Document ZnOG0Bm2BOmwXO1y11y0b89DO
FILE NAME Manville JMA
DATE 1955 DOC JMA141 DOCUMENT DESCRIPTION Contract Unit Claim File - John Swartout
WORKERS COMPENSATION APPEALS BOARD - CALIFORNIA
INDUSTRIAL ACCIDENT COMMISSION prior to 1966
APPLICANT
JOHN SWARTOUT by spouse Bergit
Asbestos Insulator
CASE SF 169171
DATE CLAIM FILED
December 28 1955
INJURY ALLEGED
Asbestosis
ALLEGED DATE OF INJURY
Exposure over long period of time cited 1940-1955
companies
EMPLOYER . 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 Decision
1958
Previous
after Reconsideration
2,355
disability
7,000 death benefit + costs for burial
DOCUMENTS COPIED
1 Decision After Reconsideration
# OF
PAGI
2 Western Asbestos Co. & State Comp Ins Fund
5
Petition for Reconsideration
CLAIMANT
John Swartout
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
Employers Liability Assurance Corp.Ltd Corp.Ltd
Employers 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 Industrial Indemnity Co. Industrial Indemnity Exchange oInsurance Co. of North America Liberty Mutual Ins Co.
OLumberman's Mutual Casualty Co.
oMaryland Casualty Co.
Ins
;
Co.
Michigan Mutual Liability Co.
Mission Insurance Co.
oNational Automobile & Casualty Ins Co. New Amsterdam Casualty Co.
oOcean Accident & Guarantee Corp.Ltd 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. 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.
Casualty
Ins
|
Co.
oZurich Ins Co.
o0oa
36
5/81
mmf
I
WORKERS COMPENSATION APPEALS BOARD
2
STATE OF CALIFORNIA
M
BERGIT A.SWARTOUT
F&F
| CASE No. SF 169-171
5
Applicant
6
VS.
7 MUNDET CORE CORPORATION et.al.
CERTIFICATION
CERTIFICATION
8
o
Defendant
}
F^ I hereby certify that the attached documents are true and correct copies of the original documents filed in the records
13
of this office in the entitled matter
ATTEST my hand and the Seal of the Workers Compensation
15 Appeals Board of the State of California
19 Compensation Workers
Judge
Appeals Board
21
N
Dated at San Francisco
F^California this of April 1981
3rd
day
DIA WEAB FORM 115 NEW 78
T ear ear
DEPARTMENT OF INDUSTRIAL RELATIONS OF
fiVEDENFOR VEDENFOR THE INDUSTRIAL
EEA
O2 782 STATE OF
ACCIDENT COMMISSION CALIFORNIA
JUN
JUN
10
1953 1953
CASE
CASE
RO
Late Th
BERGIT BERGIT
BERGIT A.
;
SWARTOUT
Applicant
.
ve
DECISION DECISION
HUNDET CORK CORP HARRY A. DUTTON
INC
DUTTON
TOS
ASBESTOS
CO
DUTTON
AGB TOS& SUPPLY CO WESTERN
ASBASBESTOSESTOS CO DAY CITY ASBESTOS
ne LTD CORK INSULATION
CO
WESTERN FIBER GLASS COMCPO ANYINGECNERAL
INSULATION & RUBBER CORPORATION
AFTER RECONSIDERATION
JOHNS MANVILLE
ARMSTRONG CORPORATION CORPORATION EPARTMN SALS CORPORATION C. C. MOORE & CO
J. T.
CARPENTER
THORPE
&
SON
INC M.
R.
