COLONIAL INS CO v. INDUSTRIAL ACCIDENT COMMISSION (1945)

Petitioner seeks to annul an order of the Industrial Accident Commission on the ground that respondent Nickles' claim was barred by the statute of limitations, section 5405(a) of the Labor Code, St.1937, p. 295.

The essential facts are these:

On January 3, 1944, respondent Nickles sustained an injury, arising out of and occurring in the course of his employment, consisting of a right inguinal hernia. On January 5, 1944, respondent Nickles was examined by Dr. Hull, who told him that he had a hernia. The following day he was examined by a doctor for the petitioner. On January 18 and 20, 1944, respondent Nickles was examined by Dr. John D. Gillis, who reported as follows:

‘This man [referring to respondent Nickles] still states that he is not going to accept surgery, at least not temporarily, and is going to continue wearing the truss and continue working. Under the circumstances I have no further recommendations to make.’

The claim of Mr. Nickles was not filed until August 31, 1944.

This is the sole question necessary for us to determine:

Was respondent Nickles' claim barred by the statute of limitations, section 5405(a) of the Labor Code, since it was not filed until more than six months after the date of the injury?

This question must be answered in the affirmative and is governed by this rule:

A claim for compensation for an industrial injury is barred by the statute of limitations unless the same is filed within six months from the date of the 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. (Section 5405(a) of the Labor Code.)

It is likewise established that the statute of limitations starts to run when the claimant knows or by the exercise of reasonable care and diligence should know that an accident has resulted in a compensable injury. (Travelers Ins. Co. v. Industrial Accident Commission, 32 Cal.App.2d 643, 646, 90 P.2d 327.)

In the present case the undisputed evidence discloses that on January 5, 1944, respondent Nickles knew that he had suffered a compensable injury. There is a total absence of any evidence that any compensation was paid him or agreed to be paid to him, therefore the statute of limitations commenced to run on January 5, 1944. The present claim was not filed until August 31, 1944, more than seven months after he had knowledge of his injury. The claim not having been filed within six months from the date Mr. Nickles learned of his injury, the statute of limitations had run when the claim was filed and barred any award. (Section 5405(a) of the Labor Code.)

For the foregoing reasons the order is annulled.

McCOMB, Justice.

MOORE, P. J., and W. J. WOOD, J., concur.