung, an old lesion of his upper left lung, and that he should stop work. He prescribed bed rest and nourishment. Dr. Pottenger testified that the condition originated from the old lesion in the left lung.

Rotondo testified that while in the sanitarium he “studied a little about tuberculosis and, naturally, I know that that is the foremost cure, if there is going to be a cure, is just simple bed rest and good nourishing food.” He remained at Pottenger Sanitarium until October 25, 1942. At the time he left, Dr. Pottenger told him, “That it takes a much longer time to get well of tuberculosis than the time you are in the sanitarium and it would take them at least a year to finish up and get well and what he should do during that period is rest a great deal and go to bed early and not overwork. In fact, no work at all, if possible.” At that time he had practically no bacilli in his sputum. In 1924 his sister had died from tuberculosis at the age of 19, while he and she were living in the same household. For several years Rotondo had had pleurisy pains over the right chest.

Rotondo stayed at home resting until January 3, 1943, at which time he returned to work. He was told by his superior that he would not have to fly right away and was assigned radio communication duty at the control tower. Dr. Pottenger did not recommend that Rotondo go to work but told him that just sitting in the control tower would be all right. Dr. Pottenger testified: “If all he had to do is sit in the tower and direct, I felt sure he could do it,” and that “Flying would be something that you would not recommend to any person with tuberculosis because there is danger.” Two weeks later Rotondo was assigned by his superior to his former position as flight instructor, flying about the same number of hours, six days a week, as he did prior to his illness on June 27, 1942.

In July of 1942 and many times in 1943, Dr. Pottenger told Rotondo what the effect of exertion and working would be on him. Rotondo understood his “warnings against work.” In September of 1942, Rotondo felt that he was entitled to compensation for his condition but did not file a claim at that time. Beginning in May or June of 1943, he flew day and night, 9 to 12 hours, flying to altitudes of about 16,000 feet with a cruising speed around 120–135 an hour. In June of 1943, he felt fatigued and had colds after flights. An X-ray taken August 7, 1943, showed a “[n]ew infiltration in lower lobe of right lung.” He had bacilli in his sputum again in August of 1943.

In January or February of 1944, shortly after rocking the wing of a plane up and down, Rotondo felt catches in his chest, coughed and spit up blood. In February of 1944, he noticed the cough had definitely increased, which he attributed to the fact that he was working long hours. An X-ray taken March 13, 1944, showed “[i]nfiltration continues about the same in lower right lung, but in the left lung, without the hilus [roots], is a recent infiltration.” On March 21, 1944, Dr. Pottenger told him that a “[s]light density which showed near the base of your right lung has not yet healed so you must take good care of yourself.” During this period Dr. Pottenger told him “that he had an additional extension at the right base and for him to continue work would necessitate that he take it very easy.” In May of 1944, shortly after a flight, while hand-cranking a plane on the job, he felt a peculiar catch in his chest and half an hour later coughed and spit up blood. Rotondo testified that at that time he “was tired, coughing a little, and just generally run down.” On June 19, 1944, Dr. Pottenger told Rotondo, “You still have 12cc of sputum in three days with 20 baccili per field. Last time you had 300 baccili per field. That little cavity in the lower portion of the lung is giving you this secretion. We must watch it carefully to be sure that nothing happens to allow the disease to extend,” and that “It would be better if you could come back to the sanitarium for a little while.” Rotondo knew then that he had a cavity and that he needed to rest to prevent its further growth. He decided to take a rest.

On July 27, 1944, he informed his superior that he was not feeling well, would take time off to rest, and he quit his employment. At that time his superior asked him to take another class, Rotondo told him that he “wasn't feeling well,” that he did not feel up to it, and that he “was taking off.” He said to his superior, “If I feel better and you need instructors, I will come back and take a class through or take several classes through.”

On August 6, 1944, his last salary was paid and he accepted it “as termination salary.” On November 16, 1944, Rotondo was again examined by Dr. Pottenger who told him his tubercular condition was again active. Rotondo testified that he first knew he “had an active T.B. infection” when he “had the hemorrhage June 27, 1942,” and that he thought it was inactive when he returned to work in January of 1943. He also testified that November 16, 1944, was the first time after January of 1943 he knew and became aware that “he had a cavity caused by a T.B. infection” and that his condition was active.

