BIANCO v. INDUSTRIAL ACCIDENT COMMISSION ET AL (1943)

Petitioner, as the surviving wife of Domenic Emile Bianco, filed a claim with the Industrial Accident Commission on the ground that her husband had died from silicosis contracted while employed as a terra cotta presser for Gladding, McBean & Company at Lincoln, California. The Commission found that in April, 1939, the deceased employee was informed by his physician that he was suffering from silicosis, caused by his employment, and that “at said time the employee was temporarily totally disabled for a period of approximately two weeks, and thereafter was partially disabled until the time of his death. April, 1939, therefore constitutes the date of injury herein. No disability payments had been made or agreed to be made, or medical treatment furnished or agreed to be furnished, by the defendants or any of them subsequent to April, 1939, and no proceedings for their collection or for adjustment of compensation had been filed by the employee during his lifetime. The application, filed herein by the widow, Adelina Bianco, on December 1, 1941 [the employee having died June 11, 1941] not having been filed within two years from the date of injury, is barred by limitation of time as provided by the Workmen's Compensation provisions of the Labor Code of California.” Based on this finding an award was denied the applicant whereupon this writ of review was filed. The sole question presented is whether legally or factually the record supports the finding that the claim is barred by the statute of limitations.

Domenic was born in France in 1881. He married the petitioner in 1905. At that time, and until 1912, he worked in a pottery plant in France. In 1912 he and petitioner came to California, and took up their residence at Lincoln. In that year he was employed by Gladding, McBean & Company, a tile and pottery firm, as a clay presser. He worked for no other employer until the day of his death, June 11, 1941. During all of that period he worked at the same general job, although occasionally working in other departments of the plant when there was not sufficient work in the pressing department. From about 1935 on he refrained from doing heavy work, and did not do as much piece–work as formerly.

The record shows that some years after starting to work for Gladding, McBean & Company Domenic began to complain of pains in the chest and shortness of breath. He coughed a great deal. About 1924 he visited a doctor for these complaints. The record is silent as to whether the deceased or his doctor then knew the cause of the condition, or that it was connected with the employment. There is no evidence that at that time he was in fact disabled. He visited a Dr. Gundrum in August of 1932. The doctor testified that at that time his examination showed that the lungs of the deceased were clear, and that he was suffering only from diarrhea. Domenic next visted Dr. Gundrum on April 8, 1937. At that time, according to Dr. Gundrum, the deceased had bronchial pneumonia that “wasn't very active.” On April 17, 1937, Domenic returned and was better. On April 24, 1937, he again visited the doctor, at which time “his lungs were clear.” This doctor did not see Domenic again until December 3, 1938. At that time the deceased tired easily and coughed a good deal, and he had “a patch of fine rales. That is the usual signs of bronchial pneumonia” and he had “a little wheeze.” The doctor further testified that he gave Domenic some medicine “expecting him to clear up like he did the first time but he didn't come back.” At that time this doctor did not know that Domenic had silicosis.

The first doctor to diagnose the disease as silicosis was Dr. von Geldern. Domenic first visited this doctor as a private patient on April 22, 1939. He complained of a cough and shortness of breath. The doctor had X–rays of the chest taken, and from these diagnosed Domenic's trouble as silicosis. He testified that on May 9, 1939, Domenic again visited him and at that time he fully informed Domenic of the disclosures in the X–rays. The doctor testified that he told the deceased that he was afflicted with silicosis, and that the disease was caused by breathing silica dust. He warned the deceased to keep out of dust and to be careful of colds. He did not tell Domenic to stop work or that he was partially disabled, nor did he prescribe any medical treatment.

