I dissent.
The majority pay lip service to the rules prescribing the time limitations within which proceedings for the recovery of compensation benefits from the Subsequent Injuries Fund (Fund) may be commenced but forthwith disavow them because they produce what the majority apparently deem an infelicitous result in the case at hand. Unfortunately, statutes of limitation, by their very nature and purpose, have this disconcerting effect. I would not find this disposition of the matter by the majority so objectionable if it were compelled because the existing rules were glaringly unsound or the suggested ones extraordinarily superior. But the majority discard rules which have been carefully fashioned over the last two decades by this court and the Court of Appeal and are crystallized in the five opinions1 which the majority summarize. Indeed,
*68none of the parties in this case have at any time discussed, let alone urged, the rule which the majority now gratuitously proclaim.
These five cases were the unanimous decisions of this court (Patterson) and of the Court of Appeal (Pranzitelli, Clubb, Ferguson and Busch); in each of the last four cases a hearing was denied by this court.2 3 In the place of these definite and well-reasoned rules, the majority now propose a vague and obviously expandable formula permitting a claimant to seek recovery of subsequent injuries benefits “if he files a proceeding against the Fund within a reasonable time after he learns from the board’s findings on the issue of permanent disability that the Fund has probable liability.” The rule of limitations thus devised by the majority instead of specifying definite and precise time periods in the normal format of statutes of limitations appears as a judicial mechanism of vague and indistinct contours which exposes the Fund and indirectly the State Treasury (see Lab. Code, §§ 4754-47S5)3 to claims for benefits presented in what may be considered to be from case to case by the particular administrative trier of fact “a reasonable time.” To discard the existing rules for such a device is indeed an unwarranted sacrifice.
It seems to me that the basic defect in the majority’s position is their assumption that since “[tjhere are no statutes of limitations applicable specifically to proceedings against the Fund” the majority have some free play to devise solutions “to avoid an injustice.” In the context of such a rationale the assumed “absence of statutory direction” is the key to the doors of the Fund. In the first place, it is nothing new that there is no statute in the Labor Code expressly prescribing a time period for proceedings against the Fund. As the majority themselves acknowledge, this deficiency has been cured by decisional law which has applied to such proceedings statutes of limitations already contained in the workmen’s compensation law (§§ 5405, 5410). These statutes, unlike the rule now promulgated in the instant case, specify precise time periods and are properly coordinated with concepts of jurisdiction basic to all proceedings for workmen’s compensation benefits. It is not accurate then to posit an “absence of statutory direction”; under the guidance of decisional law, there is statutory direction in the above sections of the Labor Code.
The courts, therefore, in the five pivotal cases already referred to (see fn. 1, ante), as well as in their progeny, have carefully and logically established within the framework of the compensation statutes, the roles of sections 5405 and 5410 as statutes of limitations for claims against the *69Fund. I think what the majority lose sight of is that proceedings for subsequent injuries benefits are not an isolated remedy but an integral fpart of the injured workman’s claim for benefits. His application may seek three different types of benefits provided for in chapter 2 of part 2 of division 4 of the Labor Code: (1) medical and hospital treatment (art. 2 of ch. 2, §§ 4600-4605); (2) disability payments (art. 3 of ch. 2, §§ 4650-4663); and (3) subsequent injuries payments (art. 5 of ch. 2, §§ 4750-4755). The first two categories of benefits are furnished and paid for by the employer; the third from a public fund. (§ 4754, see Busch, supra, 198 Cal.App.2d at p. 821.) Thus it made good sense for this court in Patterson to hold that proceedings for benefits from the Fund were “dependent upon the commencement of a proceeding to collect normal compensation within the time limits prescribed in . . . the Labor Code,” (39 Cal.2d at p. 92; see § 4751) and that the application of section 5410 as a statute of limitations on the commencement of proceedings against the Fund was appropriate under the facts of that case. Similarly, it made good sense to hold in Ferguson that it was intended “to gear the employee’s right to a benefit from the fund to a proper proceeding against the employer, . . .” (178 Cal.App.2d at p. 59) and that the application of section 5405 as a statute of limitations was appropriate under the facts of that case. What I emphasize is that the courts have skillfully applied existing statutes of limitations already in the Labor Code to proceedings against the Fund and have produced a harmonious scheme in which specific and definite time periods are made applicable to claims for all benefits sought by the injured employee.
