Bassett-Mcgregor v. Workers' Comp. Appeals Bd.

• Decision Date: 09 November 1988
• Docket Number: BASSETT-M,No. F009212,F009212
• Citation: 205 Cal.App.3d 1102,252 Cal.Rptr. 868
• Court: California Court of Appeals
• Parties: BettycGREGOR, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD, Madera Newspapers, Inc., et al., Respondents.

Page 868

252 Cal.Rptr. 868

205 Cal.App.3d 1102

Betty BASSETT-McGREGOR, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD, Madera Newspapers, Inc., et al., Respondents.

No. F009212.

Court of Appeal, Fifth District, California.

Nov. 9, 1988.

Canelo, Hansen & Wilson, and Ronald W. Hansen, Merced, for petitioner.

McMurchie, Foley, Brandenburger, Weill & Keeling, and Daniel L. Keeling, Fresno, for respondents.

OPINION

HAMLIN, Associate Justice.

Applicant Betty Bassett-McGregor seeks review of a decision of the Workers' Compensation Appeals Board (Board), after reconsideration, in which the Board determined applicant's claim for cumulative industrial injury is barred by the statute of limitations. Applicant contends there was no substantial evidence to support the Board's finding that she knew, or in the exercise of reasonable diligence should have known, her cardiac arrest was the result of job stress; the Board acted in excess of its powers; and the decision was unreasonable. We reject applicant's substantial evidence contention but conclude the Board incorrectly determined that applicant's cumulative injury claim was time-barred.

This case presents an unusual variant of the problem of applying the statute of limitations (Lab.Code, § 5405) ¹ to a claim for cumulative industrial injury. Applicant was being treated for heart problems, including tachycardia, prior to July 27, 1984, when she suffered a cardiac arrest while at work as an advertising manager for Madera Newspapers, Inc. (employer). On December 12, 1984, within the limitations period, applicant filed a claim for compensation for specific industrial injury. Approximately two years after applicant's heart attack, applicant received a medical opinion that her disability was the result of cumulative trauma and on July 23, 1986, filed a second claim alleging disability based upon cumulative injury. Although the record indicates applicant sought to amend the initial application to state a claim for cumulative rather than specific injury, at trial applicant acquiesced in the handling of each application as a separate claim. Following trial, the workers' compensation judge (WCJ) denied applicant's initial claim for specific injury and awarded benefits based on the second claim, finding that applicant's disability was caused by cumulative work stress. Although in a supplemental decision the WCJ rejected the contention of employer and its workers' compensation carrier, Allianz Insurance Company (Allianz), that the cumulative claim was time barred, the Board granted reconsideration and reversed on the statute of limitations issue, leaving applicant uncompensated.

The principal questions presented by the petition for review are (1) whether a medical opinion concerning the cumulative nature of the injury is necessary before the statute of limitations begins to run on a claim for cumulative disability; and (2) whether the July 23, 1986, cumulative injury filing can be held to "relate back" to the initial claim so as to avoid the bar of the statute of limitations. We consider these issues after further setting forth the procedural and factual background.

PROCEDURAL AND FACTUAL BACKGROUND

Applicant, an advertising manager for employer, suffered a cardiac arrest while working on July 27, 1984, and was off work from July 28, 1984, through January 4, 1985. During this period she consulted an attorney because she felt her problem was job related and she had medical bills that were not covered by her insurance. On December 12, 1984, applicant filed a workers' compensation claim (case No. 84 FRE 67638) alleging that she "... sustained injury arising out of and in the course of employment to Heart" while "selling advertising...."

On July 23, 1986, applicant tendered a second application form, designated "AMENDED APPLICATION FOR ADJUDICATION OF CLAIM" in case No. 84 FRE 67638, which nevertheless was assigned a new case number (86 FRE 77525), ² alleging that cumulative job trauma from July 27, 1983, through July 27, 1984, caused applicant's heart attack. In each case, Allianz contested that the injury arose out of and in the course of employment, and no benefits were paid. In case No. 86 FRE 77525, Allianz raised the issue of the statute of limitations.

On October 16, 1986, a hearing was held in both cases before the WCJ. Applicant concedes that counsel "acquiesced at the trial in allowing two cases to proceed, one on a specific injury theory, and the other on a cumulative job stress theory."

At the time of her cardiac arrest in July 1984, applicant was 59 years old and had worked as an advertising manager for employer and the predecessor company, The Chowchilla News, for seven years. Her duties included selling ads and doing layouts and bookwork; 85 to 90 percent of her time was spent in the field selling ads and making customer contacts.