After Domenic saw Dr. von Geldern he continued at his same employment with Gladding, McBean & Company doing substantially the same type of work that he had performed for many years, but refraining from heavy work with his employer's consent. His wages were substantially the same after 1939 as they were before. In August, 1940, he broke his leg in a hunting accident. He remained off work until February of 1941 when he returned to work for a few days, and then quit because of his health. He then came to San Francisco and consulted a doctor who sent him to the hospital where he died June 11, 1941. A few days before his death his wife consulted the then compensation insurance carrier of Gladding, McBean & Company about filing a claim, but no claim was filed with the Commission. Admittedly, Domenic died from silicosis. The claim here involved was filed by the widow on December 1, 1941.

There is some dispute in the briefs as to what the record shows as to what happened after Domenic visited Dr. von Geldern in 1939. The petitioner testified that her husband visited the doctor “about April,” 1939; that it was then that she and her husband learned that his condition was caused by his work; that “about” that time her husband “stayed away from work * * * about a couple of weeks.” It was apparently based on this evidence that the Commission found that in April, 1939, the petitioner became aware of the nature of his illness and that at said time became totally disabled for two weeks and was thereafter partially disabled until the time of his death. It should be here mentioned that there was introduced into evidence on behalf of the employer the complete pay roll record of this employee. That record shows no loss of income for April of 1939, in fact that month was one of his best earning months in that year. Nor does that record show any substantial wage loss for May, 1939. Although petitioner testified that her husband did not work for this two–week period, there is a total lack of evidence as to any material wage loss during this time. Petitioner did state that her husband gave up heavy work and did not do piecework, but the record does not show that this resulted in any material wage loss.

There are two basic questions presented on this appeal. The first has to do with the proper interpretation of § 5406 of the Labor Code, St.1937, p. 295, and the second has to do with the application of that section to the facts here involved.

Section 5406 provides that the periods within which an action for death benefits may be commenced are as follows:

“(a) One year from the date of death, and in any event within––

“(1) Two years from the date of injury, except as otherwise provided in this section.

“(2) 240 weeks from the date of injury, where the injury causing death also caused disability which continued to the date of death and for which a disability payment has been made, or agreed to be made, or proceedings for its collection had been instituted within the time limits set forth in section 5405.

“(b) Two years from the date of injury, in cases described in section 5405(b).”

The respondents take the position that, where no claim has been filed by the employee during his lifetime, under sub. (a) (1), supra, the death benefit claim must be filed within two years from the date of injury, and if that time has elapsed before the death of the employee, the death benefit claim is barred before it ever arose. The Commission so held. The petitioner contends that if the claim is filed within one year after the employee's death the statute is satisfied, and that it is not necessary that it also be presented within two years of the date of injury. Were the question an open one, there are strong arguments in support of petitioner's position. It can be logically argued that the legislature never intended that the widow's independent and constitutional right should depend upon whether or not the injured employee files a claim prior to his death. The result of the rule contended for by the Commission is that not only in some cases will the widow's claim be barred before it arose, but it means that a widow whose husband dies immediately from an industrial injury has a longer period to file a claim than the widow whose husband lives for some time after the injury. Other states with substantially similar statutes have had no difficulty in reaching the interpretation contended for by petitioner. See cases collected Burke v. Industrial Comm., 368 Ill. 554, 15 N.E.2d 305, 119 A.L.R. 1158. The following two cases are illustrative. In Hoy v. T. S. Grayson Lumber Co., 15 La.App. 176, 130 So. 651, the statute provided that a claim for a death benefit had to be presented within one year “after the accident or death” or unless compensation was sought within one year after the accident. Act La. No. 20 of 1914, § 31, as amended by Act No. 85 of 1926. The claim was filed more than one year after the accident, but in less than one year after death. The court held that it was not barred, saying that, although the “letter” of the statute so provided, on principle the statute of limitations does not run until death because it is then that the cause of action first accrues. In Burke v. Industrial Commission, 368 Ill. 554, 15 N.E.2d 305, 119 A.L.R. 1152, the statute provided that the claim was barred (after specifying several minor, inconsequential requirements), “in any case, unless application for compensation is filed with the industrial commission within one year after the date of the injury or within one year after the date of the last payment of compensation.” Ill.Rev.Stat.1937, c. 48, § 161. The widow filed for death benefits within one year after death, but more than one year after the accident. The court held that she was not barred, saying that the “injury” to the widow did not occur until the death of her husband, and that any other interpretation would render the death benefit a nullity in many cases.

