Document aE4dgr0vYv7gZOQERpe2K4py

FILE NAME Mundet Cork MCK DATE 1955 DOC MCK140 DOCUMENT DESCRIPTION WC Claim of Swartout Pt 4 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 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 Companies cited 1940-1955 EMPLOYER _ Western Asbestos Co./Mundet Cork Corp. et al No apparent Canadian insurer c 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 Decision after Reconsideration 2,355 disability 7,000 death benefit + costs for burial - DOCUMENTS COPIED 1 Decision After Reconsideration # OF PAGI 4 2 Western Asbestos Co. & State Comp Ins Fund 50 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. American Motorists Ins Co. oArgonaut Ins Co. oAssociated Indemnity Corp. oCalifornia Casualty Indemnity Exchange California Compensation & Fire Co. oCasualty Ins Co. of California oEmployers Liability Assurance Corp.Ltd oEmployers Mutual Liability Ins Co. of Wisconsin ae oFidelity & Casualty Co. of New York oFireman's Fund Ins Co. oGeneral Accident Fire & oGlobe Indemnity Co. oGuarantee Insurance Co. Life AssuranCocrpe. Ltd. oGreat American Ins Co. oHardware Mutual Casualty Co. Sentry Industrial Indemnity Co. Exchange Industrial Indemnity Exchange oInsurance Co. of North America Ins Co. Liberty Mutual Ins Co. oLumberman's Mutual Casualty oMaryland Casualty Co. Co. oMichigan Mutual Liability Co. oMission Insurance Co. oNational Automobile & Casualty Ins Co. ONew Amsterdam Casualty Co. oOcean Accident & Guarantee Corp. Pacific Employers Ins Co. oPacific Indemnity Reliance Ins Co. Co. Standard Accident Ins Co. Co. oRoyal Indemnity oSecurity Ins Co. of Hartford U.S. Casualty Ins State Compensation Insurance Fund oTransport Indemnity Co. The Travelers Ins Co. Co. oThe United Pacific Ins Co. oU.S. Fidelity & Guaranty Co. oZenith National Ins Co. oZurich Ins Co. eo08Nd 36 5/81 i i 1 WORKERS COMPENSATION APPEALS BOARD STATE OF CALIFORNIA : BERGIT A.SWARTOUT CASE No. SF 169-171 Applicant @ } CORPORATION 7 MUNDET CORZ CORPORATION et.al. CERTIFICATION @ 10 Defendant 22F6 22F6 I hereby certify that the attached documents are true 22F6 and correct copies of the original documents filed in the records 13 of this office in the entitled matter 14 ATTEST my hand and the Seal of the Workers Compensatior 15 Appeals Board of the State of California 16 17 18 19 Compensation 2 Workers Compensation Compensation Judge Workers Appeals Board 2 22 22 24 Dated at San Francisco N California this 3rd day N of April 1981 27 DIA WEAS FORM 119 W % v woOu OP DEPARTMENT OF INDUSTRIAL RELATIONS OF H . RVED L. RVED BEFORE | RVED BEFORE tot and t Yo, 4 ta JUN JUN JUN fo EEA 101953 101953 101953 : tise BEFORE THE INDUSTRIAL THE INDUSTRIAL INDUSTRIAL OP NIG STATE OF ACCIDENT ACCIDENT ACCIDENT ACCIDENT COLMIS~ON COLMISS~ ON COLMISS~ ON COLMISS~ ON CALIFORNIA SADE : : SADE RN ima th | | nenk INSIANSA4 4 j BERGIT A. SWARTOUT oe tent Applicant 900 : 10 2 A 13 AA 3 A A Ve TOS MUNDET CORK CORP HARRY A. DUTTON INC DUTTON AGBESTOS CO DUTTON TOS& SUPPLY CO WESTERN ASBESTOS ASBESTOS CO BAY CITY ASBESTOS ASBESTOS CO LTD CORK INSULATION CO INC WESTERN PIBER GLASS COMPANY GENERAL INSULATION & RUBBER CORPORATION ee age DECISION DECISION get AFTER RECONSIDERATION Ree : tee ree eset ee ne ee MANVIL&LE ASRAMLSSTROCNOGRCPOORRK ACTORPOIRATIOON NJOHNSMOORE C. CO See JO CEPARTMENT_of_14-18151 2513 CARPENTER ARTRA INSURANCE COMPANY DITISIGH_RF_IN_W415 SITNADTUESTRCIOAMLPENISNADTEIMONNITYINSEUXRCAHNACNEGEFUND ee INDUSTRIAL INDEMNITY COMPANY, LIBERTY ee KUTUAL INSURANCE COMPANY TRAVELING See INSURANCE COMPANY STANDARD ACCIDENT ACCIDENT PerPer INSURANCE COMPANY and PACIFIC EMPLOYERS EMPLOYERS d INSURANCE COMPANY } FILED FILED JUN 11 558 THN Ph PCOe O Rerees es me eee ( } Defendants ) } i 20 Reconsideration having been granted herein and the 21 matter having been carefully considered including trimmerion.3 of the testimony as well as the record as a whole this Comsko- sion now concludes that further proceedings are not essential for the diaposition of the claim and makes its Decision illus Reconsideration as follows GOOD CAUSE APPEARING TH^ REFOR 24242 24242 : 24242 : : 1958 that