Document 7MXzZK03GL1rnEXprp2oq6yXg

FILE NAME: Contract Unit Workers Comp Claims (WCC) DATE: 1955 DOC#: WCC054 DOCUMENT DESCRIPTION: Workers Comp File - Swartout, John File Name Contract Unit Claim File: John Swartout Dec. 28/55 Scanned ? yes Source JMA: 1745 Start Year 1955 Stop Year 1955 Contents claim Notes WORKERS' COMPENSATION APPEALS BOARD - CALIFORNIA (INDUSTRIAL ACCIDENT COMMISSION, prior to 1966) .APPLICANT JOHN SWARTOUT(deceased) by spouse Bergit CASE # SF 169171 Asbestos I n s u l a t o r ___________ DATE CLAIM FILED December 28, 1955______ INJURY ALLEGED A s b e s t o s i s _______________________________________ ALLEGED DATE OF INJURY "Exposure over long period of time'l companies cited 1940-1955 ------ EMPLOYER/INSURER Western Asbestos Co./Mundet Cork Corp. et. al. No apparent Canadian insurer OTHER NOTES "Medical evidence without conflict: asbestosis"________ No medical reports in file Widow reopened case upon applicant's death June 6, 1956 DATE OF RESOLUTION RESOLUTION June 10, 1958 (Previous! $2,355 disability) Decision after Reconsideration $7,000 death benefit + costs for burial DOCUMENTS COPIED 1) Decision After Reconsideration # OF PAGI 4 2) Western Asbestos Co. & State Comp Ins Fund 5 Petition for Reconsideration CLAIMANT _________ J n k n S u ) a y f o u t _____________________________ _ California Workers' Compensation Appeals Board CARRIERS INVOLVED: The AETNA Casualty & Surety Co. oAmerican Automobile Ins. Co. oAmerican Employers Ins. Co. oAmerican Motorists Ins. Co. oArgonaut Ins. Co. oAssociated Indemnity Corp. oCalifornia Casualty Indemnity Exchange oCalifornia Compensation & Fire Co. oCasualty Ins. Co. of California oEmployers Liability Assurance Corp.Ltd. oEmployers Mutual Liability Ins. Co. of Wisconsin _ oFidelity & Casualty Co. of New York oFireman's Fund Ins. Co. oGeneral Accident Fire & Life Assurance Corp. Ltd. oGlobe Indemnity Co. oGuarantee Insurance Co. oGreat American Ins. Co. oHardware Mutual Casualty Co. (Sentry Ins. Co.) Industrial Indemnity Co. Industrial Indemnity Exchange olnsurance Co. of North America Liberty Mutual Ins. Co. Lumberman's Mutual Casualty Co. oMaryland Casualty Co. oMichigan Mutual Liability Co. oMission Insurance Co. oNational Automobile & Casualty Ins. Co. oNew Amsterdam Casualty Co. oOcean Accident & Guarantee Corp.Ltd. Pacific Employers Ins. Co. oPacific Indemnity Co. Reliance Ins. Co. (Standard Accident Ins. Co.) oRoyal Indemnity oSecurity Ins. Co. of Hartford (U.S. Casualty Ins. Co.) State Compensation Insurance Fund oTransport Indemnity Co. The Travelers Ins. Co. oThe United Pacific Ins. Co. oU.S. Fidelity & Guaranty Co. oZenith National Ins. Co. oZurich Ins. Co. o ________________________________________ o______________________________________________________ o ______________________________________________________________________ o______________________________________________________ o 5/81 1 ; WORKERS' COMPENSATION APPEALS BOARD 2 STATE OF CALIFORNIA 3, i 2ZHGIT A.SWARTOUT, 4 C ase S o. S I 169-1?1 5 Applicant 6 vs. > 7 MUSBET COPZ CORPORATION, et.al. SHTIFIATION 8 9 Defendant 10 11 I hereby certify that the attached documents are true 12 and correct copies of the original documents filed in the records 13 of this office in the above-entitled matter. 14 ATTEST my hand and the Seal of the Workers1 Compensation 15 Appeals Board of the State of California. le 17 18 19 [JAMS________ Workers' Compeiswtion Judge 20 Workers' Compensation Appeals Board 21 22 23 24 Bated at San Francisco, 25 California, this 3pd d7 26 of April, 1981 27 DiA WCA P<ONCMWl1.1f9> M*ATIICMT IMMWVMALMUk*OM* iVtfttftN tNftUtTKUhAtttMMt (' c ' . SacaR V ORRFOi Till' INDUSTRIAL AOCUENT CUi.MJ:.