Applicant had been under medical supervision for premature ventricular contractions, tachycardia and arrhythmia since 1978. She was hospitalized twice before 1979 for this problem, and saw a doctor periodically for hypertension; she was on medication for both these problems during the year prior to July 1984.

Applicant was referred to Dr. William Owen by Dr. Virgil Reyes in 1979 for another opinion on her rapid heartbeat. In 1982, Dr. Owen told her to cut down on her hours because he felt the problem was related to her job.

On the morning of July 27, 1984, applicant went to Kelly's Tire Service, where she was dealing with John Kelly, a regular customer. Applicant did not recall being under any unusual stress that morning, but remembered that it was "extremely hot" at Kelly's. She put her head down on the counter and regained consciousness approximately one week later in the intensive care unit at St. Agnes Hospital. Applicant was hospitalized for 17 days. She testified that while in the hospital she did not discuss with Dr. Owen the possible relationship of her heart problem to her employment.

Following her initial hospitalization for the heart attack, applicant underwent evaluation at Stanford University Hospital. In December 1984, while at home lying down, she started having premature ventricular contractions and was again hospitalized for regulation of her medication. Applicant testified that subsequently she has had very few premature ventricular contractions. She returned to work full time in January 1985 in her former capacity and continued to conduct sales in the field.

The several medical reports filed as exhibits at the hearing contained widely differing views of the causes of applicant's heart attack and resulting disability. Doctors' certificates filed with the Employment Development Department by applicant's attending physicians following her July 1984 hospitalization indicate that Dr. Owen felt applicant's disability was not the result of her employment, whereas Dr. Reyes expressed no opinion. ³ Dr. Reyes did indicate that he did not report the disability as a workers' compensation claim. He listed as his diagnosis "Acute cardio. resp. arrest due to ventricular tachycardia, ..." and stated that applicant was disabled as of July 27, 1984.

Dr. William S. Breall, a cardiologist, examined applicant in June 1985, at the request of Allianz. He concluded that applicant had no cardiac disability and that the heart attack was caused by "prolapse of the posterior leaflet of the mitral valve," and "myocardial bridging of the anterior descending branch of the left coronary artery," congenital syndromes associated with "ventricular arrhythmias." Dr. Breall further reported, "It is obvious upon reviewing the entire cardiovascular problem of Ms. Bassett-McGregor that she does not have an industrially related heart condition. There was no specific work event that caused heart muscle damage. There was no chronic cumulative injury to her heart."

In contrast, Dr. Richard M. Luros, an internist who examined applicant in April 1986 at the request of her attorney, concluded that applicant had an industrial disability caused by "cumulative stress at work," which "predisposed her to tachyarrhythmias and fibrillation, ..." Dr. Luro's report refers to a 1982 (predisability) report of Dr. Owen to Dr. Reyes in evidence. In his report of May 6, 1982, Dr. Owen wrote: "I would feel that Mrs. McGregor is having recurrent episodes of ventricular tachyarrhythmia. These really do seem to be tension phenomenon [sic ] with her and may be related to her job situation as well as her current relationship with her new husband. This was discussed with her and she feels that these factors may well play a role in this."

None of the examining physicians found evidence of coronary heart disease.

On February 20, 1987 the WCJ issued his findings and award in case No. 86 FRE 77525, holding that applicant had sustained injury to her heart which arose out of and in the course of her employment during the period July 29, 1983, through July 27, 1984. Applicant was awarded reimbursement for medical expenses, temporary disability from July 28, 1984, through January 4, 1985, a permanent disability rating of 30 percent, plus future medical care. In his opinion on decision, the WCJ explained that applicant's testimony and the report of Dr. Luros established "an industrial cumulative trauma injury to [applicant's] heart and cardiovascular system. There is no evidence of a specific injury." In companion case No. 84 FRE 67638, the WCJ issued his findings and order that applicant take nothing because "[t]he preponderance of the evidence does not indicate that applicant sustained a specific injury on July 27, 1984 ... as alleged."

Thereafter, on March 17, 1987, Allianz petitioned for reconsideration in case No. 86 FRE 77525 on the ground that the WCJ had failed to address the statute of limitations issue. Reconsideration was granted and on May 5, 1987, the WCJ issued supplemental findings and order holding that the claim in No. 86 FRE 77525 for cumulative...