CARPENTER AETNA INSURANCE COMPANY
| STATE COMPENSATION INSURANCE FUND
INDUSTRIAL INDEMNITY EXCHANGE
INDUSTRIAL INDEMNITY COMPANY LIBERTY
MUTUAL INSURANCE COMPANY TRAVELERS
INSURANCE COMPANY COMPANY STANDARD ACCIDENT
EPARTMENT
EDITISION_OF_IN_UU STA STAJAL
FILED FILED
)
JUN 10 10 1058
H
Per
IINNSSUURRAANNCCEE CCOOMMPPAANNYY and PACIFIC EMPLOYERS EMPLOYERS
11 11
Defendants
re
20
Reconsideration having been granted herein and the
21 21
matter having been carefully considered including trannerious
of the testimony as well as the record as a whole this Comis
sion now concludes that further proceedings are not essential
for the disposition of the claim and makes its Decision after
Reconsideration as follows
GOOD CAUSE APPEARING THEREFOR
1958
be
IT IS and the
ORDERED that Findings and Award filed Maron 4
same is vacated annulled and set aside and
that the following Findings and Award
be substituted in lied
thereof and made the Decision after Reconsideration of this
teem
ee
1
ve
ww
FINDINGS OF FACT
2
we
1. John E. Swarcout while employed as an asbestos worker
3 so. in the County of San Francisco State of
08
California on January
L t0e6 1 10 0 , 11955 955 by Western Asbestos Company sustained an injury arising
employment course of his the
course
his
employment
the
consisting consisting
consisting
consisting
of substantial and material exposure to asbestosis At said time
7 : the employee's wages were maximum
8 :
20 There may have been like exposure in other employments
|
9
both within and without the State of California
10
11 :
12
3 Applicant has Asbestos Company and its Insurance Fund pursuant
elected to proceed against the Western
insurance carrier the State Compensation to Labor Code Section 5500.5
13 4. Said injury resulted in temporary total disability
: 14 beginning on January 11 1955 continuing to and including June 5 15 :: 1956 entitling the employee to temporary total disability indem-
16 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
13 : give defendants notice of his need for medical treatment to cure
19 ; or relieve him from the effects of said injury
NNE ;
5. The employee died on June 6 1956 and the evidence
NNE :
22
establishes that said death was proximately caused by the injury
herein
23 :
24
25 : 26 :
N
7. The application for adjustment of claim was filed herein within one year from the date of said injury
8. The evidence fails to establish that defendants or any of them have been prejudiced by lack of notice of the claim asserted
herein
28 ; N ;
2.
Swartout
Said exployes left surviving him his the applicant herein
widow
Sergit A.
30
31 :
32
Wartout
59-171
10. Applicant is entitled to the statutory burial expense of 430
t
11. The employee incurred expense in the sun of 35 for
examination and fully prove his
report by Dr.
case case
Allan
E. Moe requiretdo success-
12
Applicant's counsel Smith &
Parrish have performed
services of the reasonable value of 500
:
i
AWARD
; 6
AWARD IS MADE in favor
of Bergit A. Swartout and
against
: 7 the State Compensation Insurance Fund of accrued temporary
: disa- bility indemnity commencing January 11 1955 to and
: including 9
June 5 1956 at the rate of
35 | @ week in the total sun of
: 10
2,555 payable forthwith
: 11
AWARD IS FURTHER MADE in
favor of Bergit A. Swartout and
: 12 against the State Compensation Insurance Fund of a death benefit
; 13
in the amount of 7,000 payable at
the rate of 35 a week begin-
; 14 ningJune 6 1956 less 600 payable to Smith & Parrish as
: 15
attorneys fee
; 16 AWARD IS FURTHER MADE in favor of Bergit A. Swartout and
17 ; against the State Compensation Insurance Fund
for burial expense
: 18
in the amount of 400
19 : 20 : 21 ; 22 j
23 .
AWARD IS FURTHER MADE in favor of Bergit A. Swartout and
against the for medical
State Compensation
litigation costs
Insurance payable to
Fund of the sum of Dr. Allan E. Moe
35
IT IS ORDERED that all payments herein shall bear interest
as provided by Labor Code Section 00
24
:
25 3
26 |
e:
INDUSTRIAL INDUSTRIAL
ACCIDENT COMMISSION
OF THE STATE OF CALIFORNIA
---- ---- -- --------,------ -- -- ----,--
a
JUN 9-1989 9-1989
BERGIT A. SWARTOUT
|
EE EE
SERVED
' - ;
|
JUN
|
ERAINSAYFAINSAIYNSFAYAFA
June 6 1958
ve
CO MUNDET CORK CORP HARRY A. DUTTON
INC DUTTON ASBESTOS CO DUTTON ASBESTOS & SUPPLY CO WESTERN ASBESTOS CO BAY CITY ASBESTOS CO LTD CORK INSULATION CO INC WESTERN FIBER GLASS COMPANY GENERAL
INSULATION & RUBBER CORPORATION
ARMSTRONG CORK CO JOHNS MANVILLE
SALES CORPORATION C C. MOORE & CO J. T. THORPE &SON INC M. R.
CARPENTER AETNA INSURANCE COMPANY
STATE COMPENSATION INSURANCE FUND INDUSTRIAL INDEMNITY EXCHANGE INDUSTRIAL INDERNITY COMPANY LIBERTY 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
injury arising out of and occurring in the course of his
an
consisting of substantial and material
employment
record
further
reflects
that
there
may
exposure to have been
asbestosis
The
other
employments
both
within
and
without
the
like State
exposures
in
of California
The injury caused total temporary disability from January 11 1955
through June 5 1956. Employee's death on June 6 1956 was proxi-
mately caused by the injury herein entitling applicant to death
benefits
It appears from the evidence that decedent failed to
defendants of his need for medical treatment
give
.
