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

Sadie I. SUTTON, Petitioner, v. INDUSTRIAL ACCIDENT COMMISSION OF The State of CALIFORNIA and Creighton Stationery Company, and Guarantee Insurance Company, Respondents.*

No. 16871.

Decided: January 18, 1956

Delger Trowbridge, San Rafael, for petitioner. Everett A. Corten, Daniel C. Murphy, San Francisco, for respondent Indus. Acc. Comm. Mullen & Filippi, San Francisco, for respondents Creighton Stationery Co., and Guarantee Ins. Co.

Petitioner seeks review of the record and award of the commission terminating an ‘Order Denying Applicant's Petition for Reconsideration and Order Amending Decision after Reconsideration.’

Questions Presented.

1. Where a proceeding to rescind and amend an award is brought within five years from the date of the injury, does section 5804, Labor Code, prohibit the commission from acting on such petition after the five year period has elapsed?

2. Is the 1949 amendment to section 5804 retroactive?

3. Do the findings support the award?


April 2, 1948, employee was injured.

March 14, 1952, the commission awarded her a permanent disability rating of 100 per cent.

April 1, 1953 (next to the last day of five years following the date of the injury), the carrier petitioned to reduce this rating. Various proceedings were had thereafter culminating in the order, review of which is sought. This order set aside the findings and award of March 14, 1952, which awarded the employee a permanent disability rating of 100 per cent, and granted the carrier's petition to reduce the rating by reducing it to 41 1/2 per cent.

1. Power of Commission.

Section 5803, Labor Code, provides that the commission has continuing jurisdiction over all its awards and at any time may rescind, alter, or amend them. Section 5804 provides: ‘No award of compensation shall be rescinded, altered, or amended after five years from the date of the injury.’

Although there is language favorable to the action of the commission here in one case, Larsen v. Industrial Accident Comm., 125 Cal.App. 13, 13 P.2d 850 and favorable to the contention of the petitioner in two cases, Broadway-Locust Co. v. Industrial Accident Comm., 92 Cal.App.2d 287, 206 P.2d 856; Westvaco, etc., Corp. v. Industrial Accident Comm., 136 Cal.App.2d 60, 288 P.2d 300, hearing denied by Supreme Court, the exact question before us has never been passed upon in this state. In the Larsen case, on the last day of the 245th week after the date of the injury,1 the commission, without notice to anyone, of its own motion changed the award previously made. Claiming that the last award was void, the carrier after the 245 weeks had expired, petitioned for a rehearing. This was granted and the commission upon such rehearing, affirmed the last award. The carrier then proceeded in the appellate court to review that award. The court held that the action of the commission on the last day of the statutory period was void because of lack of notice to the parties and that its action affirming that award was likewise void because it was based upon a petition filed after the statutory period. In so doing, however, it used the following language from which the commission derives comfort, 125 Cal.App. at page 17, 13 P.2d at page 852: ‘If on the last day of the week of the two hundred forty-five week period an application for an amended award had been made, on notice duly given, and had thereupon been heard and submitted, and if the Commission ruled thereon some day subsequent to the two hundred forty-five week period, the question would be altogether different. Osmont v. All Persons [etc.], 165 Cal. 587, 133 P. 480.’ The Osmont case dealt with a motion to set aside a default judgment in the superior court filed two days before the statutory period allowed by section 473, Code of Civil Procedure, for applications for relief from default, but not passed upon by the court until after that period. The motion was denied by the trial court because it believed that by the expiration of the statutory period it had lost jurisdiction to act. The appellate court held that the motion having been timely made the court retained jurisdiction to act upon it.

The Broadway-Locust case, supra, relied upon by petitioner, dealt with the action of the Industrial Accident Commission in acting upon a petition for permanent disability rating filed more than 245 weeks after the date of the injury. In denying the power of the commission to so act, the court held that the petition was not one to exercise the powers granted by section 5803, to which the limitation set forth in section 5804 applies, but was one for ‘new and further disability’, the power to pass upon which is provided in section 5410. It then held that that section required that the application for new and further disability must be filed within the 245 weeks therein mentioned. In discussing section 5804 as contrasted with section 5410 the court used language implying that by reason of section 5804 the commission's power to act upon a petition brought under section 5803 expired 245 weeks after date of the injury. Such language, however, was not necessary to the decision nor did the court have before it facts upon which to base such a decision. The same is true of the decision in Westvaco, etc., Corp. v. Industrial Accident Comm., supra, 136 Cal.App.2d 60, 288 P.2d 300.2 There, in determining that the commission had the power to decide after five years from the date of the injury (the limitation set forth in section 5410) a petition for new and further disability filed within that period, we also discussed section 5804 and basing our discussion upon the language above mentioned in the Broadway-Locust case, supra, we stated, in effect, that the commission would have no jurisdiction to act upon any proceeding brought under section 5803 after the expiration of five years. The only matter before us, however, was a petition under section 5410 and hence our discussion of section 5803 was not necessary to the decision. Therefore, we feel that neither the Broadway-Locust nor the Westvaco case is precedent on the question before us.