However, the question is not an open one in this state. The precise point was presented to, and decided by, the appellate court in Glavich v. Industrial Acc. Comm., 44 Cal.App.2d 517, 112 P.2d 774. It was held in that case (without mention of the cases from other states where the same problem has been discussed) that a widow's claim is barred if not filed within two years of the date of the injury to the husband, even if the two years have elapsed at the time of death. The Supreme Court denied a hearing. This court, as an intermediate appellate court, is bound by that decision.

The next question is whether there is any support for the Commission's conclusion that the date of injury to the husband was April of 1939.

Where an employee suffers the loss of a limb or other distinct injury there is no difficulty in ascertaining the exact date of the injury that will start the statute of limitations running. But a different situation exists as to progressive occupational diseases such as silicosis. As to such diseases there is no precise point of time that can be determined to be the exact date of injury. It is obvious that in such cases there is usually a long period during which the employee may be partially incapacitated, but during which he continues in his employment without material wage loss. During this period the constant exposure to the factors that caused his condition aggravates the condition. As to such cases the courts of this state have determined that the date of injury so as to start the statute of limitations shall be when the employee first learns, or should have learned, that he has the disease in question and that it was caused by his employment, and when he knows, or should know, that he has suffered a total or partial compensable disability. This rule was first announced in this state in silicosis cases in Marsh v. Industrial Acc. Comm. 217 Cal. 338, 18 P.2d 933, 86 A.L.R. 563. In that case there are several quotations worth repeating. At page 343 of 217 Cal., 18 P.2d at page 935, the court stated: “In such an occupational disease, the specific date of origin is impossible of determination. It is the cumulative effect of exposure day after day that produces the injurious results; and because of the very fact that ‘injury,’ in the statutory sense, is referable to a period of time rather than a point in time, some rational norm must be adopted for determining the ‘date of the injury’ in the practical application of the statute of limitations embodied in the act.”

At page 344 of 217 Cal., 18 P.2d at page 936, it is said: “The law does not award compensation for mere pain or physical impairment, unless it is of such character as to raise a presumption of incapacity to earn. The object is to make amends for a disability attributable to the employment, and the test is whether there is an incapacity causing loss of earning power in whole or in part. Hustus' Case, 123 Me. 428, 123 A. 514. In order to be compensable, disability need not be limited to incapacity of a workman to pursue his ordinary occupation, but embraces impairment of earning power generally. Gordon v. Evans, 1 Cal. Ind. Acc. Comm. (pt. 2) 94; Savich v. Industrial Comm., 39 Ariz. 266, 5 P.2d 779. The term ‘injury’ then is to be understood as connoting a compensable injury, and is correlated to an incapacity or disability justifying a compensatory award. Dombrowski v. Jennings & Griffen Co., 103 Conn. 720, 131 A. 745. Injury and compensable disability are thus more nearly synonymous expressions than are date of injury and date of accident.”

At page 345 of 217 Cal., 18 P.2d at page 936, it is said: “An injury, then, may arise out of, and in the course of, the employment, when there is a causal connection between the employment and the injury; but for purposes of compensation the injury dates from the time when the diseased condition culminates in an incapacity for work. It is at that time that the employer's liability becomes fixed; for until then the workman had received no injury in the legal sense, though the seeds productive of the injury had lodged in his frame long before. [Citing cases.] When a disease is latent and progressive, it may not culminate until a considerable time after the employment has terminated. So, if the disabling result is delayed, then the injury is correspondingly delayed, and the right to compensation does not accrue until the incapacity occurs.”

