Argonaut Ins. Co. v. Workmen's Compensation Appeals Bd.

• Decision Date: 10 January 1967
• Citation: 55 Cal.Rptr. 810,247 Cal.App.2d 669
• Court: California Court of Appeals Court of Appeals
• Parties: ARGONAUT INSURANCE CO., a corporation, Petitioner, v. WORKMEN'S COMPENSATION APPEALS BOARD, Brian J. Helm, Respondents. Civ. 8362.

Page 810

55 Cal.Rptr. 810

247 Cal.App.2d 669

ARGONAUT INSURANCE CO., a corporation, Petitioner, v. WORKMEN'S COMPENSATION APPEALS BOARD, Brian J. Helm, Respondents.

Civ. 8362.

Court of Appeal, Fourth District, Division 2, California.

Jan. 10, 1967.

As Modified Feb. 9, 1967.

[247 Cal.App.2d 671] Herlihy, Herlihy, Jones & Nelson by Harry M. Nelson, Los Angeles, for petitioner.

Everett A. Corten, San Francisco, Edward A. Sarkisian, Romaine E. Harper, by Romaine E. Harper, Los Angeles, for respondents.

OPINION

KERRIGAN, Justice.

Jurisdiction of this court to consider this petition for a writ of review was questioned initially on the ground that petitioner is not a resident of this appellate district within the meaning of section 5950 of the Labor Code. Nevertheless, petitioner maintains that section 5950 of the Labor Code has never been enforced because petitioner consistently has been permitted to file in districts other than that of its residence; ¹ that section 5950 of the Labor Code goes to the question of venue and not jurisdiction; that many factors are related to the Fourth District so that, in fairness to all concerned, the matter should be heard by this court. Specifically, the employer, the injured employee, and the local office of petitioner are all located within this district. Moreover, the injury which gave rise to the claim and the original proceedings for disposition of the applicant's claim occurred within this district. Such a combination of factors is sufficient to confer jurisdiction and venue in this tribunal.

The employee sustained an injury on the employer's ranch near the City of Ontario in San Bernardino County. The ranch is maintained for the training of race horses and for developing potential jockeys. The employee, a 16-year old youngster, lived in a dormitory or bunkhouse on the ranch, was paid a salary to aid in the care and training of the horses, and had ambitions of eventually becoming a thoroughbred pilot. While in the bunkhouse on Sunday, December 6, 1964, the employee engaged in some youthful 'fooling around' with other trainees of the same approximate age, and during the course of the 'horseplay' threw a glass of Kool-Aid in the face of one of his fellow trainees. The coworker chased the claimant around the bunkhouse and caught and pushed him through a glass door, as a consequence of which the young man suffered lacerations of the arms and hands.

On August 31, 1965, the employee filed an application with the Industrial Accident Commission (predecessor of respondent Workmen's Compensation Appeals Board). The referee, on December 14, 1965, filed findings and award determining the injury was not compensable on the ground the injury did not occur in the course of employment. Applicant then petitioned for reconsideration on January 3, 1966. By a report filed February 18, 1966, the identical referee recommended the petition be denied. Simultaneously on said date, some sixty-seven days after the date of the original order denying recovery, the respondent-Board filed a notice of intention to reopen the case pursuant to section 5803 of the Labor Code. The initial issue to be determined is whether the Board exceeded its jurisdiction under section 5900(b) of the Labor Code by reopening the case after the 60-day time limit prescribed therein had expired.

The 'Opinion on Notice of Intention to Reopen' provides as follows:

'Appellant has petitioned from the Findings and Award and Order filed December 14, 1965, intending (Sic, contending) in effect that the trial referee erred in finding that he did not sustain an injury arising out of and occurring during the course of his employment. Applicant requested a transcript in connection with his petition. Apparently the matter was held pending the preparation of the transcript so that it was not presented to the Board for consideration until jurisdiction was lost either to act upon applicant's petition or for the Board to act on its own motion. Therefore it seems just and proper that the matter be reopened on the Board's own motion. If and when the matter is reopened consideration will be given to applicant's petition and also to his request for oral argument.

'For the foregoing reasons:

'IT IS ORDERED that Case No. * * * be reopened on the Board's own motion pursuant to the provisions of Labor Code, Section 5803 unless good cause to the contrary has been shown in writing within ten (10) days from the service of this notice.'

On March 28, 1966, counsel for the parties stipulated the Board might reopen the case and consider applicant's contentions as set forth in his petition for reconsideration.

Reconsideration is, in effect, an appeal to the Board from the trial referee's determination, and the Reconsideration remedy is entirely Distinct from the procedure for Reopening a cause. Any person aggrieved, directly or indirectly, by any final order, decision, or award filed by a referee may petition for reconsideration (Lab.Code, § 5900(a)), or the Commission may, on its own motion, grant reconsideration at any time within sixty days after the filing of such order, decision, or award of a referee (Lab.Code, § 5900(b)).