Applicant is entitled to the statutory burial expense and
legal expense of 35 payable to Dr. Moe
notice to to medico-
aAbplpelicvaanltu'esoaftt6o0 rn0 eys have rendered services herein of the reason-
It is the opinion of the Panel that the claim is not barred
statute of limitations and that the evidence fails to
by the
defendants
have
been
prejudiced
by
lack
of notice
of
establish the claim
that
asserted herein
Decision after Reconsideration should issue accordingly
INDUSTRIAL ACCIDENT COMMISSIO OF THE STATE OF CALIFORNIA
RECEIVED RECEIVED
MAR 16 1958
(
-
.
21 BEFORE THE INDUSTRIAL ACCIDENT COMMISSION OF THE STATE OF
CLAIN NO 169 171 3
&
5
ETROIT
SWARTOUT
ry INCAISTIRAL
FILED
1
FILED
6
7 8
9
1100
11
12 13 14 15
16
Applicant
vs. |
|
Batn MUNDET CORK CORP HARRY A. DUTTON INC
CO DUSTON ASBESTOS
DUTTON ASBESTOS &
ASBESTOS SUPPLY CO WESTERN ASBESTOS CO BAY
CITY ASBESTOS CO LTD CORK INSULA
.; TION CO INC WESTERN FIBER GLASS COM-
PANY GENERAL INSULATION & RUEBER COR-
PORATION ARMSTRONG CORK CO JOHNS
MANVILLE SALES CORPORATION C. C. MOORE
& CO J. T. THORPE & SON INC M. R.
CARPENTER
STATE
AETNA
INSURANCE
COMPANY ;
COMPENSATION INSURANCE FUND
INDUSTRIAL INDEMNITY EXCHANGE INDUS-
TRIAL INDEMNITY COMPANY ; LIBERTY MUTUAL
INSURANCE COMPANY TRAVELERS INSURANCE
COMPANY STANDARD ACCIDENT INSURANCE
COMPANY and PACIFIC EMPLOYERS INSUR-
ANCE COMPANY
t
;
;
;
en.
PETITION FOR
RECONSIDERATION
17
Defendants
18
19
Come now defendants WESTERN ASBESTOS COMPANY and STARE
COMPENSATION INSURANCE FUND and petition the Industrial Accident
Commission for a Reconsideration in the above entitled matter
upon the following grounds
1. That the Industrial Accident Commission acted witho
and in excess of its powers
Fact
2. That the evidence does not justify the Findings of
32
3. That the Findings of Fact do not support the award
The evidence in the above entitled matter shows that th
dccessed employee John E. Suartout filed an application with t Industrial Accident Commission on December 10th 1955 alleging sebility due to asbestosis which he had incurred during an exp OVES a long period of time working for various employers includi
DP yp
the Mursge COs Cox ta Harry Dutton
Inc. Dutton Asbestos Asbestos
3
BO
6
7
9 22 22 ; 23
Dutton Asbestos Asbestos Cork Insulation
Bay Zay
Asbestos Asbestos Genera)
Insulation Inc. Western Fi Fi
Glass
Insulation Rubber Corporation
Company General Manville
Armstri Armstrr
Corporation Corporation Corporation
Cork Co. Johns & Inc. M. R. Caprenter
C. Moore Moore Co. Co.,
Caprenter
asbest the John Swartout Swartout
_
hearing
on May 30th 1956 prior
on his claim before
prion toa
hearing
widow Bergit Swartout
Industrial Industrial Commission
Swartout an application
Industrial Accident
application alleging that
Industrial death of the
Commission June 13th 1956 as
deceased due to his employment
that
worker for the
employment 43 an
above employers
easbest
1956 Hearings were held
1 before Referee
the claim claim California California August
Roy O. Purvis Oakland
15t
15
1365 and
December 1956
Herbert J. Williamson
On Aususe 1st
16 At
on Referee Purvis on
the hearing before
17
the applicant
proceed against the Western Asbest Asbest ]
elected to
18 Company and its insurance
the
Compensation Compensation Insuranc Insuranc
19 Fund
Carrier, the State
Compensation
Insusan,
20 21 22 23 24 25 26 27 28 29 30
On March 4th entitled matter
and Award in the
and found that the
above sustained
and
eN mployee John
sustained injury arising arising out
E, employment employment
award
consisting consisting
N in course of Bergit
Swartout
of asbestosis oue indemnity
and
24 applicant January 11th 1955temporary disability disability 1956 at
se commencing 15.00 15.00 in the
including June also
total
26 the of death benefit benefit in the
sum 2,555.00 payable at the
2
2 aworded 3 &
amount of 7,000.00 payable
15.00 week beginning beginning
and also
2 of
June 5th 1956
15.00 Sie
his report decision
which is the
decision in
atterned the Findings Findings and
333
Award zy
33a3 pe
sie
follows
folfloollwosws
Gkestion, which is
$1
32
esbestosis "ApAplicpant plicant is widow of an employee
widow
who died
pneumoconiosis esbestosis
claims accrued
compensation
esbestosis disability death
_
accrued
accrued death aasen
Limitations There were admitted admitted
were
and all appearing
defendants
admitted
additional
additional
Statute
of
prejudiced reason of
Statute Statute
Limitations Limitations jurisdiction jurisdiction the Commission
lack of of
Commission
The record
record
disclosed the employee record disclosed medical medical evideemnpcleoyweitheout without May Hay
1956 and death death due to asbestosis
asbestosis
asbestosis
The employee filed original
employee filed claim
original application fox
adjustment of the recorDecedmber December first became Thre
disabled the the result that he first January January
disabled
1955 and that
asbestosis asbestosis which
date
which
10th knew he had pulmonary
the disease on on which
pulmonary disease
.