At page 351 of 217 Cal., 18 P.2d at page 938, the rule was announced in the following language: “From our study of the subject we are brought to the conclusion that in the case of a latent and progressive disease, such as pneumoconiosis [silicosis], it cannot reasonably be said that the injury dates necessarily from the last day of exposure to a dust–laden atmosphere and that the prescriptive period begins to run from that day. Rather, according to our view, should the date of the injury be deemed the time when 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.”

The rule of this case has been reaffirmed in Price v. Industrial Acc. Comm., 9 Cal.App.2d 213, 49 P.2d 294; Argonaut M. Co. v. Industrial Acc. Comm., 21 Cal.App.2d 492, 70 P.2d 216; Morrison v. Industrial Acc. Comm., 29 Cal.App.2d 528, 85 P.2d 186; Travelers Ins. Co. v. Industrial Acc. Comm., 32 Cal.App.2d 643, 90 P.2d 327; Faith v. Erhart, 52 Cal.App.2d 228, 126 P.2d 151.

It will be noted that to start the statute running the employee must know, or have reason to know, not only that he is suffering from an occupational disease, but also he must know, or have reason to know, that the occupational disease has resulted in a compensable disability. In the present case the finding of the Commission is insufficient. It is that Domenic was informed he was suffering from silicosis caused by his employment in April, 1939. It is then found “at said time the employee was temporarily totally disabled for a period of approximately two weeks, and thereafter was partially disabled until the time of his death.” There is no finding that the employee had knowledge that he had suffered a compensable disability. The respondent commission argues that if the employee remained off work two weeks in April, 1939, after he knew he had silicosis caused by his employment, he suffered such compensable injury under § 4650 of the Labor Code, St.1937, p. 282. It is true that if he in fact did lay off two weeks because of the occupational disease, and if in fact he was not paid during that period, that he did at that time suffer a technical compensable disability. But to hold that such a technical disability starts the statute running is not within the spirit of the rule. What the court meant in the Marsh and other cases cited, supra, by a “compensable injury” sufficient to start the statute running, was that the employee must suffer a substantial compensable injury, or an injury for which a reasonable man would seek compensation. Any other rule would be unjust and inequitable.

Before directly discussing the compelling arguments that support the above conclusion it should first be noted that there is no finding and no showing in the record that Domenic did not receive his regular wages from his employer during April and May, 1939. There is no evidence at all that he ever suffered a material wage loss because of his health. It is true that petitioner testified that early in the 1930's her husband refrained from heavy work and did not do as much piecework as formerly, but there is no evidence at all that this materially affected his earnings. According to the table of earnings introduced by one of respondents, Domenic was paid $44.30 during the first half of April, 1939, and $60.61 for the second half. If the Commission incorrectly designated April as the proper month in which Domenic is supposed to have laid off two weeks, and should have designated May of that year as the proper month, that being the month in which Dr. von Geldern testified he told Domenic he had silicosis, the record shows that in the first half of May he received $49.07, and for the second half $36. These figures compare favorably with the normal earnings of deceased over many years. The record shows that from 1936 to 1940 he averaged about $100 per month. From 1932 through 1935, depression years, his income averaged between $45 and $50 per month, while in 1930 and 1931 it was about $100 per month. During the prosperity years of 1922 through 1929 he averaged about $150 per month. From 1912 to 1922 he averaged from under $50 to about $100 per month. During the seven months he worked in 1940 he averaged $100 a month. From this record it will be noted that there is not only no evidence that he suffered a wage loss in April or May, 1939, but there is no evidence that he ever suffered any material wage loss at any time because of his condition. In Chain Belt Co. v. Industrial Commission, 220 Wis. 116, 264 N.W. 502, it was held in a silicosis case, under a statute slightly different from that here existing, that the claimant was not entitled to compensation unless he suffered disability manifested by a wage loss. The reasoning of that case seems sound.