-;TcN -/} e e a j l _ _ ':rr' rn- e t a t e o.- OALit'oiiiJiA 5 ^ ; ! ^ `Sr3_ ea jE r< i. 'j -*~1 h-c^r P !N3A. ^ 1 Y - O .-Y DERGIT A. Sb'AUTQUT, Applicant, : : ' : -1' : KUNDET CORK COP.?,, HARRY A. OUT TOM, INC., DUTTON AJ8.SST03 CO.,, DUTTON . A3Bo370S 4 SUPPLY CO., '..5TERN ASBESTOS CO., BAY CITY ASBoSTOS CO., LTD., CORK INSULATION CO., INC., : WESTERN FIBER GLASS COMPANY, GENERAL : INSULATION 4 RU33ER CORPORATION, : ARMSTRONG CORK CO., JOHNS MANVILLS iT : S A L S CORPORATION, C. C. 'ADORE it CO., .* J. T. THORPE it SON, INC., K. R. Vj : CARPENTER, AETNA INSURANCE COMPANY, : STATE COMPENSATION INSURANCE FUND, 1'. : INDUSTRIAL INDEMNITY EXCHANGE, : INDUSTRIAL INDEMNITY CO!`ANY, LIBERTY IT- : MUTUAL INSURANCE COMPANY, TRAVELERS : INSURANCE C O M `ANY, STANDARD ACCIDENT . V> : ' INSURANCE COMPANY and PACIFIC EMPLOYERS : INSURANCE COMPANY, 17 : : Defendants ! * : L'liCISlUL AFTER HOC- UNJIDEKATICN i/ : : ZQ i : 2\ : : Z'- : ; < ~ : ; 1'A j Reconsideration haying been granted heroin and the matter having b:en carefully considered, including trar.-icrioi.j of the te3tlnory, as well as the record as n whole, this Cora":ission now conclnles that further proceedings are not essentia'. for the disposition of the clain and iaaJcas Isa Decision :'t*jr hec-onaideration as follows: : GOOD CAUSE APPEARING THEREFOR, Z' t IT ID ORDERED that Findings and Award filed 't . A, C ` : 175E be, and the uune is, vacated., annulled and set aside,, r,r-' / : that the following Findings and Award<be substituted in ien '.hereof and made the Decision after Reconsideration of this 7, r,,nir.3'<on ( ( yi??pi:;ns or f a s t lo John E, .-v/arcc'at, while amployed a3 an asbestos worker j in the County of ion Francisco, State of California, on January 2 10, 1955, by V.'esiirn Asbestos Company, sustained an injur/ arising ,t a.' j occurring in -.v. courts of his employment, consisting of substantial and material exposure to asbestosi3. At said time, 7 the employee's wages were maximum. 5 2. Thera may have been like exposure in other employments -- 9 both within and without the State of California. 10 3. Applicant has elected to proceed against the Western 11 Asbestos Company and its insurance carrier, the State Compensation 12 Insurance Fund, pursuant to Labor Code Section 5500.5. 13 Uo Said injury resulted in temporary total disability 12 beginning on January 11, 1955, continuing to and including June 5, 15 195b, entitling the employee to temporary total disability indem 1-3 nity at the rate of 35 a week in the total sum of 2,555 17 5. The evidence establishes that said employee failed to IS give defendants notice of nis need for medical treatment to cure 19 or relieve him from the effects of said injury. 20 6, The employes died on June 6, 195b, and the evidence 21 establishes that said deat:i was proxircately caused by the injury 22 herein. 23 7. The application for adjustment of claim was filed 22 herein within one year from tho date of said injury. 25 8. The evidence fails to establish that defendants or any 25 of them have been prejudiced by lack of notice of the claim asserted 27 25 : herein. 9. Said employee left surviving him his widow, Sergit A. 29 : Swartout, the applicant herein. 