That date must taken
The application
taken well within within year
the date of
was filed therefore claim from
injury and Limitations . claim is not
Applicant
barred by the Statute Limitations
Applicant disability
may recover both accrued temporary disability
and
from
the
death
temporary
benefit
total
disability
question Defendants agree that the
is entitled
temporary disability in4demnity indemnity
to receive the
accrued temporary
question
question question . vy
Workmen's However for the death In death benefit
by the Findings ang submit that claim
defendants
T2spectfulle Statute
of
benefit is barred contention the that the
Limitations Limitations .
claim
support of this
Statute
is barred by ths Employee Injuries
Limitations
Limitations
the fon che
defendants cite Compensation Compensation
Workmen's
the Law of Henna Volume 349 which Warren L, Henne, Volume 2 pz. 559 whieh reeds
occurs from the of death year
occurs occurs more than must
after date of
injury the claim must
also filed within within
one year from
furnishing furnishing furnishing com- of
pensation pensation pensation benefitsbenaefnid tsdeath If such boccurs enefits are
hot furnished
one year payable
more than
injuly injuly benefits benefits
are not payable limitation even though
applying applying
limitation statute
widow's
a
ba efore before occrued
& Defendants
VESSon ofse
cite the se
Industrial
Tncaustetesd Atoidgene
Colton of :
Co atlecten of tac
State
Stee:
~.,
.
2 and Dougles Aircraft Company Inc. which is reported in Volume
DeDfenedantfs Defeendants ndantDefendasnts
Industrial
Industrial
Industrial
Industrial
Accident Accident
Accident
Accident
also
also
also
cite
cite
the
case
of
of
Adelina
Adelina
Bianco
Bianco
Commission Comision
Commission
ofof the
State
State
of
of
California
California
vs.
which which
which
10
pg 206
10
claim for the death benefit
SN is a separate and independent right from the employee's claim
@
for compensation
o The evidence in this case shows that no benefits were
10 furnished to either the deceased employee during his lifetime
.11 or to the widow Bergit A. Swartout by the employer employer Western
12 | Asbestos Asbestos Company and the State
Compensation Insurance Fund or
any
13
s+. The evidence also shows that
no benefits were ever promise
14 the defendants to either the deceased employee or the widow
15
A.
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 fulnished the claim
for the death benefit :
19 clearly barred by the Statute of Limitations and the Petition
20 for Reconsideration should be granted by your honorable Commissier
21 and the Findings and Award corrected
22
Respectfully submitted
23
24
25
RECEIVED 26 at San Francisco California RECEIVED
13th day of March 1953
RECEIVEDRECEIVED
27
CG - Bergit E. Swartout
28
3000 Marrywood Drive
29
Sacramento 21 California
- Smith & Parrish
MAR 18 18 1958
Department
of ledastrid Relations
CIMEN ON INDUSTRIAL INDUSTRIAL
ho mice
30
Attorneys at Law
31 Oakland O50a1 klFainndancCiaalliforCnonitaer Eldg
32
Claims Department
ey
JC /
1 STATE OF CALIFORNIA
N CITY& COUNTY OF SAN FRANCISCO
SS
a
says ' R. A. YOUNG being first duly sworn deposes and
7 That he is an
officer towit Assistant General Manager of State
9 Compensation Petition
thereof that the
Insurance Fund for Reconsideration
same is true of his
that he has read the foregoing
and knows the contents ;
own knowledge except the matters
are 11
which
therein stated on information
2
or belief and as to thos
113 3matters be believes it to be true
16
17
sworn 18 Subscribed and
sworn to before me
this 13th day of March 1958
22
the Notary Public in and for
State of City and County of San Francisco California
Ny Commission Funime Tos 27 2018
;
RECEIVED
MAR 1 & 1959
Department Department of Industrial Relation
OF INDUSTRIAL
ACCIDENTS
23MJC
~e,
MJC
11