be the IT IS and the ORDERED that Findings and Award filed Kajo i, same is vacated annulled and set aside her following Findings and Awardybe Awardybe substituted in 1120 thereof and made the Decision after Reconsideration of unig C. mission tore ee we 2 ae te 1. John E. Swartout while employed as an asbestos worker 3 ar ha , r ae 6 es in the County of San Francisco State of California on January 10 1955 by Western Asbestos Company sustained an injury arising occurring occurring in tal course of his employment consisting of substantial and material exposure to asbestosis At said time oe the employee's wages were maximum oe 00 we 60 2. There may have been like exposure in other employments 6 0& both within and without the State of California 06 +osO, 3 Applicant has elected to proceed against the Western :: Asbestos Company and its insurance carrier the State Compensation :: Insurance Fund pursuant to Labor Code Section 5500.5 : 4. Said injury resulted in be temporary total disability ::: :: beginning on January 11 1955 continuing to and including June 5 151956 oe 151956 entitling the employee to temporary total disability indem- : be nity at the rate of 35 a week in the total sum of 2,555 O:F 5. The evidence establishes that said employee failed to ,, ::," give defendants notice of his need for medical treatment to cure : or relieve him from the effects of said injury we 0000 5. The employes died on June 6 1956 and the evidence : OF establishes that said deat was proximately caused by the injury Be herein 08 Oo 7. The application for adjustment of claim was filed 08 Ge herein within one year from the date of said injury m8 :Be 8. The cvidence fails to establish that defendants or any -b of them have been prejudiced by lack of notice of the claim asserted : herein 6% w:e 2. Said exployes left surviving him his widow Sergit A. : se 30 30 we Ct 31 oe 32 : 08 Wartout + 37-171 ae aft Rad Swartout the applicant herein 10. Applicant is entitled to the statutory burial expens s a 11. The exployes incurred expense in the sum of 35 for examination and fully prove his report case by Dr. Allan E. Moe requiretdo success- 12 Applicant's counsel Smith & i Parrish have performed = services of the reasonable value of 500 : AWARD 7 AWARD IS MADE in favor of Bergit A. Swartout and against the State Compensation Insurance Fund of accrued temporary disa- r 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 ning June 6 1956 less 600 payable to rate of Smith & 35 a week Parrish as begin- attorneys fee AWARD IS FURTHER MADE in favor of Bergit A. Swartout and against the State Compensation Compensation in the amount of 400 Insurance Fund for burial expense AWARD IS FURTHER MADE in favor of Bergit A. Swartout and against the for medical State Compensation Insurance litigation costs 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 5800 INDUSTRIAL ACCIDENT COMMISSIO OF THE STATE OF CALIFORNIA see ) JUN 9-18 9-18 Ne : for for Dean ConstrueCoenstrrueer Vas oe .. emomenee . BERGIT A. SWARTOUT EE EE = ~ ERA " ERA" SERVED -ene cow t ' ' emrne Am STURT INS INS INSi" June 6 1958 ve MUNDET CORK CORP HARRY A. DUTTON INC DUTTON ASBESTOS CO DUTTON ASBESTOS & SUPPLY CO WE TERN 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 & J. THORPE & SON CO INC M. R. CARPENTER AETNA INSURANCE COMPANY STATE COMPENSATION INSURANCE FUND INDUSTRIAL INDEMNITY EXCHANGE INDUSTRIAL INDERNITY COMPANY LIBERTY MUTUAL INSURANCE COMPANY TRAVELERS INSURANCE COMPANY STAND^ RDACCIDENT 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 worker on January 10 1955 by Western Asbestos asbestos injury arising out of and occurring in the Company sustained course of his an consisting of substantial and material employment record further reflects that there may exposure to asbestosis have been like The other employments both within and without the State ofeCxpaolsiufroersniian proxi- The injury caused total temporary disability from January 11 1955 through June 5 1956. Employee's death on June 6 1956 was bmaetneelfyitcsaused by the injury herein entitling applicant to death 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'esoaftt6o0rn0eys 