The above rules of limitation also preserve an internal consistency with the basic concepts of jurisdiction which control all proceedings before the Board. Thus, as the majority properly acknowledge, if the injured employee has not previously filed an application for normal compensation, section 5405 applies and his claim for normal compensation and for subsequent injuries benefits invokes the original jurisdiction of the Board. If his claim for normal compensation is timely filed under section 5405, his claim for Fund benefits being geared to it, is also timely filed. (See Ferguson, supra; Busch, supra.) If, however, the employee has previously filed an application for normal compensation, his subsequent claim for Fund benefits invokes the continuing jurisdiction of the Board, section 5410 applies and proceedings for subsequent injuries payments must be commenced within five years after the date of injury. (See Patterson, supra; Pranzitelli, supra; Clubb, supra.)
Each of the above rules is grounded upon a recognition of the Board’s jurisdictional period of five years. In the first situation, section 5405 governs because the original rather than the continuing jurisdiction of the Board is invoked. Hence, if timely within section 5405, proceedings against the *70Fund can be commenced even though the claim is filed more than five years after the date of the industrial injury. If the time period of one year is reasonable for proceedings for normal compensation, surely it would also appear to be reasonable for Fund benefits. In the second situation, section 5410 governs because the original jurisdiction of the Board has already been invoked and the five-year jurisdictional period so well known for many years in workmen's compensation law (see § 5804)4 has commenced. In such a situation a claimant for subsequent injuries benefits must invoke the continuing jurisdiction of the Board. In doing this he is placed in no more onerous a position than when he institutes proceedings for compensation “upon the ground that the original injury has caused new and further disability.” (§ 5410.) If the time period of five years is reasonable for such last described proceedings (indeed it has withstood challenge these many years) surely it would also appear to be reasonable for subsequent injuries proceedings.
In sum, these rules are neither uncertain nor unworkable, neither esoteric nor Procrustean. They are evolved out of the material of the workmen’s compensation laws themselves, utilizing existing statutes of limitations in an intelligent way, and harmonizing them with the overall scheme and purpose of the compensation laws. They are recognized by eminent authorities in the field (see 1 Hanna, California Law of Employee Injuries and Workmen’s Compensation (2d ed.) § 9.05(4)(d), and by the bar (see California Workmen’s Compensation Practice (Cont.Ed.Bar 1963) § 5.13).
I can find no reason to tinker with these carefully developed rules in order to reach a desired result in a particular case. Nor can I perceive any necessity to disturb them with an innovation which none of the parties have urged. The main justification proffered by the majority for doing so seems to be a concern for applicants who, as in the instant case, presumably discover the extent of their disability only after the expiration of the five-year period. But the five-year period is of reasonable length, has been in the law for many years,5 and has commanded the vigilance of applicants and their counsel6 during all of this time. I cannot see why five years is not *71a sufficient period of time for any applicant of reasonable diligence at least to commence proceedings.
The majority, seemingly forgetful of the historic use of a five-year (and previously a 245-week) jurisdictional period in the Board’s proceedings and even giving the impression of telescoping this period into an interval shorter than it actually is, view the result of enforcing section 5410 as the barring of an applicant “from subsequent injuries benefits through no fault of his own . . . .” This view might be persuasive in some instances if an applicant were required to prove his claim within the five-year period. But he is merely required to file his claim for Fund benefits within that period. Section 5410, unlike section 5804 (see fn. 4, ante), does not deprive the Board of jurisdiction after the expiration of the statutory period. Once the Fund has been timely joined the Board has continuing jurisdiction over the claim, and may make an award even after the expiration of the five-year period. I fail to see how the majority can absolve from all fault an applicant whose counsel, aware of the law governing payments from the Subsequent Injuries Fund, permits a five-year period to elapse without completing the relatively simple procedure required to file a claim. (See California Workmen’s Compensation Practice, op. cit., § 16.32 for forms and procedure.)
It is convenient to note at this point the majority’s concern that if the Fund’s assertion of the statute of limitations is upheld, “the Board could be severely burdened in carrying out its duties” because applicants out of an excess of caution will join the Fund with the employer in every proceeding for permanent disability. Although the rules of limitation declared in the five cases referred to earlier (see fn. 1, ante) have been operative for some time, no indication has been given us that this has occurred to date. If it should occur (which I doubt) I fail to see how any of the interested parties would be prejudiced. Indeed, at oral argument, counsel for the Fund indicated that he would prefer such joinder. Certainly, once the Fund had been joined any burden on the Board could be lessened by continuing the proceeding against the Fund. In any event, the claims against the Fund would be filed (although they would not have to be proved) within the definite time periods of existing statutes of limitation. I fail to see how this spectre of routine filing can be a decisive factor in this case.
