Abraham v. Workers' Comp. Appeals Bd.

• Decision Date: 25 November 2003
• Docket Number: No. G030868,G030868
• Citation: 113 Cal.App.4th 1082,6 Cal.Rptr.3d 820
• Court: California Court of Appeals Court of Appeals
• Parties: Sandra ABRAHAM, Plaintiff and Appellant, v. WORKERS' COMPENSATION APPEALS BOARD, Defendant and Respondent; City of Buena Park, Real Party In Interest.

6 Cal.Rptr.3d 820

113 Cal.App.4th 1082

Sandra ABRAHAM, Plaintiff and Appellant, v. WORKERS' COMPENSATION APPEALS BOARD, Defendant and Respondent;

City of Buena Park, Real Party In Interest.

No. G030868

Court of Appeal, Fourth District, Division Three

November 25, 2003

Review Denied March 24, 2004.

Faunce, Singer & Oatman, Edward L. Faunce, Seal Beach, and Larry J. Roberts for Plaintiff and Appellant.

Filarsky & Watt and Steve A. Filarsky, Manhattan Beach, for Defendant, Respondent and Real Party In Interest.

OPINION

IKOLA, J.

In this appeal, Sandra Abraham (appellant) challenges a judgment of the superior court denying her petition for writ of administrative mandamus against the Workers' Compensation Appeals Board (WCAB). The City of Buena Park (the city), appellant's former employer, appeared as the real party in interest in the proceeding below. We affirm the judgment, finding the court was without jurisdiction to entertain the petition.

FACTS

Appellant began her police career as one of two female officers with the city in 1987. She resigned in 1989, suffering debilitating depression and anxiety caused by the discrimination and sexual harassment of the male officers and their retaliation when she reported them to her unresponsive supervisors. She filed a claim for workers' compensation, which the city denied by letter dated December 15, 1989, stating, in pertinent part, "Your claim is being denied because we do not have any medical information indicating that your claim is work related." Appellant did not challenge the city's decision that her workers' compensation injury claim was nonindustrial.

Appellant filed a civil suit against the city, and in 1991 a jury awarded her $195,000 in damages. In 1994, this court affirmed the judgment, establishing appellant had been constructively discharged by the city as a result of the wrongful conduct. (McClaren v. City of Buena Park (Aug. 29, 1994, G012904) [nonpub. opn.].)

By virtue of her employment as a city police officer, appellant was a member of the Public Employees Retirement System (PERS). Consequently while appellant's civil litigation was pending, she filed an application for disability retirement with PERS, basing her claim on her psychiatric condition stemming from the workplace.¹ PERS forwarded the application to the city, its contracting agency, for a determination under Government Code section 21024.² In May 1992, the city decided appellant was not disabled, but that determination was overturned in 1996, when an administrative law judge found appellant was "substantially incapacitated from performing her usual and customary duties as a police officer for [the city's police department] because of a chronic mental condition."

Thereafter, in June 1997, appellant sought a determination by the WCAB that her disability was industrial. In accordance with section 21166, the WCAB hears and determines disputes arising under PERS regarding industrial causation of a disability. The city moved to dismiss the matter for lack of jurisdiction, noting appellant's workers' compensation claim had been denied nine years earlier, appellant had never before filed an application for adjudication of her claim before the WCAB, and the instant petition was presented outside the statutory five-year jurisdictional limit of the WCAB to hear it.

In March 1998, the WCAB judge issued the following finding of fact: "IT IS FOUND that the [WCAB] has no jurisdiction to make a finding on behalf of the applicant under Government Code [section] 21166 due to the failure of applicant to file an Application for Adjudication of Claim from her alleged date of injury culminating on or about October 27th, 1989." More particularly, the opinion states, "[T]he applicant is alleging injury which occurred on a continuous trauma basis culminating on or about October 27th, 1989.... [R]ule 10400 [then in effect] states that `Proceedings from the adjudication of rights and liability before the [WCAB] shall be initiated by the filing of an Application for Adjudication, Compromise and Release agreement or Stipulations with Request for Award.['] No such filing has been made in this matter.... Thus, it would appear that the petition in this matter is the first formal filing relative to the applicant's request for compensation benefits. It is noted that her claim as presented to the city in 1989 was denied. Under the rules extant at that time her option was to file an Application for Adjudication of Claim to invoke the jurisdiction of the Board for further proceedings." The opinion notes that appellant's claim for workers' compensation "was specifically denied by the employer defendant on December 15th, 1989," bringing into play the Labor Code statute of limitations (Lab.Code, § 5405) giving appellant "one year from the date of injury to commence proceedings with the WCAB," yet appellant "failed to [commence the proceedings] and has failed to do so to this very date." For this reason, the court found itself without jurisdiction "to render any decision relative to [appellant's] request for a finding of industrial causation pursuant to Government Code section 21166."