When reconsideration is granted under section 5900(b) of the Labor Code, there is no requirement of a showing of 'good cause' as the basis for reconsideration. (Argonaut Ins. Exchange v. Ind. Acc. Com., 49 Cal.2d 706, 711, 321 P.2d 460.) When a petition for reconsideration has been granted or when the Board has granted reconsideration on its own motion, the Board may decide the matter Ab initio on the record or may call additional witnesses. (Lab.Code, § 5906.) However, provision has been made for the Board to act without taking further testimony. (Lab.Code, § 5907.)

The Board is not required to take further evidence, but may redetermine the case on the existing record pursuant to its statutory powers. (Argonaut Ins. Exchange v. Ind. Acc. Com., supra, 49 Cal.2d 706, 712--713, 321 P.2d 460.) If the Board fails to act on the petition for reconsideration within thirty days from the date it was filed, the petition is deemed to have been denied by the Board, unless the Board, when good cause is shown for an extension, extends the time within which it may act on the petition for a period not to exceed an additional thirty days. (Lab.Code, § 5909.)

Where an employee's petition for reconsideration is denied by operation of law, it has been held further action of the Board affecting a previous award exceeds its powers. (Llewellyn Iron Works v. Ind. Acc. Com., 129 Cal.App. 449, 454, 18 P.2d 975.)

On the other hand, the Board has continuing jurisdiction to reopen for five years from the date of injury. The Board may reopen under section 5410 of the Labor Code on the ground of new and further disability occurring within the five-year period, even though the Board's action is effected after the lapse of the five-year period, provided the application is filed within the five-year period. (Westvaco, etc. Corp. v. Ind. Acc. Com., 136 Cal.App.2d 60, 64, 288 P.2d 300.)

The Board also has continuing jurisdiction for five years to reopen under sections 5803 and 5804 of the Labor Code, to alter, amend, rescind, or change an order in any way if Good cause appears for reopening. (DeCelle v. City of Alameda, 186 Cal.App.2d 574, 578--579, 9 Cal.Rptr. 549; Sutton v. Ind. Acc. Com., 46 Cal.2d 791, 793, 298 P.2d 857; Sprague v. Ind. Acc. Com., 46 Cal.2d 414, 415, 417, 296 P.2d 548.)

Before the expiration of the five-year period, the Board can act under section 5803 or 5804 of the Labor Code, or can act under section 5410. After the expiration of the five-year period, the Board has no power to act under Section 5803 or 5804, except where a petition to rescind, alter, or amend is filed by a party in interest, within the five-year period. Absent such a petition, and after the expiration of the five-year period, the Board can only act under Section 5410. (See Westvaco Chlorine Products Corp. v. Ind. Acc. Comm., supra, 136 Cal.App.2d 60, 64, 288 P.2d 300; Lab.Code Sect. 5804.) Consequently, sections 5803 and 5804 do not stand alone and must be read In pari materia with section 5410. (United Air Lines v. Ind. Acc. Com., 158 Cal.App.2d 294, 297, 322 P.2d 535.) In the absence of a showing of a new and further disability within the meaning of section 5410, Board action is governed by the provisions of section 5803 and 5804. (Sutton v. Ind. Acc. Com., supra, 46 Cal.2d 791, 298 P.2d 857.)

In this case, the Board's good cause for reopening under sections 5803 and 5804 of the Labor Code, no new and further disability appearing within the meaning of section 5410 of the Labor Code, was the inequity in allowing an unintended lapse of time in examining the employee's petition for reconsideration under section 5900 to be deemed a denial of the petition for reconsideration pursuant to section 5909 of the Labor Code.

A similar issue was determined in a case involving Reconsideration in United States Pipe & Foundry Co. v. Ind. Acc. Com., 201 Cal.App.2d 545, 20 Cal.Rptr. 395, wherein the court used the following quoted language:

'Does Labor Code section 5900, subdivision (b), providing that at any time within 60 days after the filing of an order the Industrial Accident Commission may on its own motion grant reconsideration of the matter, fix a jurisdictional time limit upon such action of the commission? Although no case specifically decides the issue, we believe the language of the section and the statutory design permit no other conclusion than that the time limitation is jurisdictional.'

Quoting further from the opinion of the court:

'The Commission seeks to sustain its order on a second ground; it urges that instead of treating its ruling as a decision after reconsideration, we should regard it as a decision after reopening, pursuant to Labor Code, section 5803. As we have above indicated, however, we do not believe this order, subject to error and...