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

STANDARD RECTIFIER CORPORATION, a corporation, and Aetna Casualty and Surety Company, a corporation, Petitioners, v. INDUSTRIAL ACCIDENT COMMISSION of the State of California and Edith J. Whiddon, Respondents.

Civ. 8262.

Decided: May 16, 1966

Wallace, Brown & Crain, Newport Beach, for petitioners. Everett A. Corten, San Francisco, Edward A. Sarkisian and Romaine E. Harper, Los Angeles, for respondent, Industrial Accident Commission.

Petitioners seek annulment of an order of theIndustrial Accident Commission awarding compensation for permanent disability resulting from an industrial injury respecting which no prior award had been made under the Workmen's Compensation Statute. The proceedings to collect permanent disability benefits were commenced at a time when other proceedings for the collection of other benefits under the statute were barred by the statute of limitations, viz, Labor Code § 5405; were predicated upon the claim the original injury had caused a ‘new and further disability’; and were instituted under the provisions of Labor Code § 5410 which, subject to the limitations hereinafter noted, permitted their commencement within five years after date of the original injury.

A dispositive issue for determination by this court is whether, as contended by petitioners, the instant § 5410 proceedings were barred by the statute of limitations. The Commission found to the contrary. We have concluded this finding is not supported by the evidence.

Pertinent provisions of § 5410 declare:

‘Nothing in this chapter [viz, that providing statutes of limitations] shall bar the right of any injured employee to institute proceedings for the collection of compensation within five years 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.’

In substance, the proceedings included within § 5410 are excepted from the statute of limitations prescribed by § 5405. (Employee's Credit Co. v. Industrial Acc. Com., 177 Cal. 46, 49, 169 P. 1001.)

That part of § 5410 authorizing institution of proceedings at any time within five years after date of injury has been limited in application by judicial interpretation of the statute as a whole. It now may be stated as a general rule that to enable an employee to collect compensation for a new and further disability under § 5410, following expiration of the statute of limitations period prescribed by Labor Code § 5405, he must have been furnished benefits under the workmen's compensation provisions of the Labor Code by the employer either voluntarily or pursuant to an award of the Commission. (Cowell Lime & Cement Co. v. Industrial Acc. Com., 211 Cal. 154, 161, 294 P. 703, 72 A.L.R. 1118; Westvaco etc. Corp. v. Industrial Acc. Com., 136 Cal.App.2d 60, 66–67, 288 P.2d 300; Broadway-Locust Co. v. Industrial Acc. Com., 92 Cal.App.2d 287, 290, 206 P.2d 856; Pacific Indem. Co. v. Industrial Acc. Com., 85 Cal.App.2d 490, 494, 193 P.2d 117; American Motorist's Ins. Co. v. Industrial Acc. Com., 9 Cal.App.2d 66, 68, 48 P.2d 721; Kauffman v. Industrial Acc. Com., 37 Cal.App. 500, 501–503, 174 P. 690.)

The rationale supporting this rule is that the ‘new and further disability’ to which § 5410 proceedings are directed is a disability in addition to that on account of which the employer previously conferred a benefit he was required to confer by the statute and did so either voluntarily or in response to an award. In either event the benefit previously conferred must equate the discharge of an obligation on account of a compensable disability. Furnishing medical treatment for an industrial injury constitutes such a benefit. (Labor Code § 4600; Pacific Indem. Co. v. Industrial Acc. Com., supra, 85 Cal.App.2d 490, 495, 193 P.2d 117.) The issue for determination by this court, as presented in the points and authorities filed by the parties to this proceeding, is whether the giving of ‘pain pills' by a supervisor to an employee under the circumstances of this case constitutes furnishing medical treatment within the rule.

The Commission found that the employee, Edith J. Whiddon, while employed by Standard Rectifier Corporation, one of the petitioners herein, between Jan. 18, 1960, and June 15, 1961, sustained injury to her neck and right arm arising out of and occurring in the course of her employment, which resulted in permanent disability entitling her to compensation in the sum of $1763.79. The industrial injury consisted of the aggravation of a pre-existing cervical disc degeneration resulting in disc surgery.

The employee testifed her work required her to move her head repetitively on an average of 5000 times a day, five or six days a week. In April, 1961, she first experienced pain in her arms, neck and head; reported this condition to her immediate supervisor; and upon request, received from the latter a ‘gray pain pill’. About a month later she went to her family physician and complained that her shoulder and head were hurting. He gave her a ‘small’ treatment. In May and June 1961, she also reported similar pains to her supervisor and received similar pain pills. On the occasion of these reports she advised the supervisor that the machines she was operating were causing the pain; were not set right; and the lights were bad. On one occasion she told her supervisor the work was ‘aggravating’ her back and head. On the June occasion she was advised by her supervisor to go to the latter's doctor to see if he could relieve her headaches; thereupon made an appointment with the doctor, an osteopath; and received a treatment from him for which she paid. In January, 1962, she received a leave of absence in response to a request therefor to the plant superintendent whom she told the work was causing pains in her neck, arms and head; was away a considerable period of time; and shortly after her return, upon advice of her family doctor, terminated her employment on July 27, 1962.