30 : 10 Applicant is tiuitled to the Statutory burial expna 31 ; 32 i of .00. . Ilo The employee Incurred expense in the sum of 35 for wartout 59-171 -;c aft Uv. 2 ( c examination and report by Dr- Allan E. Mbs required to success fully prove .is case. 12. Applicant's counsel. Smith &. Parrish, have performed services of the reasonable value ex' $500- a aad AWARD IS MADE in favor of Bergit A, Sivartout and against the State Compensation Insurance Fund of accrued temporary disa bility indemnity commencing January 11, 1955, to and including June 5 1956, at the rate of $35 a week in the total sum of $2,555, payable forthwith. AWARD IS FURTHER MADE in favor of Bergit A. Swartout and against the State Compensation Insurance Fund of a death benefit in the amount of $7,000, payable at the rate of $35 a week begin ning June 6, 1956, less $600 payable to Smith & Parrish ao attorneys' fee. AWARD IS FURTHER i-ADE in favor of Bergit A. Sviartout and against the State Compensation Insurance Fund for burial expense in the amount of $*00. AWARD 13 FURTHER MADE in favor of Bergit A. Swartouc and against the State Compensation Insurance Fund of the 3um of $35 for medical litigation costs, payable to Dr. Allan E. Moe. IT IS ORDERED that all payments herein shall bear inters; as provided by Labor Code Section 5300 INDUSTRIAL ACCIDENT COMMISSION OF THE STATE OF CALIFORNIA Sr< JUN 9 * Conn.-** BENOT A. SWARTO'J 1 |e E-4^ June 6, 1958 v. KUMDET CORK CORP., HARRY A. DUTTON, i;iC., DUTTON ASBESTOS CO., DUTTON AS3EST0S & SUPPLY CO,., WESTERN ASBESTOS CO., BAY CIlT'Y ASBESTOS CO., LTD., CORK INSSUULLAATTIIOO:N CO., INC., WESTERN FI3ER CLASS COMPANY, GENERAL INSULATION it RUBBER CORPORATION, ARMSTRONG CORK CO., JOHNS MAKVILIE SALES CORPORATION, C, C. MOOSE L CO., J. T. THORPS SON, INC., M. R. CARPENTER, AETNA INSURANCE COMPANY, STATE COMPENSATION INSURANCE FUND, INDUSTRIAL INDEMNITY EXCHANGE, INDUSTRIAL INDEMNITY COMPANY, LI3ERTY MUTUAL INSURANCE COMPANY, TRAVELERS INSURANCE COMPANY, STANDARD ACCIDENT INSURANCE COMPANY and PACIFIC EMPLOYERS INSURANCE COMPANY Case No. 169-171 REPORT OF PANEL ONE ON DECISION AFTER RECONSIDERATION The record reflects that decedent, while employed as an asbestos worker on January 10, 1955 by Western Asbestos Company sustained an injury arising out of and occurring in the course of his employment, consisting of substantial and material exposure to asbestosi3. The record further reflects that there may have been like exposures in other employments both within and without the State of California. The injury caused total temporary disability from January 11, 1955 through June 5 1956. Employse's death on June 6, 1956 was proximately caused by the injury herein, entitling applicant to death benefits. It appears from the evidence that decedent failed to give notice to defendants of his need for medical treatment. Applicant is entitled to the statutory burial expense and to medico legal expense of $35, payable to Dr. Moe. Applicant's attorneys have rendered services herein of the reason able value of $600. It is the opinion of the Panel that the claim is not barred by the statute of limitations and' that the evidence fails to establish that defendants have been prejudiced by lack of notice of the claim asserted herein. Decision after Reconsideration should issue accordingly. INDUSTRIAL ACCIDENT COMMISSION OF THE STATE OF CALIFORNIA RE^SiVSD MAR 1 51958 DipumtatsfIciuitnUR)imi EiV;:!ON Of >0U3TRlAi. ( ; , 1 BEFORE THE INDUSTRIAL ACCIDENT COMMISSION G?' THE STATS 0? CALI? CLAIM ::0. 169-171 BERGIT A. 3VART0UT, Applicant, *<# fiwij I , i.iAa 3 1338 I VS. i'JMDET CORK CORP.: HARRY A. DUTTON, INC.: DUTTON ASBESTOS CO.; DUTTON ASBESTOS e SUPPLY CO.; WESTERN ASBESTOS CO.; BAY CITY AS3SST0S CO., LTD.; CORK INSULA TION CO., INC.; WESTERN FIBER GLASS COM?k'.ri; GENERAL INSULATION It RUBBER COR PORATION; ARMSTRONG CORK CO.; JOHNS KAKVILLE SALES CORPORATION; C. C. MOORE 2 Cs CO.; J. T. THORPE k SON, INC.; M. R. CARPENTER; AETNA INSURANCE COMPANY; 3 STATE COMPENSATION INSURANCE FUND; INDUSTRIAL INDEMNITY EXCHANGE; INDUS 4 TRIAL INDEMNITY COMPANY; LIBERTY MUTUAL INSURANCE COMPANY; TRAVELERS INSURANCE 5 COMPANY; STANDARD ACCIDENT INSURANCE COMPANY, and PACIFIC EMPLOYERS INSUR 6 ANCE COMPANY, PETITION FOR RECONSIDERATION 7 Defendants. 