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 by the defendants have been prejudiced by lack of notice oftotheestcalblaiismh that asserted herein Decision after Reconsideration should issue accordingly INDUSTRIAL ACCIDENT COMMISSION OF THE STATE OF CALIFORNIA RECEIVED RECEIVED MAR 1 6 1958 ( - 1 BEFORE THE INDUSTRIAL ACCIDENT COPETISSION OF THE STATE OF CALIF 2 CLAIN NO 159-171 3 BF 5 8 7 g 1010 12 12 13 1414 15 16 ZERGIT ZERGIT A. SUNATOUT SUNATOUT Applicant HUNDET CORK CORP HARRY A. DUTTON INC DUTTON ASBESTOS CO DUTTON ASBESTOS & SUPPLY CO WESTERN ASBESTOS CO BAY CITY ASBESTOS CO LTD CORK INSULA- .; FION CO INC WESTERN FIBER GLASS COM- PANY GENERAL INSULATION & RUBBER COR- PORATION ARMSTRONG CORK CO JOHNS MANVILLE SALES CORPORATION C. C. MOORE 00 J. T. THORPE & SON INC A. CARPENTER SIATE AETNA INSURANCE COMPANY ; COMPENSATION INSURANCE FUND INDUSTRIAL INDEMNITY EXCHANGE INDUS- TRIAL INDESITY COMPANY ; LIBERTY MUTUAL INSURANCE COMPANY TRAVELERS INSURANCE COMPANY STANDARD ACCIDENT INSURANCE PACIFIC EMPLOYERS INSUR- COMPANY COMPANY COMPANY ANCE COMPANY DEPGIATREGTEMNEONOFTF INIDNUDSUTSRTIRAILAL SELATIGR SELATIGR - FILED | , MAR 1958 | { i f PETITION FOR RECONSIDERATION RECONSIDERATION 282 Defendants Come now defendants WESTERN ASBESTOS COMPANY and STACE STACE 282 COMPENSATION INSURANCE FUND and petition the Industrial Accident Commission for a Reconsideration in the above entitled matter upon the following grounds 22 1. That the Industrial Accident Commission acted witho 24 and in excess of its powers 25 26 Fact 2 That the evidence does not justify the Findings of 27 5. That the Pindings of Fact do not support the award 28 The evidence in the above entitled matter shows that th 29 uccessed employes John E. Swartout filed an application with t 30 Inqustall Accident Comission on December joch 1933 8lleging 31 dus to obectools which he had incurred during an ang 32 Ove a long period of time working for various employers includ tee Murset TolK Corp. A. Dutton Inc. Muriet Co.k Corp. & Co. Western Asbestos Asbestos Ltd. Cook Insulation Asbestos Asbestos General Insulation Inc. Western Armstr Fi Insulation Rubber Corporation Armstr Arastr v. Co. Thorpe Son Inc. M. R. Caprenter my Moore Moore sore& Co., Caprenter John Swartout Swartout on May hearing his his 30th 1956 prior Commission claim before Industrial to a S widow Bergit Swartout Swartout Industrial with an application Industrial Accident 1956 alleging that Commission June 13th thtehe death of the deceased employment as asbest that due to to his worker for the above exployment 23 an asbest employers , 1956 and Herbert J. Williamson on Referee Purvis on At the hearing elected 1956 the proceed against the Western applicant elected carrier Asbest Asbest J the Company and its insurance Compensation Compensation Insuran Insuran Carrier, the State Compensation Findings On On above entitled 2 Award matter and found that in. the Swartout sustained issued and employee employee of employment sustained injury arising arising and award employment consisting consisting 2 in course applicant Bergit Swartout of disability indemnity indemnity and : 2 temporary disability June commencing January 11th 1955 1956 at including 2,555.00 also the 55.00 55.00 week the total sum 26 axcrded axcrded death 7,000.00 payable at the benefit benefit in the amount 15.00 eet Se atas . 15.00 rate 15.00 rate sux 1956 . ^'nd week beganing beganing aleog June of CANN of y'sl3p question which is the Huteod, decision his report De In to Findinga 08 follows follows FP i ys ~ Tan Findinga end 2 ens decision Refeyst wood an . * RsPege snsee Gestion Which is vee Ag: 0. Purvisee Sltehtwesan my ew yD . @ asbestosis Applicant the widow widow Applicant of employee employee pneumoconicals who died pneumoconicals temporary temporary claims accrued compensation compensation disability disability death accrued death death Seata & There no admitted admitted we Lir mite ations admitted Limitations a defendants prejudiced Limitations Limitations Limitations , Limitations juviculation OH NY oO 00 10 il 12 13 14 / 15 pulmonary The The record