Dr. Pottenger testified that “Mr. Rotondo was probably never free from active tuberculosis from the time he had his first hemorrhage in 1942,” that “if he had stayed in that tower and worked along there in that way, he might never have broken down,” that his condition was quiescent only in October, November and December of 1942, and that it never completely healed from its inception.

About September 30, 1946, Rotondo gave a history to Dr. Hayes of spitting blood after he exerted himself on several occasions while an instructor in aeronautics at Cal–Aero Academy.

Labor Code, section 5405, at all times involved, read: “The periods within which may be commenced proceedings for the collection of medical, disability or other benefits provided by either Article 2 or 3, or both, of Chapter 2, of Part 2 of this division are, except as otherwise provided in this division, as follows: (a) Six months from the date of injury, or from the date of the last payment of any compensation, or agreement therefor, or the expiration of any period covered by such payment. *” No compensation was ever paid Rotondo and no agreement for payment of compensation was ever made.

The parties agree that “the date of the injury” must be deemed to be the time when “by the exercise of reasonable care and diligence it is discoverable and apparent [to the employee] 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; Alford v. Industrial Accident Comm., 28 Cal.2d 198, 203, 169 P.2d 641. Whether the claimant at a given time, by the exercise of reasonable care and diligence, could have had discoverable knowledge of his ailment and that it was attributable to his employment is primarily one of fact for the commission, Alford v. Industrial Accident Comm., supra, whose finding will not be disturbed where it is supported by substantial evidence. S.A. Gerrard Co. v. Industrial Acc. Comm., 17 Cal.2d 411, 414, 110 P.2d 377. However, it becomes one of law when, from the facts, only a single inference and one conclusion may be drawn. San Diego Trust & Savings Bank v. San Diego, 16 Cal.2d 142, 153, 105 P.2d 94, 133 A.L.R. 416; Perguica v. Ind. Acc. Comm., 29 Cal.2d 857, 859, 179 P.2d 812. We are “charged with the duty of determining whether or not the commission has exceeded its jurisdiction by making any of its findings contrary to the evidence or without supporting substantial evidence.” National Auto, etc., Co. v. Ind. Acc. Comm., 80 Cal.App.2d 769, 772, 182 P.2d 634, 636, and authorities there cited. In West v. Industrial Acc. Comm., 79 Cal.App.2d 711, at page 718, 180 P.2d 972, 977, it was said: “While it is the province of the commission to determine the credit and the weight to be given the evidence, the commission may not disregard facts established by the evidence. Bussey v. Industrial Acc. Comm., 1938, 26 Cal.App.2d 211, 212, 79 P.2d 169; Moquin v. Industrial Acc. Comm., 1939, 33 Cal.App.2d 511, 516, 92 P.2d 413. Findings of fact of the commission like those of a trial court may be set aside and an award based thereon annulled if the findings are contrary to the evidence, read as a whole, or without meritorious support in the evidence. Nielsen v. Industrial Acc. Comm., 1934, 220 Cal. 118, 122, 29 P.2d 852; [Id., Cal.Sup., 30 P.2d 995]; Pacific Palisades Ass'n v. Menninger, 1933, 219 Cal. 257, 267, 26 P.2d 303; Williams v. Kidd, 1915, 170 Cal. 631, 642, 151 P. 1 [Ann.Cas.1916E, 703]; Smith v. Belshaw, 1891, 89 Cal. 427, 430, 26 P. 834. Stated otherwise the rule of review is that an award of the commission will be set aside if no reasonable man can reach the conclusion the commission reached. Engels Copper Min. Co. v. Industrial Acc. Comm., 1920, 183 Cal. 714, 717, 192 P. 845, 11 A.L.R. 785.”