8 9 Cocie now defendants WESTERN ASBESTOS COMPANY and STATE 10 COMPENSATION INSURANCE FUND and petition the Industrial Accident 11 Commission for a Reconsideration in the above entitled matter 12 upon the following grounds: 13 1. That the Industrial Accident Commission acted withe 14 end in excess of its powers. 15 2. Thet the evidence does not justify the Findings of 16 Fact. 17 3. That the Findings of Fact do not support the award. 18 The evidence in the above entitled natter shows that th 19 deceased employee, John E. Swartout, filed an application 'with r. 20 Industrie.! Accident Cocmiasien o.-. oeew3*- ;-r=w, *553 surg i n g 21 Usability due to acbootocis which he had incurred during an en.pc { . ,. 22 cv.'.' o _ong period of thee wording ior various employers, mc-ac. 23 24 25 26 ( ( 1 the Huriiet Co.k Corp., Harry A. Dutton, Inc., Dutton Asbestos Co., Outtor. Asbestos & Supply Co., Western Asbestos Co., Bay City Asbestos Co., Ltd., Cork Insulation Co., Inc., Western Fi Glass Company, General Insulation k Rubber Corporation, Armsin Cork Co., Jo.-ir.s Manvilie Sales Corporation, C. C. Moore & Co., J. T. Thorpe k Son, Inc., .M. R. Caprenter. John S. Swartout died on May 30th, 1956 prior to a hearing on his claim before the Industrial Accident Commission ' his widow, Bergit A. Swartout filed an application with, the Industrial Accident Commission on June 13th, 1956, alleging that the death of the deceased ties due to his employment a3 an asbest worker for the above employers. 2 133 Hearings were held on the claim of Bergit A. Swartout i 14 I before Referee Roy 0. Purvis at Oakland, California on August 1=-. 4 J15 1956 and Herbert J. Williamson on December 6th, 1956. 5 i j 16 At the hearing before Referee Roy 0. Purvis on August 1 6 17 I lypu, the applicant elected to proceed against the 'Western Asbest. 7 18 Company and its insurance carrier, the State Compensation Insurant 8 19 Fund. 9 j 20 On March 4th, 195s Referee Roy 0. Purvis Issued Findings 10 21 ! and Award in.the above entitled matter and found that the deceased 11 22 5 employee, John E. Swartout sustained an injury arising out of and 12 23 ` in the course of his employment consisting of asbestosis and award 24 ; the applicant, Bergit A. Swartout temporary disability indemnity 25 commencing January 11th, 1935 to and including June 5th, 1956 at 26 j!the rate of $35.00 e week in tr.e total sum of $2,555.00 and also 27 I awarded a death benefit ir. the amount of $7 ,000.00 payable at the 28 Irate of C..CO a week beginning June 5th, 1956. 29 | In his report or. tr.3 decision ir. question, which is 30 'jattujr.;^ to tnc FIndir.uS t-nd ..ward, i' si' q*-ee Roy 0 . Purvis states 31 !! 32 II fO-iowa; ( ( X ''Applicant is the widow of an employee who died of pneumoconiosis (s3best03is) ar.i claims accrued 2 compensation for temporary disability and a daatr. benefit, 3 There were no admitted facts and ail appearing 4 defendants raised the additional issue*of Statute of Limitations, prejudiced by reason of lac.-: of 5 notice and Juriseictio.-. of the Comm.ssion. 6 The record disclosed that, the employee died on May 10th, 1955 and the medical evidence is without 7 conflict that his death was due to asbestoses. 8 The employee filed the original-application for adjustment of claim on December 2*0tn, 1955. The 8 evidence in the record is that he first became disabled as the result of as'oestosis on January 10 10th, 1955 and that date was the first on v.hich he knew he had the'pulmonary disease. 11 That date must be taker, as the date of injyry. 