EMPLOYERS' LIABILITY ASSUR. CORPORATION, LIMITED, OF LONDON, ENGLAND, ET AL. v. INDUSTRIAL ACC. COMMISSION ET AL. (Civ. 4080.) (District Court of Appeal. First District, Division 1, California. April 5, 1922. Rehearing Denied May 3, 1922) 207 Pacific Reporter, 60. MASTER AND SERVANT-DISABILITY HELD "NEW AND FURTHER DISABILITY" WITHIN COMPENSATION ACT, AND NOT CONTINUING ILLNESS. Where, as a result of an employee's efforts to work foliowing his disability, for which he had received compensation, new complications in his physical condition, traceable to the original injury set in, and his nervous system was broken down so that he was incapacitated for his duties, his condition constituted a "new and further disability," within Workmen's Compensation Act, § 11c, and not a mere "continuing illness." (For other cases, see Master and Servant, Dec. Dig. § 419.) Application by the Employers' Liability Assurance Corporation, Limited, of London, England, and the C. N. Whitmore Company for certiorari to review an order of the Industrial Accident Commission awarding compensation for injuries to J. T. Souza. Award affirmed. Redman & Alexander of San Francisco, for petitioners. A. E. Graupner, of San Francisco (Warren H. Pillsbury, of San Francisco, of counsel), for respondents. KNIGHT. J., pro-tem. This is a proceeding to review and annul an award of $267,81 granted by the Industrial Accident Commission to J. F. Souza on account of injuries sustained by him while in the course of his employment. The issue presented is whether or not 'Souza's claim is barred by the period of limitation prescribed by the Workmen's Compensation Act. (St. 1913, p. 279, as amended by St. 1917, p. 831), and the determination of that question depends upon whether or not the disability for which the claim is presented was a "new and further disability" within the meaning of that term as it is used in said act. On September 10, 1920, Souza fell from a wagon and sustained a fractured skull. Medical and hospital treatment were supplied by the insurance carrier, and on November 22, 1920, Souza returned to work for his former employer at apparently as good wages as he had previously received, but, on account of a still weakened condition, he was assigned to lighter work. On November 26, 1920, a payment of compensation was made to Souza by the insurance carrier in the sum of $44.27. About January 1, 1921, Souza complained to his employer that he was unable to continue the work, and was thereupon, by the direction of the physician who had previously treated him, placed in the hospital for 10 days. He was incapacitated for work this second time on account of his injury until about the end of March, 1921. On June 4, 1921, Souza filed this application for an award, which was granted, in the sum of $267.81; upon the ground, as respondent contends, that the original injury to Souza had caused "new and further disability." Section 11 (c) of said Workmen's Compensation Act provides, among other things, that an injured employee "may institute proceedings for the collection of compensation within 245 weeks after the date of the injury upon the grounds that the original injury has caused new and further * * or * * * * disability," but in said section it is further provided that "proceedings must be commenced within six months from the date of the injury * * * six months from the date of the last payment of * * * compensation." If, therefore, on January 1, 1921, at the time Souza was again compelled to quit his employment, he was suffering from a "new and further disability" resulting from the original injury, his claim was filed within 6 months of date of the new disability, and consequently is not barred. We are entirely satisfied, after examining the record before us, that Souza's case comes within the "new and further disability" clause above mentioned. When Souza was discharged from the hospital the first time he was released and required to resume his work too soon after the injury. He was subject to spells of dizziness. In this respect his physician testified: "As a matter of fact he never had done his full quota of work since he had been out of the hospital, from his first injury, and I will say, in justice to the man, that I turned him loose too soon. I think I had him report back to work too soon. Mr. Whitmore is a good man to work for and I didn't want to put the insurance company to any more expense than possible, and Mr. Whitmore has favored him or did favor him in his work, but Mr. Whitmore has told me since that he wasn't able to do his full quota of work." The evidence may be further fairly summarized as showing that after Souza was sent back to work his dizziness increased to such an extent that his nervous system was finally broken down and he virtually suffered a relapse. His physician further testified that, on January 1, 1921, the trouble with Souza was dizziness, and that "he was inclined to have an autointoxication, fill up with toxins, poisons"; that "his nervous system was pretty badly shot to pieces at that time, too," and that such a condition very often follows a fracture of the skull or concussion of the brain; that "you get these traumatic conditions, and it shocks the nervous system, upsets the nervous system very much." The petitioners contend that Souza's case merely shows a "continuing illness," from which it is argued that no "new and further disability," is shown. In this respect we think the petitioners are confusing the meaning of the word "illness" with the word "disability." The purpose of the Compensation Act is to give compensation for "disability" proximately caused by injury. Under the provisions of section 9 (b) of said act, compensation is not due for