The supervisor from whom the employee received pain pills was not a nurse. There is no evidence supporting a conclusion the supervisor was authorized by her employer to act as a nurse; to furnish pain pills; to receive reports of industrial injuries received by employees under her supervision; or to do anything other than supervise the work assigned such employees. Whether the employer provided facilities or personnel for medical, nursing or first aid treatment on the employment premises, and what provision, if any, was made for reporting industrial injuries sustained by employees, does not appear.

The employee's application for compensation was filed a year and three weeks after termination of employment and, unless authorized by § 5410, was barred by § 5405.

A hearing upon the application resulted in a report by a referee who found applicant's claim was barred by the statute of limitations under Labor Code § 5405, and also that her disability was unrelated to employment. Thereupon, the Commission found applicant ‘did not sustain an injury arising out of and occurring in the course of her employment’; made no finding on the statute of limitations issue; and ordered that applicant take nothing by reason of her claim. Thereafter, a petition for reconsideration was granted; the order was set aside; and further proceedings were held. The referee conducting the subsequent hearing found applicant's work aggravated an existing cervical disc degeneration which resulted in permanent injury. Following this the Commission, as heretofore noted, found applicant sustained a compensable injury resulting in permanent disability; also found her claim was not barred by the statute of limitations; and ordered the award which is the subject of review in the instant proceedings. A petition for reconsideration was denied. In an opinion accompanying the order of denial, the Commission stated:

‘According to her testimony, applicant complained to her immediate supervisor, Ruth Kinney about her pains and advised her supervisor that the pains were caused by her work and asked her for some pain pills. Her supervisor gave her the pain pills, which applicant had heard were on the premises for other girls. The application was filed some three weeks over a year after the last exposure, thus, if she were not furnished benefits, the Statute of Limitations would have run. We are of the opinion that the furnishing of the pain pills by the supervisor with the knowledge that they were to alleviate a work caused condition constituted the furnishing of medical treatment. Accordingly, the Statute of Limitations is not a bar to applicant's claim.’

Petitioners contend the evidence does not support a finding that the furnishing of pain pills by the supervisor to the employee, under the circumstances of this case, constituted furnishing medical treatment by the employer which it was required to provide by the workmen's compensation provisions of the Labor Code and, for this reason, did not constitute a benefit conferred under those provisions which authorized the institution of proceedings under § 5410.

Respondents contend the motivating reason for the rule that § 5410 proceedings may be instituted only where workmen's compensation benefits have been provided voluntarily or by an award is to furnish notice to the employer that the employee has sustained a compensable industrial injury; the evidence in the case at bench shows the employer received a notice of the employee's claim she suffered injury as the result of her work; and, therefore, the furnishing of pain pills under these circumstances constituted furnishing medical treatment within the meaning of the rule.

Although notice to the employer that an employee has sustained an industrial injury is a factor essential to a determination that the employer voluntarily has provided medical treatment authorizing institution of § 5410 proceedings.1 (Gen. see Pacific Indem. Co. v. Industrial Acc. Com., supra, 85 Cal.App.2d 490, 496, 193 P.2d 117; Morrison v. Industrial Acc. Com., 29 Cal.App.2d 528, 534–535, 85 P.2d 186), there are other factors equally essential to such a conclusion. In the case at bench these additional factors are that giving the pain pills to the employee constituted medical treatment which the statute required the employer to provide, and that this medical treatment was provided by the employer, that is, furnished by the supervisor on behalf of the employer.

The medical treatment requirement is prescribed by the provisions of § 4600 of the Labor Code that:

‘Medical * * * treatment, including nursing, medicines * * * and apparatus * * * which is reasonably required to cure or relieve from the effects of the injury shall be provided by the employer. * * *’

