Subsequent Injuries Fund v. Workmen's Compensation Appeals Board
Opinion
lead Opinion
Mosk, J.
This is a companion case to Subsequent Injuries Fund v. Workmen’s Comp. App. Bd. (Talcott), ante, page 56 [ 84 Cal.Rptr. 140 , 465 P.2d 28 ],
Nick Baca (hereinafter called respondent) sustained two industrial injuries to his back, one on December 1, 1959, and one on March 1, 1961. He received voluntary temporary disability payments until February 1, 1963. On April 24, 1963, he filed two separate applications for benefits, one for each injury, against his employer and its insurance carrier. An award fixing permanent total disability at 691Ó percent was made on December 4, 1964. Of this total disability 3lió percent was attributed to the 1959 injury and 38 percent to the 1961 injury.
On February 28, 1966, one day short of five years following the second injury, respondent filed a petition to reopen the proceeding relating to the *76 second injury, alleging that he had suffered new and further disability. The only defendants in this proceeding were his employer and its carrier. In May 1967 the Workmen’s Compensation Appeals Board (hereinafter the Board) increased the disability rating from the second injury to 53 percent, thus raising the total disability- rating to 84V£…
concurrence Opinion
Sullivan, J.
I concur in the judgment annulling the decision of the Board. For the reasons -set forth in my dissenting opinion in Subsequent Injuries Fund v. Workmen’s Comp. App. Bd. (Talcott) ante, page 56 [ 84 Cal.Rptr. 140 , 465 P.2d 28 ], I am of the opinion that the award of subsequent injuries benefits to the applicant herein should be annulled upon the ground that his claim therefor was
*77 barred by the provisions of section 5410 of the Labor Code (see Subsequent etc. Fund v. Ind. Acc. Com. (Patterson) (1952) 39 Cal.2d 83 [ 244 P.2d 889 ]; Subsequent Injuries Fund v. I.A.C. (Pranzitelli) (1957) 151 Cal.App.2d 606 [ 312 P.2d 78 ]; State of Cal. v. Industrial Acc. Com. (Clubb) (1957) 155 Cal.App.2d 288 [ 318 P.2d 34 ]), and not upon the rationale relied upon by the majority with which I disagree.
Petitioner’s application for a rehearing was denied March 25, 1970.