The contention made by respondents that Domenic suffered a partial disability independent of any wage loss that entitled him to a partial disability rating, and that this form of disability starts the statute of limitations running is entitled to but little serious consideration. No case has ever indicated that such type of disability unconnected with a wage loss starts the statute running in cases involving occupational and progressive diseases. If this were the law it would effectually bar an action by an employee or his dependents in most of such cases. It is obvious that in most of such cases the employee is in fact partially disabled long before he suffers a direct and material wage loss. The Marsh and other cases cited, supra, placed no such harsh and rigid limit on the rule there announced.

It should also be mentioned that the uncontradicted evidence shows that Domenic worked continuously until August of 1940, when he broke his leg. He worked at the same job at which he had worked for many years except that he avoided working on heavy pieces. Obviously, whatever disability he had in April, 1939, continued to grow worse until he died in June, 1941. During the period April, 1939, to August, 1940, he must have continued to breathe the dusty air that continuously aggravated the existing condition.

However, even if Domenic did suffer a two–week wage loss, which the record does not show, such minor financial loss cannot operate to start the statute of limitations in such a case. When Domenic returned to work, if he ever did remain off for two weeks, it was at the same scale of pay at his same old job. The cessation was temporary and insignificant.

Other jurisdictions have considered this problem, and have had no difficulty in dispensing with arguments similar to those advanced by the Commission and the insurance carriers in this case. In Romaniec v. Collins Co., 107 Conn. 63, 139 A. 503, cited and relied upon in the Marsh case, 217 Cal. 338, 349, 18 P.2d 933, 86 A.L.R. 563, in a silicosis situation, the court held the action not barred although the employee had ceased work for a four–year period, and said (139 A. at page 505): “The pneumoconiosis from which the claimant suffered was contracted in defendant's factory; and, after an absence from work, upon his physician's advice, of 4 years, in attempting to effect a cure, upon his re–entering defendant's employment the disease progressed until claimant suffered a compensable injury which later developed into an injury causing total disability.” To the same effect is Jadovich v. Collins Co., 109 Conn. 62, 145 A. 25, also cited and relied upon in the Marsh case, 217 Cal. 338, 349, 18 A.2d 933, 86 A.L.R. 563.

In Zurich General Acc. & L. Ins. Co. v. Industrial Comm., 203 Wis. 135, 233 N.W. 772, the decedent suffered from silicosis as far back as January, 1920. Apparently he knew his lungs were being affected. He stopped work for two years for treatment. He worked thereafter only spasmodically, the exact extent of his absences being unknown. He then took an outside job at 20% less wage. He worked there for four years. Then he became totally disabled and died one and one–half years later in January, 1929. Claim was filed in June, 1929. The court held that the claim was not barred by a statute that began to run from the date of the injury.

Similar results may be found in Hunt v. F. R. Patterson Const. Co., 253 Mich. 273, 235 N.W. 207, at page 208 where the length of absence was not stated and the court said: “Many persons afflicted with a slight ailment causing pain and distress do not regard it seriously. They expect that it will soon pass away. Such action on the part of an employee inures to the benefit of his employer. It is apparent that plaintiff felt that he had no ground for complaint against his employer until his condition necessitated his quitting work * * *.” See, also, Texas Employers' Ins. Ass'n v. Fricker, Tex. Civ.App., 16 S.W.2d 390, where the absence was only seven days but the inference is that he could have filed for compensation at that time. See, also, Fidelity & Casualty Co. of New York v. McKay, 5 Cir., 73 F.2d 828.

It appears from these cases, and the rule seems eminently sound and just, that it is not the fact that the decedent may have been technically entitled to compensation that starts the statute running, even if he knew that he was so entitled, but that to have this result the injury must have culminated in a real and material disability to perform his normal work and must have resulted in a material wage loss. There is no evidence of such a condition in the instant case. For these reasons the finding that the claim is barred by the statute of limitations is totally unsupported by any evidence, and the award based thereon cannot stand.