12 The application was filed well within a year from tha date of injury and therefore the claim is not 13 barred by the Statute of Limitations. Applicant may recover both accrued temporary total disability and from the death benefit."' 15 Defendants agree that the applicant, Bergit A. Swartout 16 is entitled to receive the accrued temporary disability indemnity 17 which was awarded to her by the Bindings and Award in questinn. 18 y However, defendants respectfully submit that the claim 19 for the- death benefit is barred by the Statute of Limitations. 20 In support of this contention, that the claim for the 21 death benefit is barred by the Statute of Limitations, the 22 defendants cite the Lav; of Employee Injuries and Workmen1s 23 I Compensation by Warren L. Karins, Volume 2 pg. 1-9 which reads 4 as follows: 25 "Death claims must be filed within one year fx'om the date of death, e.wcept that if death 26 occurs more then or.s year after the date of injury the claim must also be filed within 27 one year from the last furnishing of com pensation benefits. If such benefits are 28 r.ot furnished, ana death occurs more than one year after the injury, death benefits 29 ore not ps;ab_3 oven though the affect of applying the limitation statute is,.to bar 30 widow's elai.'. t o t occrua-a.' 31 Defendants aloe cite t;r- a';sc ex' j-.ssiJ m. Packer * 32 vs. Indus'trial Accident Co i.iiscicn of the Gtat~ -f Ca 1 iferr.is / ( \ 1 ,j and Douglas Air craft Company, Inc. wr.ich is reported ir. Volume 2 !l 1- Californio Compensation Cases et pg. 3. V:Tondents also aloe she case of Adeline Blanco vs. 4 Industrial Acclaeat Commission of the State of California '.:hich 5 ! is reported ir. Volume -) California Compensation Cases at pg. 206. 6 >.s tr.e aoove cases hols the claim for the death benefit 7 8 JI is a separate and for compensation. independent right from the employee's claim 9 I The evidence ir. this case shows that no benefits were.. 1 furnished to either the deceased employee during his lifetime 11 or to the widow, Bergit A. Swartout by the employer, V e s t e m 12 11 Asbestos Company and the State Compensation Insurance Fund or any 13 el.i. The evidence also shows that no benefits were ever promise 14 by the defendants to either the deceased employee or the widow, 15 Eergit A. Swartout. 16 As the evidence shows that the death of the deceased 17 employee occurred more than one year after the date of injury and 18 tnat no benefits were furnished, the claim for the death benefit 19 clearly barred by the Statues of Limitations and the Petition 20 for Reconsideration should be granted by your honorable Commissio 21 and the Findings and Award corrected. 22 Respectfully submitted, 23 24 25 26 Dated at San Francisco, California this 13th day of March, 1953. 27 c - Eergit 2. Swartout 28 3000 Marrywood Drive Sacramento 21, California 29 c - Smith & Parrish 30 Attorneys at Law yCl Financial Center Eidm. 31 Oakland, California 32 c - Ola ir3 Deportment RECEIVED MAR 1 S 1958 Deiancwst of WmeiJ R!*** 3. ..V rn itiirjjr*1/-- ants ::j c s 1 STATS OP CALIFORNIA ss. CITY & COUNTY 0? SAN FRANCISCO R. A. YOUNG, being first duly sworn, deposes and says: That he is an officer, toviit, Assistant General Manager of State Compensation Insurance Fund; that he h2 S read the foregoing Petition for Reconsideration and knows the contents thereof; that the same is true of his own knowledge except the matters which are therein stated on information or belief, and as to thos 2 matters be believes it to be true. 3 4 5 6 7 8 9 10 Notary Public in and for the 11 CStiattyeanodf CCoaulinftoyrnoifaSan Francisco, 12 MyCo?Eniif5i'n,T?T",rw7V'.?7,7M5. 13 RECEIVED 14 MAR 131953 15 Ca!.TMsi d WaiuU RUScc DIVISION O f INDUS f WAS. ACCIDENTS 16 17 18 19 20 21 22 23 24 25 26