Subsequent Injuries Fund v. Workmen's Compensation Appeals Board

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 sections 5405 and 5410 of the Labor Code. (See Subse *84 quent 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 ]; Subsequent etc. Fundv. Ind. Acc. Com. (Ferguson) (1960) 178 Cal.App.2d 55 [ 2 Cal.Rptr. 646 ]; State of California v. Ind. Acc. Com. (Busch) (1962) 198 Cal.App.2d 818 [ 18 Cal.Rptr. 458 ].)

Petitioner’s application for a rehearing was denied March 25, 1970. Sullivan, J., was of the opinion that the petition should be granted.

This is also 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 ].

Archie Woodburn (hereinafter called respondent) contracted tuberculosis while he worked at a hospital between March 6, 1957, and December 31, 1958. He was aware in January 1959 that the disease was of industrial origin. From 1959 onward the employer’s carrier voluntarily paid him benefits. On November 30, 1964, he filed a claim for normal compensation benefits against his employer and its insurance carrier. In December 1965 the Industrial Accident Commission (now the Workmen’s Compensation Appeals Board, hereinafter the Board) issued findings and an award attributing 65 percent of respondent’s disability to the industrial injury and the remainder to preexisting emphysema. This was based upon a doctor’s report apportioning 65 percent of disability to the later injury and 35 percent to respondent’s prior impairment. An application for benefits against the *83 Subsequent Injuries Fund (hereinafter called the Fund) was not filed by respondent until January 1967.

The Board found that the claim was not barred because the award made…