There was some medical evidence produced by respondents that Domenic's condition was caused by exposure to silica dust in Paris prior to 1912. This was contradicted by petitioner's medical witnesses. There was also evidence that at least in 1941 and 1942 the dust content of the air at Domenic's place of work was not sufficient to cause silicosis. There was a conflict on these issues. The Commission made no findings on these issues, basing its award denying compensation solely on the statute of limitations. In view of our holding that the claim is not barred, all concerned are entitled to findings on these controverted matters.

The award is annulled and the cause remanded to the Commission for further proceedings.

I dissent.

Two questions are presented––one of law and one of fact. The first––the interpretation of Labor Code sections––may be disposed of by reference to their language and to the decision in Glavich v. Industrial Acc. Comm., 44 Cal.App.2d 517, 112 P.2d 774.

The period within which a proceeding may be commenced for the collection of a death benefit as applied to the facts of the present case is “One year from the date of death” but “in any event within––(1) Two years from the date of injury * * * (2) 240 weeks from the date of injury” if a “disability payment has been made, or agreed to be made, or proceedings for its collection had been instituted within the time limits set forth in section 5405.” Labor Code, sec. 5406. There is no contention that petitioner herein may maintain this proceeding under the latter portion of the section. “In any event” may be defined as synonymous with the expression “under all or any circumstances,” and, as said in Edwards v. Laird, 22 Cal.App. 398, 400, 401, 134 P. 365, 366, means “no matter what else may be” or “whatever may happen.” In brief, it means that the commencement of a proceeding for the collection of a death benefit such as is here presented may not be delayed beyond the period specified. 26 A.L.R. 788.

The phraseology of the section is definite. Hence it was not necessary in Glavich v. Industrial Acc. Comm., supra, to consider cases from other jurisdictions wherein the statute or the facts are different, and for that reason not applicable. The majority opinion recognizes this fact, when after citing from other jurisdictions it is stated “the question is not an open one in this state” and held “that a widow's claim is barred if not filed within two years of the date of the injury to the husband, even if the two years have elapsed at the time of death.” I agree with the conclusion reached in the majority opinion on the legal question. It is my opinion that the language of the statute, and the Glavich case, control, without reference to decisions from other jurisdictions. In the Glavich case it is said (44 Cal.App.2d at page 520, 112 P.2d at page 777): “Applying the preceding section to the facts of this case, it appears that the claim for death benefit was filed within one year from the date of death. However, it was not filed within two years from the date of injury, which was found by the Commission in the first proceeding to have been on April 22, 1936. In fact, John Glavich did not die until more than two years thereafter. We assume from subdivision (a) of the foregoing section that it is not ordinarily timely to file a claim for death benefit within one year from the date of death unless it is also within two years from the date of injury, for the clause reads that ‘in any event’ the claim must be filed within two years from the date of injury. Subdivision (a) (2) has no application to this case because it provides that the claim may be filed within 240 weeks from the date of injury, only when the disability continues to the time of death, and then only when disability benefits have been actually paid, or agreed to be paid. No compensation was paid to Mr. Glavich. Neither does subdivision (b) of the foregoing section have any application to this case. That subdivision is based on conditions which do not exist in the present proceeding.”

The question of fact may be stated as follows: When did the employee know, or should he have known, that a partial disability had occurred? In determining this question from the evidence we may not draw an inference, though reasonable, inconsistent with that of the Industrial Accident Commission if the conclusion of that body is supported by evidence. That a partial disability had occurred is demonstrated by testimony of the petitioner and of a physician. The record shows that Mrs. Bianco testified as follows:

“Q. When did your husband first tell you he thought that his work caused this trouble? A. A couple of years ago.

“Q. When was the first time? A. Two or three years ago.

“Q. Was it in 1939 when he went to Dr. von Geldern? A. Yes, when they take the X–rays.

“Q. When he went to Dr. von Geldern in 1939, that was about April, wasn't it? A. Something like that.

“Q. And it was then, was it, that your husband told you that he thought his condition was caused by his work? A. I went with my husband at the same time to the office and they say that it was pretty bad and it came from the dust, that is all they say.

