This is a proceeding to review an order of the Industrial Accident Commission denying compensation for injuries sustained by the petitioner in the course of her employment as a nurse in St. Luke's Hospital. The commission found that petitioner, while employed as a nurse from September 4, 1942, to and including March 15, 1943, sustained an injury arising out of and in the course of her employment when she contracted an occupational pulmonary tuberculosis, and further found that petitioner had knowledge of her condition on May 11, 1943. The application for adjustment of
claim was filed on November 16, 1943, which was five days after the lapse of six months from the date, as found by the commission, of the concurrence of compensability and knowledge of the industrial injury. The commission therefore concluded that the application was barred by the statute of limitations.
The existence and nature of the injury, and the fact that it was suffered in the course of and arose out of the employment are not in dispute. Controversial matters concern the date on which petitioner had knowledge that her condition was compensable tuberculosis, and, if such knowledge was acquired more than six months prior to the filing of the application, whether respondents were estopped from setting up the defense of the statute of limitations under the circumstances here disclosed.
The facts surrounding the making of the claim are as follows: Petitioner, a nurse, was employed at St. Luke's Hospital from September 4, 1942, to March 15, 1943. In November, 1942, she was subjected to a tuberculin test which resulted in a negative reaction. On March 10, 1943, an X-ray examination was made of her chest and the doctor making the examination diagnosed her condition as "minimal tuberculosis." On March 12, 1943, petitioner entered a hospital for care and treatment and was placed in a tuberculosis ward. The husband of petitioner was an interne. On several occasions he made sputum tests which were negative. He testified that on June 3, 1943, tests were made which for the first time showed a positive reaction, and at that time petitioner first knew that she had contracted tuberculosis. He said that prior to that time the diagnosis was probable tuberculosis, which prompted him to write a letter to the superintendent of St. Luke's Hospital. That letter was dated May 11, 1943, and set forth the claim that the tuberculosis was industrially caused and compensable. The commission took the date of May 11, 1943, as the date when petitioner had knowledge of the culmination of the injury and as the basis for its conclusion that the claim was barred.
Petitioner contends that the knowledge of culmination of the injury was not acquired until the date when the result of the test of June 3d was known, which her husband stated was June 8th.
The finding of the commission that compensability and
knowledge of the industrial injury concurred on May 11, 1943, is a finding of fact, and under the rules governing these proceedings may not be disturbed if supported by substantial evidence. Taking into consideration the fact that petitioner was a trained nurse and her husband an interne, the commission drew the inference that knowledge of the injury and of its compensable character was available to them at a time prior to the positive tests now relied upon by petitioner as fixing the time of knowledge. It may be assumed that the inference so drawn was a permissible one under all of the circumstances of the case, especially when the date of the letter to the employer is considered.
[1a] Petitioner contends, however, that even if the date of knowledge of the injury was more than six months prior to the filing of the application the evidence before the commission was such that the employer was estopped from setting up the statute of limitations as a defense. In support of this contention petitioner relies upon the following: On May 11, 1943, as above stated, the husband of petitioner advised the employer by letter of the disability of his wife. On May 17th the superintendent of the hospital replied by letter requesting information concerning the alleged contracting of the disease during the period of employment and inquiring whether there was definite evidence that the petitioner had tuberculosis and not a virus disease simulating tuberculosis, and as to what tests had been made. The tests of June 3d were made in response to that letter, and the positive result of the test was obtained on June 8th and was communicated to the employer. On August 3d the superintendent of the hospital wrote to petitioner's husband expressing a preference to settle the matter, advised him that Dr. Hill, chief of the hospital's medical service, was the man on whom they relied for advice and consultation with its insurance carrier, that Dr. Hill was on vacation for about a month, and gave the name and address of the insurance carrier. The husband thereafter had telephone conversations with the superintendent but was told that Dr. Hill was still away. In the early part of September he again communicated with the superintendent and with the insurance carrier, at which time the representative of the insurance company told him they would have to have more investigation before their portfolio on the case would be complete, requested him to return at the end of his vacation and stated that in the meantime someone from the company or the hospital would
investigate the case and interview his wife. He waited for Dr. Hill to return and visit petitioner. He testified that he "let the case ride for a while" because they had requested time in which to investigate, and that the employer had asked him to wait until Dr. Hill had seen the patient. Neither Dr. Hill nor any other representative of the employer called on the petitioner or examined her prior to filing the application for adjustment. In the latter part of September the representative of the insurance carrier asked for "more time" in which to investigate the case. Apparently, the final decision of the employer or its insurance carrier was not communicated to the petitioner. Only when her husband, as he testified, saw that they were "not getting to first base," was the application filed with the Industrial Accident Commission. The commission made no finding on the issue of estoppel and was apparently of the opinion that the lapse of five days beyond the statutory period precluded it from deciding favorably to the petitioner. But the commission had a right to consider the evidence which was favorable to the petitioner on the issue of estoppel. In fact such evidence was without substantial conflict both as to the conduct of the hospital authorities and of the representative of the insurance company.