Douglas Aircraft Co. v. Industrial Accident Comm., 31 Cal.2d 853, 854, 193 P.2d 468, comes nearer to the facts of this case than any case we have found. There, within the statutory period, the employee who for about four years had received medical treatment from his employer without any application to the commission, petitioned for a permanent disability rating. The commission after the statutory period gave him an award for total temporary disability. Thereafter the employee petitioned for a further hearing. A hearing was granted and the commission issued a ‘Supplemental Award,’ granting him a permanent disability rating. In upholding the award, the Supreme Court said concerning the limitation in section 5804 which at that time was 245 weeks, 31 Cal.2d at page 855, 193 P.2d at page 469: ‘This provision, by its terms, creates a jurisdictional limitation upon the commission to make an award altering, amending, or rescinding its final orders with respect to a claim on which it has already acted. Hanna, Industrial Accident Commission Practice and Procedure, 1943, p. 118. However, under the rule announced in the Gobel case, the commission may make a determination after that time has expired, providing the application requesting such action is filed during the 245-week period.’ The court went on to hold that as the commission had failed to pass on the employee's petition for permanent disability that question remained open and undetermined and that its determination after the statutory period was jurisdictionally justified by the decision in the Gobel case, supra. While the Gobel case dealt with a petition for a new and further disability and the Douglas case dealt with the failure of the commission to act on an original petition for permanent disability and our case deals with a petition to change or amend a permanent disability award already given, we see no reason why the above quoted language from the Douglas case should not apply here. It should be pointed out that to hold that the commission may not act on a petition under section 5803, filed, but not acted upon, within the five year period, would actually give a petitioner less than five years in which to apply for a change of rating, as he would have to apply a sufficiently long period before the expiration of five years to give notice of the hearing and to give the commission time in which to act. This period, depending as it would on the time the commission might take to act, would be a very indefinite period, indeed. Moreover, it would put the commission in a position where, by merely postponing action on a petition it could deny a petitioner relief without considering his petition.

2. Does The 1949 Amendment Apply?

Petitioner contends that it does not and that therefore the limitation period is 245 weeks. The petition upon which the final action of the commission is based was filed more than 245 weeks after the date of the injury, which occurred prior to the amendment. Petitioner cites Aetna Casualty & Surety Co. v. Industrial Accident Comm., 30 Cal.2d 388, 182 P.2d 159. That case was not dealing with a statute of limitations. It dealt with an amendment to section 4661, Labor Code, changing the basis for disability payments which the employee would receive. That the Legislature may extend the time limitation in the Workmen's Compensation Act so as to affect proceedings then pending has already been determined. In Davis & McMillan v. Industrial Accident Comm., 198 Cal. 631, 633, at pages 636–637, 246 P. 1046, at page 1047, 46 A.L.R. 1095, in applying an amendment extending the time of an employee to claim the benefits of the act who had been injured before the amendment, the court said: ‘It is clear from the decisions of the courts of this state as well as those of other jurisdictions that a person has no vested right in the running of a statute of limitations unless it has completely run and barred the action. * * * It is equally well settled that an amendment to a statute of limitations enlarging the period of time within which an action can be brought as to pending causes of action is not retroactive legislation, and does not impair any vested right.’ See also Mudd v. McColgan, 30 Cal.2d 463, 183 P.2d 10.

3. Findings Support The Award.

Petitioner claims that the award of the commission does not contain findings of fact nor is it accompanied by any summary of evidence. The findings found ‘Applicant's injury caused permanent disability of 41 1/2% for the factors of disability set forth in the permanent disability rating served and filed February 4, 1955.’ This rating set forth in detail the physical condition of petitioner resulting from the industrial injury. The referee's written comments are also included in the record. The order of the commission meets the requirements as to findings as set forth in sections 5800 and 5953, Labor Code. ‘Finding the ultimate facts is sufficient. Findings on special probative facts are not required.’ Lumbermen's Mutual Casualty Co. v. Industrial Accident Comm., 29 Cal.2d 492, 175 P.2d 823, 827.

Petitioner contends that the commission failed to state any reasons for failing to apply the ‘odd lot’ doctrine. In the ‘Report of Panel One on Applicant's Petition for Reconsideration’ the commission expressly stated that that doctrine was not applicable, citing Meyers v. Industrial Accident Comm., 39 Cal.App.2d 665, 103 P.2d 1025, and California Compensation Ins. Co. v. Industrial Accident Comm., 128 Cal.App.2d 797, 276 P.2d 148, 277 P.2d 442. Petitioner has cited no authorities to the contrary of the commission's position in this respect. As said in Pacific States Savings & Loan Co. v. O'Neill, 7 Cal.2d 596, 598, 61 P.2d 1160, 1161, assignments of error ‘unaccompanied either by argument or citation of authority * * * under a well-established rule of appellate practice, we are not constrained to take further notice thereof.’

The order and award are affirmed.


1.  At that time the limitation in section 5804 was 245 weeks after the date of the injury. In 1949 the section was amended by substituting ‘five years' for ‘245 weeks.’ Stats.1949, ch. 677, § 2, p. 1174.

2.  There are other cases holding that section 5410 does not limit the commission to acting within the statutory period of the date of the injury where the application for new and further disability is filed within that period. See Gobel v. Industrial Accident Comm., 1 Cal.2d 100, 33 P.2d 413; Furness Pacific Ltd. v. Industrial Accident Comm., 74 Cal.App.2d 324, 168 P.2d 761; Pacific Indemnity Co. v. Industrial Accident Comm., 85 Cal.App.2d 490, 193 P.2d 117.

BRAY, Justice.

PETERS, P. J., and FRED B. WOOD, J., concur.

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