“Q. So, then, you and your husband both thought in April, 1939, that his work caused his condition, is that right? A. Yes.

“Q. And when was the first time before April, 1939, that he lost any time because of his condition? A. I don't remember now.”

The physician, personally selected by the employee, testified in substance that the symptoms of silicosis had been present for a number of years; that “When I explained to him it was due to silica dust he explained to me then the nature of the work when he was in Paris and he himself attributed it to that work. * * *

“Q. In other words, you just told him to keep out of the dust and away from colds and infections? A. That is right.

“Q. Did he appear to you as being incapacitated from pursuing his normal occupation there at Gladding, McBean and Company? A. He certainly couldn't have done hard work at that time, that is heavy work, because of his shortness of breath. He was definitely partially disabled. * *

“Q. Did he seem to understand the explanation you made of these X–rays to him? A. Oh, yes.”

The employee remained away from work for some time and upon his return requested lighter work; he evidently did not inform his employer of the seriousness of his physical condition. It seems to be admitted that no compensation was paid during the period of his absence, and none requested. However, in this regard Mrs. Bianco during the period of her husband's hospitalization consulted certain insurance carriers.

The Glavich decision is controlling. However, as I read the majority opinion it holds that to fix the date of injury, in addition to the employee's knowledge of his disability, there must be proof that he knew the disability to be compensable. The opinion also holds that a different rule applies in the case of a “distinct injury,” such as the loss of a limb. As to a progressive occupational disease, the majority opinion states that “there is no precise point of time that can be determined to be the exact date of injury.”

The majority opinion relies primarily upon certain language in Marsh v. Industrial Acc. Comm., 217 Cal. 338, 18 P.2d 933, 939, 86 A.L.R. 563, where there were three separate and distinct petitions for compensation. The Marsh and the Woods applications were for death benefits; that of Lange was for disability compensation in petitioner's own behalf. As to the Woods' application, it was determined that it was not filed within the statutory period, and that the action of the commission “in denying relief was clearly correct.” As to Marsh, the evidence did not “disclose when the presence of pneumonoconiosis or silicosis was or should have been diagnosed as the primary and efficient cause of the disability and later the death of Marsh.” That award was annulled. Such difficulty does not arise in this case. The personal physician of the employee herein fixed the date of partial disability. There is some confusion relative to the month––April or May––but that it immaterial. Either month would have been beyond the statutory period. The physician testified that the patient was suffering from silicosis; that “he had a disability, unquestionably.” In the Lange case there was no finding that silicosis was the cause of the disability, the court at page 352 of 217 Cal., 18 P.2d at page 939, saying, “the evidence fails to disclose sufficient data for a conclusion as to when a causal connection between the occupation and the disability was or should have been discerned.” In the present case the commission found: “By reason of information imparted to the employee in April, 1939, by his physician, he became aware at that time that he was suffering from the disease silicosis, and that a causal connection existed between said employee's occupation as a tile setter and the silicosis from which he was suffering. At said time the employee was temporarily totally disabled for a period of approximately two weeks, and thereafter was partially disabled until the time of his death.” In brief the commission found that there was a disability justifying a compensatory award, and that there was a causal connection between the employment and the injury, and noted the date thereof. “It is at that time that the employer's liability becomes fixed.” Marsh v. Industrial Acc. Comm., supra, 217 Cal. at page 345, 18 P.2d at page 936.

The majority opinion further holds that “There is no finding that the employee had knowledge that he had suffered a compensable disability.” The findings are definite, as above quoted, that the employee was aware that he was suffering from the disease silicosis. The test set forth in the majority opinion (which I am of the opinion is not in entire conformity with the Marsh case) is that the statute runs from the time the employee “knows, or should know, that he has suffered a total or partial compensable disability.” (Italics added.)