The record in the instant case discloses the following: On August 2, 1960, the applicant sustained an industrial injury. On November 1, 1960, she filed, in propria persona, her claim for normal compensation. On January 21, 1961, she retained attorneys who thereafter represented her throughout the proceedings. The five-year period prescribed by section 5410 did not expire until August 2, 1965. On May 12, 1961, the Board awarded her temporary total disability beginning August 3, 1960, to and including March 17, 1961, *72and continuing thereafter until further order and retained jurisdiction to determine the extent of permanent disability “upon the request of any party in interest.”
Thereafter the matter was set down for hearing for October 15, 1963, to determine the issue of disability; it was then continued to January 14, 1964.7 On January 29, 1964, pursuant to written stipulation of counsel for all parties the matter was ordered off calendar “subject to being reset, after notice, upon request of any of the parties hereto.” Not until two years later, on January 24, 1966, and after the expiration of the five-year jurisdictional period, was there any activity in the matter at which time applicant’s counsel requested that the matter be set for hearing, stating: “The issues will include temporary disability, permanent disability, and need for life-time medical treatment.” Even at that date, no mention is made of subsequent injuries benefits. Not until July 29, 1966, almost one year after the expiration of the five-year period, did applicant file an amended application for subsequent injuries benefits.
On January 15, 1964, when applicant through her counsel stipulated that the matter could be taken off calendar all of the five pivotal cases (Patterson, Pranzitelli, Clubb, Ferguson and Busch, see fn. 1, ante) had already been decided. The first three clearly and thoroughly declared that where as here an application for normal compensation had already been filed, the time within which to apply for subsequent injuries benefits was that prescribed by section 5410, namely within five years of the date of injury. Applicant and her counsel are presumed to know this limitation and, of course, are presumed to know that up to that point no claim for such benefits has been made. More important, as the majority themselves state, applicant “must have been aware of her prior disabilities, . . .”
In sum, I cannot find any substantial reason, much less a compelling necessity, for jettisoning the statutes of limitations made applicable by now settled decisional law to claims for subsequent injuries benefits, which statutes are part of the workmen’s compensation laws of this state, prescribe clear and definite time periods and have been found workable for many years. I can apprehend no reason at all for replacing such rules of limitation with the vague formula gratuitously conceived by the majority which exposes the Subsequent Injuries Fund and the State Treasury to claims at the whim of a “reasonable time” formula. Finally, even were I to contemplate an exception to the rules, I would not find an acceptable vehicle in the instant case where the applicant has exhibited no vigilance in respect to a five-year jurisdictional period of which she should have been well aware.
*73I would annul the award upon the ground that the applicant’s claim for subsequent injuries benefits was barred by the provisions of section 5410 of the Labor Code.
Petitioner’s application for a rehearing was denied March 25, 1970. Sullivan, J., was of the opinion that the petition should be granted.
Subsequent etc. Fund v. Ind. Acc. Com. (Patterson) (1952) 39 Cal.2d 83 [244 P.2d 889]; Subsequent Injuries Fund v. I.A.C. (Pranzitelli) (1957) 151 Cal.App.2d 606 [312 P.2d 78]; State of Cal. v. Industrial Acc. Com. (Clubb) (1957) 155 Cal.App.2d 288 [318 P.2d 34]; Subsequent Injuries Fund v. Ind. Acc. Com. (Ferguson) (1960) 178 Cal.App.2d 55 [2 Cal.Rptr. 646]; State of California v. Ind. Acc. Com. (Busch) (1962) 198 Cal.App.2d 818 [18 Cal.Rptr. 458],
It is noteworthy that all four decisions of the Court of Appeal are from the First Appellate District, Division One, although the composition of the court varied.
Hereafter, unless otherwise indicated, all section references are to the Labor Code.
Section 5804 provides in pertinent part: “No award of compensation shall be rescinded, altered, or amended after five years from the date of the injury except upon a petition by a party in interest filed within such five years and any counter-petition seeking other relief filed by the adverse party within 30 days of the original petition raising issues in addition to those raised by such original petition. . . .” (Italics added.)
Prior to 1949, the period was 245 weeks or 15 weeks less than five years. (Stats. 1949, ch. 677, p. 1174, §§ 1 and 2).
In the instant case, although applicant filed her application in propria persona on November 1, 1960, she appointed counsel on January 21, 1961, and thereafter had counsel at all times throughout the proceedings.
It is significant that the printed notices of hearing to all parties contain the following: “Note, Continuances and Further Hearings are Not Favored.”