disclosed disclosed 50th 1956 the medical the employee employeewithout without conflict that death medical was evidence asbestosis on asbestosis Ae due to asbestosis The asbestosis employee filed original adjustment claim claim December original 1955 fox evidence the record record December first became disabled as the that asbestosis asbestosis January The result asbestosis January 10th he 1955 and that first which pulmonary disease which knew he had pulmonary disease . on which disease temporary That date must taken The application filed well within within year was therefore therefore from claim the date of barred by Statute the of Limitations . claim Applicant not Statute temporary Applicant Applicant disability may recover both benefit temporary disability and from the death benefit tt total disedility indemnity Defendants agree that the applicant . 16 temporary disability indemnity | | 17 18 19 20 21 22 23 claim which was awarded to her by the 7 + SRS respectfully submit that that \ However defendants claim for the Statute of death benefit is barred contention contention that the I4 n support of the death Statute Limitations Limitations the fon benefit is barred of Employee Employee Injuries defendants cite Workmen's Workmen's the Lew or Hanna Volume Compensation 149 which Compensation Warren L. Henne, Volume 2 NN follows PZ. 249 which recs che 25 26 27 28 29 50 si 32 paja from the more than one occurs occurs more claim year after within within injury year must also filed within from the last furnishing com- one pensation benefits benefits If such benefits com- of pensation pensation furnished furnished death benefits than not after occurs benefits benefits injung not injung death of One sven sven though applying the limitation limitation statute is ben is ore widow's widow's . widow's ths i: & Defendants Defendants v6. Inwastrial Accident ; InvagteLi1efa : AfeOoCatAaCns gete nn stat, Co hilectos, a 1 Californil Company Volume 2 1- Californil Compensation Compensation Compensation Compensation Inc. which is CCasaess es at pg 33 reported in Volume Volume 10 Defolidents cite the of Adelina Bianco Defolidents Defolidents Defolidents Defolidents also also also cite the case Adelina Bianco v3 PP 110 cud) 7 8 o 10 11 12 13 14 15 is a separate and for compensation independent independent right from the employee's claim The evidence in this case shows that no benefits were furnished to either the deceased employee during his lifetime or to the widow Bergit A. Swartout by the employer Western Asbestos Company and the The evidence also State shows Compensation Insurance Fund or any that no benefits were ever promise defendants to either the deceased employee or the widow 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 that no benefits were furnished 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 Commissie 21 and the Findings and Award corrected 22 Respectfully submitted 23 24 25 28 Dated at San Francisco Californie this 13th day of March 1955 RERECCEIVED EIVERDECEIVED 27 & - Bergit E. Swartout 28 3000 Marrywood Drive 29 Sacramento 21 California o> Smith & Parrish MAR 18 18 1958 ledoarid Relations Department of Relations pace 13 30 Attorneys at Law 501 Financial Center Eldg 31 Gaitland Califormis 32 oo o- Claims Department JC JC STATE OF CALIFORNIA 3 CITY & COUNTY OF SAN FRANCISCO SS Bh 5 6 R. A. YOUNG being first duly sworn deposes and says 7 That he is an officer towit Assistant General Manager of State Compensation 8 Petition for Insurance Fund Reconsideration that he has read the foregoing and knows the contents thereof 1010 that the same is true of his own knowledge except the matters 11 which are therein stated on information or belief and as to thos 12 matters be believes it to be true 15 14 Raying 15 Raying 16 17 Subscribed and sworn to before me 18 this 18th day of March 1958 RayinRayging 19 : 20 Fi Reet, Notary Public in and for the 21 City and County of San Francisco State of California 22 My Commission Fantire Dos DT 2039 23 RECEIVED 24 MAR 13 13 1958 25 Deparnet of ledustrial Relatives 26 ACCIDENTS 27 28 29 30 31 we vr, 32 wT. TN ote tale Le t