Subsequent Injuries Fund v. Workmen's Compensation Appeals Board
Opinion
lead Opinion
Mosk, J.
This is another companion case to Subsequent Injuries Fund v. Workmen’s Comp. App. Bd. (Talcott) ante, page 56 [ 84 Cal.Rptr. 140 , 465 P.2d 28 ].
Wayne E. Pullum (hereinafter called respondent) sustained an industrial injury on November 15, 1961. He was afforded medical benefits thereafter andón October 30, 1964, he applied to the Industrial Accident Commission (now the Workmen’s Compensation Appeals Board, hereinafter the Board) for compensation against his employer and its carrier. It was not until July 27, 1967, that the Board made an award in his favor. It found that he had 71 Vz percent disability, 461Ó percent of which was attributed to the industrial injury, and the remainder to a preexisting condition. There was a specific finding that respondent’s condition had not become permanent and stationary until November 16,1966, one day longer than five years from the date of injury. On September 28, 1967, nearly six years after the injury, respondent filed for benefits against the Subsequent Injuries Fund (hereinafter the Fund).
The Board found that the claim against the Fund was timely filed under section 5405 of the Labor Code because, under the award of July 28,…
dissent Opinion
Sullivan, J.
I dissent.
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 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 ].)
Petitioner’s application for a rehearing was denied March 25, 1970. Sullivan, J., was of the opinion that the petition should be granted.