In Farrell v. County of Placer, 23 Cal.2d 624
[145 P.2d 570, 153 A.L.R. 323], this court applied the doctrine of estoppel where the conduct of the party against whom the claim could be filed was such as to induce the claimant to delay the filing until after the expiration of the time limitation. Here, the repeated requests by the employer and the representative of the insurance carrier for "more time" to complete their medical investigation constituted conduct on which the claimant had a right to rely and which should operate as an estoppel to the plea of the statute of limitations. Where, as here, the delay in commencing action was induced by the conduct of the party sought to be charged the latter may not invoke such conduct to defeat recovery. (Laraway v. First Nat. Bank of LaVerne,
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This is a proceeding to review an order of the Industrial Accident Commission denying compensation for injuries sustained by the petitioner in the course of her employment as a nurse in St. Luke's Hospital. The commission found that petitioner, while employed as a nurse from September 4, 1942, to and including March 15, 1943, sustained an injury arising out of and in the course of her employment when she contracted an occupational pulmonary tuberculosis, and further found that petitioner had knowledge of her condition on May 11, 1943. The application for adjustment of
claim was filed on November 16, 1943, which was five days after the lapse of six months from the date, as found by the commission, of the concurrence of compensability and knowledge of the industrial injury. The commission therefore concluded that the application was barred by the statute of limitations.
The existence and nature of the injury, and the fact that it was suffered in the course of and arose out of the employment are not in dispute. Controversial matters concern the date on which petitioner had knowledge that her condition was compensable tuberculosis, and, if such knowledge was acquired more than six months prior to the filing of the application, whether respondents were estopped from setting up the defense of the statute of limitations under the circumstances here disclosed.
The facts surrounding the making of the claim are as follows: Petitioner, a nurse, was employed at St. Luke's Hospital from September 4, 1942, to March 15, 1943. In November, 1942, she was subjected to a tuberculin test which resulted in a negative reaction. On March 10, 1943, an X-ray examination was made of her chest and the doctor making the examination diagnosed her condition as "minimal tuberculosis." On March 12, 1943, petitioner entered a hospital for care and treatment and was placed in a tuberculosis ward. The husband of petitioner was an interne. On several occasions he made sputum tests which were negative. He testified that on June 3, 1943, tests were made which for the first time showed a positive reaction, and at that time petitioner first knew that she had contracted tuberculosis. He said that prior to that time the diagnosis was probable tuberculosis, which prompted him to write a letter to the superintendent of St. Luke's Hospital. That letter was dated May 11, 1943, and set forth the claim that the tuberculosis was industrially caused and compensable. The commission took the date of May 11, 1943, as the date when petitioner had knowledge of the culmination of the injury and as the basis for its conclusion that the claim was barred.
Petitioner contends that the knowledge of culmination of the injury was not acquired until the date when the result of the test of June 3d was known, which her husband stated was June 8th.
The finding of the commission that compensability and
knowledge of the industrial injury concurred on May 11, 1943, is a finding of fact, and under the rules governing these proceedings may not be disturbed if supported by substantial evidence. Taking into consideration the fact that petitioner was a trained nurse and her husband an interne, the commission drew the inference that knowledge of the injury and of its compensable character was available to them at a time prior to the positive tests now relied upon by petitioner as fixing the time of knowledge. It may be assumed that the inference so drawn was a permissible one under all of the circumstances of the case, especially when the date of the letter to the employer is considered.