The evidence, without conflict, shows the following: For several years prior to May of 1942, Rotondo knew that he had pains in the right chest. In June of 1942 he knew that flying brought on coughing and spitting of blood. He knew that his sputum contained blood and mucus. He was told not to do any flying. He knew on July 8, 1942, that he had active tuberculosis, an old lesion in his left lung, a cavity in his right lung, and that he had to stop work. He was confined in a sanitarium for tuberculars for nearly four months. While there he made some study of tuberculosis and learned that if there was going to be a cure, he had to have bed rest. When he left the sanitarium on October 25, 1942, he knew that it would take at least a year for him to get well, that he should rest a great deal and not work at all if possible.

Rotondo returned to work on January 3, 1943. He knew then that he was not well. He knew then that Dr. Pottenger let him return to work solely because he would sit in a control tower and not exert himself. Notwithstanding his knowledge of his condition and the effect of exertion and flying upon him, he returned to his old job as flight instructor within three months after he left the sanitarium, working more strenuously and exerting himself more arduously than before he first was taken ill. He knew what the effect would be upon his condition. From May or June, 1943, on, he flew 9 to 12 hours a day at high altitudes. After these flights he was fatigued and had colds. He knew on August 7, 1943, that he had a new infiltration in his right lung. He knew when he left Pottenger Sanitarium in October of 1942 that he had practically no bacilli in his sputum and he knew in August of 1943 that he had a return of the bacilli. In January or February of 1944, and again in May of 1944, he had exactly the same symptoms as he had previously—fatigue, catches in his chest, coughing, and spitting of blood. He knew on March 13, 1944, that the infiltration in his lower right lung continued about the same and that there was a recent infiltration in his left lung. On May 21, 1944, he knew that his right lung had not yet healed and that he must take good care of himself. In May of 1944 he was tired, coughing and generally run down. On June 19, 1944, Dr. Pottenger told him that there was a cavity in one of his lungs and wanted him to go back to the sanitarium. On July 27, 1944, more than six months before he filed his claim, he terminated his employment because of his condition. During all of the time he knew that his sister had died of tuberculosis.

One conclusion only can be drawn from the foregoing facts and from the inferences which reasonably may be drawn therefrom: That Rotondo, more than six months prior to filing his claim with the commission, knew that his condition had become aggravated and that such aggravation was attributable to his employment. To say that the finding that the claim is not barred by the statute of limitations is supported by substantial evidence, is to substitute sympathy for reason. The commission has no such powers; neither has this court. The fact that Rotondo testified that the first time after January of 1943 he knew he had a cavity caused by a T.B. infection was on November 16, 1944, does not create a conflict in the evidence. The test is not when he knew, but when he should have known by the exercise of reasonable care and diligence.

Where injury is latent and of a progressive nature it is deemed to occur when ascertainable disability results. If a disability result is delayed, the injury is correspondingly delayed. The right to compensation in that case accrues when incapacity occurs. Marsh v. Industrial Acc. Comm., 217 Cal. 338, 345, 346, 18 P.2d 933, 86 A.L.R. 563. Incapacity occurred and ascertainable disability resulted at least as early as July 27, 1944, the date when Rotondo terminated his employment because of his condition, which he knew was caused by his occupation. The prescriptive date runs from the period of the culmination of the injury. National Automobile Ins. Co. v. Indus. Acc. Comm., 4 Cal.2d 632, 51 P.2d 1097; Alford v. Industrial Accident Comm., 28 Cal.2d 198, 204, 169 P.2d 641; Travelers Ins. Co. v. Indus. Acc. Comm., 32 Cal.App.2d 643, 645, 646, 90 P.2d 327; American Solvents & Chemical Corp. v. Indus. Acc. Comm., 14 Cal.App.2d 169, 57 P.2d 954; see, also, Madison v. Wedron Silica Co., 352 Ill. 60, 184 N.E. 901, 902; Marler v. Grainger Bros., 123 Neb. 517, 243 N.W. 622, 624; Bergeron's Case, 243 Mass. 366, 137 N.E. 739; Johnson v. London Guarantee & Accident Co., 217 Mass. 388, 104 N.E. 735.

The finding that the claim is not barred by the statute of limitations is contrary to the evidence. It is arbitrary, capricious and in excess of the powers of the commission. It cannot be sustained.

Award annulled.

VALLEE, Justice.

SHINN, P.J., and WOOD, J., concur.