Appellant sought reconsideration. She argued her PERS claim under the Government Code and her workers' compensation claim under the Labor Code were completely separate and apart from one another for purposes of WCAB determination. She contended jurisdiction under the Government Code does not even arise until the employer has made a determination of disability for pension purposes. According to appellant, that determination did not occur until 1996, when the administrative law judge overturned the city's nondisability decision and found appellant was, in fact, disabled, thus the application for determination of industrial causation was timely.

The WCAB denied reconsideration, stating an additional ground for lack of jurisdiction. Specifically, it observed, "Here, the date of injury was August 30, 1989, but applicant did not file a petition seeking the WCAB's determination until June 17, 1997. Even in cases where the WCAB makes an original determination under section 21166 and a party subsequently seeks reopening under section 21171, there is an outside limit of 5 years from the date of injury for the Board to rescind, alter, or amend its original determination for good cause, under the power of continuing jurisdiction. Therefore, even if we were to assume that the WCR was incorrect in ruling that an Application for Adjudication of Claim must be filed to invoke the jurisdiction of the WCAB on a petition pursued under section 21166, applicant's failure to file the petition within 5 years from the date of injury would bar the petition if section 21171 was applied here."

Appellant petitioned this court for a writ of review under sections 21168 and 21170 to determine whether the WCAB had acted unreasonably or without or in excess of its powers.³ The question presented was whether the WCAB had jurisdiction under section 21166 to make an industrial causation finding. Per order of August 13, 1998, another panel of this court summarily denied the petition.

Three years later, on August 3, 2001, pursuant to Code of Civil Procedure section 1094.5, appellant filed a petition for writ of administrative mandamus in the superior court, seeking to compel the WCAB to set aside its decision that it lacked jurisdiction to determine industrial causation of appellant's disability and to compel it to decide the issue and grant relief. She set forth the procedural history summarized, ante, alleged she was eligible for an industrial disability retirement, and claimed she had never had a judicial review of the WCAB's determination. In its answer to the petition, the city asserted, inter alia, that under Labor Code section 5955, the superior court was without jurisdiction to consider the matter, and that relief was barred by the collateral estoppel or res judicata effect of this court's August 13, 1998 summary denial of appellant's petition for writ of review.

The superior court, deciding the Labor Code was no obstacle to its jurisdiction issued a judgment denying the request for writ "for the reasons stated in open court on April 16, 2002." The record to which the court alluded sets forth the following comments by the court: "[I]t appears very straightforward under the allegations of the pleadings before the court that [laches] does and should and must apply. Here we have the petitioner having sat on rights for a very long time. Even more importantly, we have a res judicata situation. Here the petitioner has filed before the Court of Appeal on the very same issues that [she] now wishes to file before this court on the case. [In re Rose (2000) 22 Cal.4th 430, [93 Cal.Rptr.2d 298, 993 P.2d 956]] talks about that issue and it has been adjudicated, and at this level, therefore, the court does not have jurisdiction. For that reason, the petition would be denied." Following further argument, the court concluded: "The Court of Appeal took the case. Like in here, even though they denied redress without comment, they still took jurisdiction and at that point then res judicata applies. I can't help that. That is the basis for this court's decision." Appellant appeals from the judgment denying her petition for a writ of mandamus.

DISCUSSION

Labor Code section 5955 provides, "No court of this state, except the Supreme Court and the courts of appeal to the extent herein specified, has jurisdiction to review, reverse, correct, or annul any order, rule, decision, or award of the [WCAB], or to suspend or delay the operation or execution thereof, or to restrain, enjoin, or interfere with the appeals board in the performance of its duties," and gives the Supreme Court or the Court of Appeal the power to issue a writ of mandate "in all proper cases." As stated by our Supreme Court more than 50 years ago, "An examination of the legislative history of [Labor Code] section...