SUBSEQUENT INJURIES FUND v. WORKMEN COMPENSATION APPEALS BOARD

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

SUBSEQUENT INJURIES FUND of the State of California, Petitioner, v. WORKMEN'S COMPENSATION APPEALS BOARD of the State of California and Wayne E. Pullum, Respondents.

Civ. 9380.

Decided: February 10, 1969

Thomas C. Lynch, Atty. Gen., and Jerold A. Prod, Deputy Atty. Gen., for petitioner. Everett A. Corten, San Francisco, and Nathan Mudge, Los Angeles, for respondent Workmen's Compensation Appeals Board.

For Opinion on Hearing, see 84 Cal.Rptr. 153, 465 P.2d 41.

OPINION

This proceeding presents the same question as Subsequent Injuries Fund v. Workmen's Compensation Appeals Board [Baca], Cal.Rptr. 112, decided today:  once proceedings have been filed before the Board, is a claim filed against the Subsequent Injuries Fund more than 5 years after the date of injury barred by the statute of limitations?   For reasons stated in Baca, supra, the claim is barred and the Board's order must be annulled.

Applicant Wayne Pullum injured his back and shoulders on November 14, 1961 while employed as a glazer by Lund & Son, Inc.   Pullum was given medical benefits.   On October 30, 1964, he applied for benefits against his employer and its carrier State Compensation Insurance Fund.   The next proceeding was a hearing March 10,1967.   Presumably during the interim, the carrier paid compensation to Pullum.   On July 28,1967 the Board made an award based upon 461/212% permanent disability from Pullum's industrial injury, which with his pre-existing condition, totaled 711/212%.

On September 28, 1967, nearly 6 years after the injury, Pullum filed for benefits against the Subsequent Injuries Fund.   The Fund asserted the statute of limitations as a defense.   The Board ultimately concluded the application against the Fund was timely and made an award.   The Fund seeks review of this order.

The claim against the Fund was not timely.   It was not filed within the period of the Board's continuing jurisdiction, five years from the date of Pullum's injury (Lab.Code, § 5410;  Subsequent, etc., Fund v. Ind. Acc. Com. [Patterson], 39 Cal.2d 83, 92, 244 P.2d 889).

In State of Cal., Subsequent Injuries Fund v. Industrial Acc. Com. [Clubb], 155 Cal.App.2d 288, 292, 318 P.2d 34, 37, the court said:

“We conclude that the facts of this case do not present an exception to the general rule that section 5410 applies and that proceedings against the state for payments from the Subsequent Injuries Fund must be instituted within five years from the date of injury.”

The order is annulled.