temporary disability after an employee returns to work at full wages, and it follows that when Souza returned to work at full wages there was no "compensable disability." As a result of his efforts to work from November 22, 1920, to January 1, 1921, new complications in his physical condition set in, his nervous system was broken down, and he was finally compelled to quit work. These facts are apparent from the testimony of the physician as hereinabove quoted. Under these circumstances, we are of the opinion that the situation here presented fully and fairly comes within the intent and meaning of the "new and further disability" clause of said Workmen's Compensation Act, and for that reason, the award is affirmed. We concur. Tyler, P. J.; Kerrigan, J. NEWHALL LAND & FARMING CO. ET AL. v. INDUSTRIAL ACC. COMMISSION ET AL. (Civ. 4172.) (District Court of Appeal, First District, Division 2, California. March 18, 1922. Rehearing Denied April 13, 1922. Hearing Denied by Supreme Court May 15, 1922.) 206 Pacific Reporter, 769. 1. MASTER AND SERVANT-COMPENSATION INSURER HELD LIABLE FOR COST OF MEDICAL TREATMENT OBTAINED BY EMPLOYEE. Where an injured employee's letter to the insurance carrier explained the necessity of an immediate operation, which its own physician had also reported as necessary, it was its duty under Workmen's Compensation, Insurance and Safety Act, § 9(a), to provide surgical treatment with all possible diligence, and on its failure to do so within a reasonable time it was liable for the reasonable cost of treatment obtained by the employee. (For other cases, see Master and Servant, Dec. Dig. § 385[16].) 2. MASTER AND SERVANT-LETTER TO COMMISSION FROM EMPLOYEE HELD AN "APPLICATION" WITHIN COMPENSATION ACT. An injured employee's letter to the Industrial Commission stating that a case of aggravated hernia, developing from injury, required an operation, and asking the Commission to inquire into the matter of his injury, held an "application" within Workmen's Compensation, Insurance and Safety Act, § 17(a), sufficient to avoid the limitation of six months prescribed by section 11, though not served on the insurance carrier, which was fully informed about the case and the application. (For other cases, see Master and Servant, Dec. Dig. § 398.) (For other definitions, see Words and Phrases, First and Second Series, Application.) 3. MASTER AND SERVANT COMPENSATION INSURER NOT PREJUDICED BY INFORMALITIES. The Industrial Accident Commission's neglect to hear the matter within 30 days after the filing of the application as required by Workmen's Compensation, Insurance and Safety Act, § 17, held a mere informality within section 60, not prejudicial to the insurance carrier. (For other cases, see Master and Servant, Dec. Dig. § 417[8].) Application of the Newhall Land & Farming Company and another against the Industrial Accident Commission and another, for certiorari to review an order awarding compensation for injuries. Award affirmed. Redman & Alexander, of San Francisco, for petitioners. LANGDON, P. J. This matter comes before us upon a petition for a writ of review. Ysmael Olivera was employed in December, 1919, by Newhall Land & Farming Company at a ranch in San Luis Obispo county. The Continental Casualty Company was the insurance carrier. The parties are subject to the provisions of the Workmen's Compensation, Insurance and Safety Act of 1917 (St. 1917, p. 831), as amended in 1919 (St. 1919, p. 910). Olivera was injured in the course of his employment by being thrown from his horse while trying to overtake a runaway team on the ranch. This accident resulted in an injury designated by the physicians as a right inguinal hernia. The Industrial Accident Commission found that medical treatment by Dr. Brown was furnished to Olivera by the insurance carrier, which treatment extended from the time of the injury until some time in January, 1920. Olivera testified, as also did Dr. Brown, that a truss was fitted, and it was hoped that the injury might be repaired in time without the necessity of an operation. Dr. Brown testified that at first the truss seemed to give good results, but later, during his treatment of Olivera, it became apparent that an operation was necessary for a permanent cure, and he so informed Olivera. He testified, however, that he had no authority from the insurance carrier to perform the operation, and would not have done it himself, and that he did not tell Olivera who would be engaged to perform this service. From his testimony it is clear that he had no reason to believe that the insurance company would authorize or pay for any operation. He also testified that up until the end of January he considered the truss satisfactory and effective in curing the injury; that he never informed the insurance carrier that a surgical operation was necessary, and was never instructed by them to perform such an operation or to make arrangements to have such an operation performed. Olivera went to his home in Santa Maria after Dr. Brown had done what he could for him without an operation. About May, 1920, he consulted a physician of his own choosing, and was advised by him that an operation was necessary, and that strangulation was likely to result from the injury unless the operation was performed at once. On May 28, 1920, as found by the Industrial Accident Commission, Olivera wrote to the Continental Casualty Company, demanding further treatment, and stating that it must be had without further delay. The insurance company corresponded with Dr. Brown about the matter, and sent Olivera a check for $38.38 as payment in full of all claims growing out of his injury and disability. On June 8, 1920, Olivera returned this check, stating that