[1a] Petitioner contends, however, that even if the date of knowledge of the injury was more than six months prior to the filing of the application the evidence before the commission was such that the employer was estopped from setting up the statute of limitations as a defense. In support of this contention petitioner relies upon the following: On May 11, 1943, as above stated, the husband of petitioner advised the employer by letter of the disability of his wife. On May 17th the superintendent of the hospital replied by letter requesting information concerning the alleged contracting of the disease during the period of employment and inquiring whether there was definite evidence that the petitioner had tuberculosis and not a virus disease simulating tuberculosis, and as to what tests had been made. The tests of June 3d were made in response to that letter, and the positive result of the test was obtained on June 8th and was communicated to the employer. On August 3d the superintendent of the hospital wrote to petitioner's husband expressing a preference to settle the matter, advised him that Dr. Hill, chief of the hospital's medical service, was the man on whom they relied for advice and consultation with its insurance carrier, that Dr. Hill was on vacation for about a month, and gave the name and address of the insurance carrier. The husband thereafter had telephone conversations with the superintendent but was told that Dr. Hill was still away. In the early part of September he again communicated with the superintendent and with the insurance carrier, at which time the representative of the insurance company told him they would have to have more investigation before their portfolio on the case would be complete, requested him to return at the end of his vacation and stated that in the meantime someone from the company or the hospital would
investigate the case and interview his wife. He waited for Dr. Hill to return and visit petitioner. He testified that he "let the case ride for a while" because they had requested time in which to investigate, and that the employer had asked him to wait until Dr. Hill had seen the patient. Neither Dr. Hill nor any other representative of the employer called on the petitioner or examined her prior to filing the application for adjustment. In the latter part of September the representative of the insurance carrier asked for "more time" in which to investigate the case. Apparently, the final decision of the employer or its insurance carrier was not communicated to the petitioner. Only when her husband, as he testified, saw that they were "not getting to first base," was the application filed with the Industrial Accident Commission. The commission made no finding on the issue of estoppel and was apparently of the opinion that the lapse of five days beyond the statutory period precluded it from deciding favorably to the petitioner. But the commission had a right to consider the evidence which was favorable to the petitioner on the issue of estoppel. In fact such evidence was without substantial conflict both as to the conduct of the hospital authorities and of the representative of the insurance company.
In Farrell v. County of Placer, 23 Cal.2d 624
[145 P.2d 570, 153 A.L.R. 323], this court applied the doctrine of estoppel where the conduct of the party against whom the claim could be filed was such as to induce the claimant to delay the filing until after the expiration of the time limitation. Here, the repeated requests by the employer and the representative of the insurance carrier for "more time" to complete their medical investigation constituted conduct on which the claimant had a right to rely and which should operate as an estoppel to the plea of the statute of limitations. Where, as here, the delay in commencing action was induced by the conduct of the party sought to be charged the latter may not invoke such conduct to defeat recovery. (Laraway v. First Nat. Bank of LaVerne, 39 Cal.App.2d 718, 730 [104 P.2d 95]; Mitchell v. J.H. Roth Co.,124 Cal.App. 96, 99 [12 P.2d 91].) [2] An estoppel may arise although there was no designed fraud on the part of the person sought to be estopped. (Verdugo Canon Water Co. v. Verdugo,152 Cal. 655, 683 [93 P. 1021].) [3] To create an equitable estoppel, "it is enough if the party has been induced torefrain from using such means or
taking such action as lay in his power, by which he might have retrieved his position and saved himself from loss." (3 Pomeroy Eq. Jur. (5th ed.) § 812, p. 233.) In Adams v. California Mut.B. L. Assn., 18 Cal.2d 487 [116 P.2d 75], it was said at page 488: "It is well settled that a person by his conduct may be estopped to rely upon these defenses. (Rapp v. Rapp, 218 Cal. 505, 509 [24 P.2d 161]; Calistoga Nat. Bank v. CalistogaVineyard Co., 7 Cal.App.2d 65, 72 [46 P.2d 246]; 16 Cal.Jur. 575; 130 A.L.R. 8.) [1b] Where the delay in commencing action is induced by the conduct of the defendant it cannot be availed of by him as a defense. (Rapp v. Rapp, supra; Miles v. Bankof America N.T. S. Assn., 17 Cal.App.2d 389, 398 [62 P.2d 177].) . . ."
It follows that the employer and its insurance carrier cannot escape the consequences of their acts or conduct affirmatively engaged in to procure delay for purposes of settlement, or investigation or otherwise, upon which the employee has relied and by which he has been induced to delay the filing of a claim until after the expiration of the statutory period. Such conduct, so relied upon, becomes the basis of an estoppel against the party responsible for the delay and should, under the facts here presented, preclude the bar of the statute of limitations.
The order is annulled with directions to the commission to proceed in accordance with the foregoing views.
Gibson, C.J., Carter, J., and Schauer, J., concurred.