United States Fidelity & Guaranty Co. v. Industrial Accident Commission

It is conceded that petitioner is under liability to pay compensation to respondent Whyte, at least as for disability caused in part by the accident of June 23, 1926. The award as made is for temporary total disability from that date to December 28, 1926, and thereafter until termination of disability or until further order of the Commission.

Petitioner contends that claimant, at and after the time of the accident, was suffering from a pre-existing active disease, contributing to the disability, and, therefore, that the claimant is entitled to compensation for only such portion of the disability as is due to the aggravation of the pre-existing disease. This contention rests upon subdivision 4 of section 3 of the Workmen’s Compensation Act of 1917, as amended in the year 1919 [Stats. 1919, p. 911], which provides that, under the stated condition, “compensation shall be allowed only for such proportion of the disability due to the aggravation of such prior disease as may reasonably be attributed to the injury. ’ ’

Respondent Commission admits the fact of the preexistent and continuing disease, concurrent with the injury resulting from the accident, and that the question of…