With all of the legal ramifications involved in the determination of the question, it was not incumbent upon the commission to directly find that the employee knew that his injury was in fact and in law compensable. It is sufficient under section 5953, St.1937, p. 305, if all the ultimate facts and conclusions are found. In a case such as this, where it does not appear that a constitutional question is involved, the findings on factual questions are not subject to review (sec. 5953) unless there is no evidence to support them. “And if the specific findings of the commission have the support in the evidence and if such findings with the aid of fair inferences sustain the findings of ultimate facts, the action of the commission will not be overthrown.” 27 Cal.Jur., p. 579. In Argonaut M. Co. v. Industrial Acc. Comm., 21 Cal.App.2d 492, 499, 70 P.2d 216, 221, the court said: “The question regarding the possession of knowledge on the part of a claimant, of the cause of his ailment, or as to whether the disease has progressed to an extent which constitutes compensable disability, is primarily one of fact to be determined by the commission. This court will not interfere with its conclusions in that regard unless there is a total absence of evidence to support that finding.” See, also, Pacific Employers Ins. Co. v. Industrial Acc. Comm., 47 Cal.App.2d 494, 118 P.2d 334; Clendaniel v. Industrial Acc. Comm., 17 Cal.2d 659, 111 P.2d 314; Dawson v. Industrial Acc. Comm., 54 Cal.App.2d 594, 129 P.2d 479. The evidence amply supports the findings. The employee knew that he had suffered an injury, and under all the facts and circumstances “should have known” as a “reasonable man” (majority opinion) that the injury was compensable. In Huysman v. Kirsch, 6 Cal.2d 302, 57 P.2d 908, where the holding in the Marsh case was considered, the court said (6 Cal.2d at page 312, 57 P.2d at page 913): “We annulled the awards, and held that the date of the injury was not the date of the exposure, nor even the date of the last exposure to the dust laden atmosphere, but rather the time when the employees became aware that their injuries were due to such exposure, or when by the exercise of reasonable care and diligence they might have ascertained that fact.”

The majority opinion holds that there is “no showing in the record that Domenic did not receive his regular wages from his employer” during a two weeks' layoff (neither was there a direct showing that he did); that any wage loss was not because of his health, and that in any event “The cessation was temporary and insignificant”; that to be entitled to compensation “the injury must have culminated in a real and material disability to perform his normal work and must have resulted in a material wage loss.”

The extent of a temporary layoff and of a “material wage loss” are clearly questions of fact. There is proof that the amounts received as wages for the various half month periods varied materially. We can not say that the inference drawn by the commission from the evidence on these questions is without evidentiary support. Under the circumstances a reviewing court in an industrial accident proceeding is not permitted arbitrarily to determine that as a matter of law a temporary layoff is not sufficient or that a loss of wages is immaterial.

That there was a layoff for two weeks is not contradicted; that Domenic lost some wages is a reasonable inference since his compensation took the form sometimes of a daily or hourly wage and sometimes was on a piecework basis; that there was a material disability is proven by the testimony of his physician, and the fact that he did not perform “his normal work” upon his return, but was assigned to “lighter work.”

The holding in the majority opinion that the finding that the claim is barred by the statute of limitations is “totally unsupported by any evidence” is partially based upon the absence of a material wage loss. That there must be a “material wage loss” to start the statute running is a new rule, to which I am unable to subscribe when the numerous past, present and probable future applications for compensation in silicosis and other diseases or injuries are considered. Such a rule might result in denying compensation in many meritorious cases. In the Marsh case, mainly relied upon in the majority opinion, the employee lost no time and no wages as the result of silicosis. In Postal Tel. Cable Co. v. Industrial Acc. Comm., 213 Cal. 544, 550, 3 P.2d 6, 8, the court said: “The statute does not require a showing of loss of earning power as a prerequisite to the payment of compensation for a permanent disability.” See, also, Frankfort General Ins. Co. v. Pillsbury, 173 Cal. 56, 159 P. 150. It seems unnecessary to consider this point further.

In my opinion the award should be affirmed.

PETERS, Presiding Justice.

KNIGHT, J., concurs.