It has been held that ‘medical treatment,’ within the meaning of the statute, does not include furnishing aspirin by a fellow employee (Stevens v. Ind. Acc. Com., 28 C.C.C. 39); an examination by the employer's physician for the purpose of determining the nature and extent of employee's injury in order that the merits of the latter's claim might be determined (Hunt v. Industrial Acc. Com., 43 Cal.App. 373, 375, 185 P. 215); an examination by such a physician with the suggestion the employee not work (American Solvents & Chemical Corp. v. Industrial Acc. Com., 14 Cal.App.2d 169, 170, 57 P.2d 954); nor such an examination with the advice to continue taking the medicine prescribed by the employee's physician. (Whoriskey v. City & County of San Francisco & S. F. Water Dept., 20 I.A.C. 10.) On the other hand, ‘medical treatment’ has been held to include first aid treatment administered by a nurse in a hospital maintained on the employer's premises (Pacific Indem. Co. v. Industrial Acc. Com., supra, 85 Cal.App.2d 490, 495, 193 P.2d 117); and first aid with similar treatment over a period of four days administered by a foreman using supplies from a first aid kit furnished by the employer. (Johnson-Western Co. & Pac. Emp. Ins. Co. v. Ind. Acc. Com., 15 C.C.C. 104.)

It must be assumed the supervisor was innocent of any violation of law and did not give the employee a pain pill that could be dispensed only upon prescription. (Gen. see Health & Saf. Code §§ 11001, 11163, 11168, 11176, 11225, 11500, 11901, 26255.) Furnishing a non-prescription ‘gray pain pill’ was no more significant than furnishing aspirin.

The receipt of medical treatment by an employee on account of an industrial injury authorizes the institution of Section 5410 proceedings only when it has been provided by the employer. Medical treatment was not provided by the employer where administered by a physician to an employee as a personal favor to a representative of the employer, no charge having been made against the employer for the services rendered, even though it was within the scope of the duties of the employer's representative to provide such treatment for injured employees (Beverly v. Fairmont Hotel, 85 Cal.App. 567, 569, 259 P. 955); where the physician was not acting as such on behalf of the employer but in another capacity, e. g., as an adjuster (Thesing v. White & Gloor and Aetna Life Ins. Co., 9 I.A.C. 130); where the physician had no authority from the employer to treat the employee (American Solvents & Chemical Corp. v. Industrial Acc. Com., supra, 14 Cal.App.2d 169, 170, 57 P.2d 954); where the treatment was given by another employee in a capacity other than as a representative of the employer (Stevens v. Ind. Acc. Com., supra, 28 C.C.C. 39); or where the treatment, consisting of an injection at the scene of an accident and the summoning of a plant ambulance, was provided by a plant nurse as an act of humanitarian assistance to a person in distress rather than in the scope of her duties as a nurse. (Simmonds v. I. A. C., Douglas Aircraft Co., Inc., Employers Mutual Liability Insurance Co. of Wisconsin, 20 C.C.C. 204.)

The evidence in the case at bench does not support the conclusion that the supervisor was authorized to furnish medical treatment on behalf of the employer; shows only that she was ‘employed in an industrial pursuit’ (Pacific Indem. Co. v. Industrial Acc. Com., supra, 85 Cal.App.2d 490, 497, 193 P.2d 117); and does not show that in furnishing pain pills to the employee she was acting within the express, implied or ostensible scope of her employment. There is no evidence indicating the pain pills were furnished, purchased or paid for by the employer. The conduct of the supervisor does not support an inference that in the respects under consideration here she was acting on behalf of her employer. To the contrary, the only reasonable inference deducible from the evidence is that the supervisor, in furnishing the pills to the employee at the latter's request, and suggesting a treatment by her personal doctor, an osteopath, rather than by the employer's doctor, upon appointment by and at the expense of the employee, was conferring a personal favor upon the employee. Although there is evidence that the supervisor kept the pain pills in her desk, and the employee had been told of this by other employees, these circumstances do not support an inference that the pills were furnished by the employer or that the latter authorized the supervisor to distribute them to injured employees.

Section 4600 of the Labor Code not only imposes upon the employer the duty to furnish medical treatment to an employed for an industrially sustained injury, but also confers on the employer the right to select who shall render the medical treatment he is required to provide. (Myers v. Industrial Acc. Com., 191 Cal. 673, 678, 218 P. 11.) Malpractice in the administration of medical treatment for an industrial injury resulting in further injury subjects the employer to further workmen's compensation liability. (Fitzpatrick v. Fidelity & Casualty Co., 7 Cal.2d 230, 233–234, 60 P.2d 276.) These circumstances present factors for consideration in determining whether the person rendering medical treatment to an injured employee was authorized to do so by the employer.

Under the circumstances in this case, the giving of pain pills by the supervisor to an injured employee did not constitute furnishing medical treatment by the employer to cure or relieve the employee from the effects of the injury allegedly sustained.

The award is annulled.


1.  In this opinion, we assume, without deciding, the circumstances in the instant case support a finding the complaints by the employee to the supervisor and the latter's giving the former pain pills constituted notice to the employer of a claimed industrial injury.

COUGHLIN, Justice.

GERALD BROWN, P. J., and WHELAN, J., concur.

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