it could not be accepted in full payment because the injury was causing much pain and trouble; that an immediate operation was necessary; and stated that he was inclosing a copy of a letter which he was that day sending to the Industrial Accident Commission. In this letter to the insurance company he demanded payments due him under the provisions of the compensation act. On the samne date he addressed a letter to the Industrial Accident Commission, which has been found by it to be an application within the requirements of section 17(a), Workmen's Compensation, Insurance and Safety Act of 1917. As this matter is the chief point of attack by petitioners herein, and must be disposed of in this proceeding, it is necessary to set out such application in full. It reads as follows: "San Luis Obispo, Cal., June 8, 1920. "Industrial Accident Commission, 525 Market Street, San Francisco. California-Gentlemen: On December 18, 1919, I was injured while in the employ of Newhall Land & Farming Company at their Suey Ranch near Santa Maria. I was given medical treatment by Dr. Brown of Santa Maria but without being permanently cured. A bad case of hernia has developed as a result of the injury and it is in such an aggravated state that the doctor who examined me recently (Dr. P. K. Jackson of San Luis Obispo) advises that an operation is necessary and that a cure or relief cannot be expected otherwise. "The Newhall Land & Farming Company were covered under their policy No. 48564 issued by Continental Casualty Company through their San Francisco office. The matter has been reported to the aforesaid casualty company. Under date of May 5, 1920, their check was transmitted to me for $38.38 and at the same time they requested my receipt and final receipt. I wrote to them that I could not accept their money under those conditions as my case requires medical treatment but to this letter I have received no reply. "The doctors advise that an operation be performed without further delay and have arranged to do so on Thursday of this week, June 10. I am under the care of Dr. P. K. Jackson and Dr. N. J. Shields of this city. “I would ask that the matter of my injury be looked into by you and that the aforesaid company be directed to carry out the intent of the Workmen's Compensation Act. "I forward a certificate signed by Dr. Jackson to the office of the Casualty Company with my recent letter to them. "Thanking you for prompt attention, I am, "Very truly yours, Y. Olivera, A." The Industrial Accident Commission acknowledged receipt of this letter, and stated that the insurance company desired time within which to get a report from Dr. Brown and would communicate with Olivera further after receiving such a report. After the original award of the Industrial Accident Commission was made, a rehearing was granted at the request of the petitioners here, and additional evidence was submitted and amended findings and award made. It was found that no treatment was tendered to Olivera in response to his demand of May 28, 1920, on the insurance company, and no intimation was made to him that such treatment would be furnished or forthcoming, and applicant, therefore, on the 14th day of June. 1920, obtained such treatment from physicians of his own selection; that the time intervening between said demand and the procuring of such treatment was adequate to give said defendant an opportunity to tender such treatment had it been so disposed. The Industrial Accident Commission, therefore, awarded to Olivera the reasonable cost of such treatment. It is contended by petitioners that Dr. Brown, the physician for the insurance company, offered to procure for Olivera an operation several months before it was actually performed, and therefore the insurance company is not liable for the cost of medical attention which he procured for himself. It is also contended that the failure of Olivera to accept this offer at the time it was made increased his period of disability before the operation, and also increased the period of disability after the operation, because the injury had increased and required more repair, and the operation was, in consequence, a greater drain on the vital forces. As to this last matter, the commission found that the disability following the operation was not prolonged by the failure to have the operation performed earlier. Section 67, subd. "c," of the Compensation Act provides that the findings and conclusions of the commission on questions of fact shall be conclusive and final, and shall not be subject to review. The objection that Olivera's hesitancy about an operation had increased the period of disability prior to the operation was recognized by the commission, and met by its award and by its findings, which recite that "By reason of the injury the applicant was totally disabled from the date thereof until April 25, 1920, a period of 18 3/7 weeks and is entitled by reason thereof to a weekly payment of $12.83 for 17 3/7 weeks, amounting to the total sum of $223.43, said weekly payments being based upon monthly earnings of $90. Said disability also continued after April 25, 1920, but at said time the defendant's physician had tendered to the applicant a surgical operation for the cure of said hernia, and the applicant neglected and refused to submit thereto, or to accept such operation, and the same was not performed until June 14, 1920. Such refusal was unreasonable, and proximately caused disability from said 25th day of April to said 14th day of June, 1920, and applicant is not entitled to compensation for said period." Allowance of $93.50 was made to the surgeon performing the operation, which was a substantial reduction of his bill appearing in the record for |