California Ins. Guarantee Assn. v. Workers' Comp. Appeals Bd.

• Decision Date: 04 June 2008
• Docket Number: No. B199404.,B199404.
• Citation: 163 Cal.App.4th 853,77 Cal. Rptr. 3d 868
• Court: California Court of Appeals
• Parties: CALIFORNIA INSURANCE GUARANTEE ASSOCIATION, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD and DAVID CARLS, Respondents.

163 Cal.App.4th 853

77 Cal. Rptr. 3d 868

CALIFORNIA INSURANCE GUARANTEE ASSOCIATION, Petitioner, v.WORKERS' COMPENSATION APPEALS BOARD and DAVID CARLS, Respondents.

No. B199404.

Court of Appeals of California, Second District, Division Four.

June 4, 2008.

Guilford Steiner Sarvas & Carbonara, Frank E. Carbonara; Sacks & Zolonz and William E. Laffan for Petitioner.

Law Offices of Larry D. Rosenstein and Larry D. Rosenstein for RespondentDavid Carls.

No appearance for Respondent Workers' Compensation Appeals Board.

OPINION

MANELLA, J.

INTRODUCTION

We granted the petition of the California Insurance Guarantee Association(CIGA) for a writ of review, filed after the Workers' Compensation Appeals Board(WCAB or Board) denied CIGA's petition for reconsideration of an award of benefits to injured worker David Carls.¹CIGA contends the Board erred in rejecting its statute of limitations defense.²CIGA admits that the statutory period was tolled by the employer's failure to advise Carls of his rights under the workers' compensation law; however, it contends that Carls had actual knowledge of his rights more than one year before Carls filed a claim for benefits, causing the statutory period to run.CIGA also challenges the Board's finding that CIGA was estopped to assert the statute of limitations due to its delay in determining that the 1997 injury was a covered claim.Because CIGA has failed to show that it carried its burden to prove actual knowledge sufficient to end the tolling of the statute of limitations, we reject its first contention.We also reject CIGA's substantial evidence challenge to the estoppel finding.We conclude that on the record presented, the Board did not err in rejecting CIGA's statute of limitations defense, and we affirm the order denying reconsideration.

BACKGROUND

The material facts are undisputed.After we issued the writ of review, injured worker David Carls filed an answer admitting all material allegations of the petition, and adopting the petition's statement of facts as his own.Our summary is taken from the admitted allegations and the administrative record provided by the WCAB.

Carls was employed by Claremont Colleges as a sign painter.In 1996, he sustained a work injury to his left shoulder and neck, filed a workers' compensation claim and received temporary disability payments.In 1997, Carls injured his back after arriving at work two hours early.Although he notified his employer, the employer did not advise him of his potential eligibility for workers' compensation, and did not furnish him with a claim form, as required by law.³In 1999, Carls retained an attorney, Larry D. Rosenstein, who filed an application to adjudicate Carls's right to additional benefits relating to the 1996 injury.Carls did not file a claim for workers' compensation benefits for the 1997 injury until 2004.

In August 2002, when the claim for additional benefits for the 1996 injury was called for trial, the workers' compensation judge (WCJ) placed the matter off calendar to allow Carls to file a new or amended claim for the 1997 injury, but no new claim was presented until March 8, 2004, when Carls filed an application for adjudication of his claim for the 1997 injury.As a defense to the claim, CIGA raised the one-year statute of limitations set forth in section 5405, subdivision (a).

The 1996 and 1997 claims were consolidated for trial, which went forward in October 2004.Carls testified that when he injured his back in 1997, he reported the injury to Steve (his supervisor), who did not provide him with a claim form.Carls also spoke to Belinda Ochoa(apparently the employer's workers' compensation manager), who questioned why he had come to work so early.Because Ochoa "gave him a `hard time,'" Carls went to his own doctor for treatment.He never received a letter from his employer advising him of his right to file a workers' compensation claim.

The reports and deposition of Dr. Jon Greenfield, the physician who conducted the agreed medical examination (AME), were admitted into evidence.In his July23, 2001 AME report, Dr. Greenfield noted that in 1997, Carls had injured his back and reported the injury to his employer.A notation on the signature page of the AME indicated that a copy of the AME report was sent to Rosenstein.Dr. Greenfield also reviewed and summarized Carls's medical records relating to treatment for the 1996 injury by Dr. Edward D. Amorosi and Dr. Ronald B. Perelman.⁴

Also in evidence were several of Dr. Perelman's reports.As early as 1999 Dr. Perelman sent a report to Rosenstein, in which he wrote: "In the latter part of 1997, while at work, [Carls] states that he stepped in a hole and twisted his body, which caused severe pain in his low back and right lower extremity.He states that this occurred about two hours before the start of his shift.He went to the office, laid [sic] on the floor and propped his legs up in a chair ....Thereafter, he reported the injury to his [foreman] and an injury report was completed.Apparently, he was told this injury took place prior to his shift and this was not considered work related."

In May 2005, the WCJ issued his findings and award, ruling that the claim was not barred by the statute of limitations.CIGA filed its first petition for reconsideration of that decision.Before it was heard, the WCJ rescinded the order, conducted further proceedings, and in April 2006, issued his amended findings and award.CIGA filed a second petition for reconsideration, which was granted.Finding the record inadequate to allow meaningful review, the Board rescinded the award and findings, and returned the matter for further proceedings.

After considering additional evidence, the WCJ again rejected CIGA's statute of limitations defense and entered an award.CIGA again petitioned the Board for reconsideration.In his report and recommendation regarding the petition for reconsideration, the WCJ found that although Carls had filed his claim for benefits more than one year after his workplace injury, the statute was tolled by the failure of the employer, insurer or CIGA to notify Carls of his right to claim benefits.Citing testimony by Carls that he was not sure that he had seen Dr. Greenfield's reports attributing his back pain to the 1997 injury, the WCJ found that CIGA had not met its burden to prove that Carls had actual knowledge of his right to claim workers' compensation benefits for the 1997 injury.In addition, the WCJ concluded that CIGA was estopped from raising the statute of limitations because its conduct in failing to admit coverage for the 1997 injury until May 2003"ultimately delayed applicant's filing of the Application for Adjudication ...."

The WCAB adopted the WCJ's report and recommendation, and incorporated them into its order denying reconsideration.On January 25, 2007, the WCJ entered a compensation award for the 1997 injury, and after the WCAB denied CIGA's petition for reconsideration of that order, CIGA timely filed its petition for review by this court.We granted the petition and issued the writ January 31, 2008.

DISCUSSION

1.CIGA's Contentions

CIGA contends that the one-year statute of limitations barred Carls's claim for benefits for his 1997 back injury.As CIGA acknowledges, the statute is tolled by an employer's failure to notify its injured employee of a potential right to benefits, as required by section 5401, subdivision (a).(SeeKaiser Foundation Hospitals v. Workers' Comp. Appeals Bd.(1985)39 Cal.3d 57, 60[216 Cal.Rptr. 115, 702 P.2d 197](Kaiser).)However, CIGA contends that any such tolling in this case ended because Carls gained actual knowledge of the potential for workers' compensation benefits more than one year before he filed his claim.⁵

CIGA contends that the evidence showed three events by which Carls gained the requisite knowledge.First, CIGA contends that Carls knew from the moment of his injury in 1997 that he might have been entitled to workers' compensation benefits, because he had received benefits relating to his 1996 injury.Second, CIGA contends that Carls's awareness of his workers' compensation rights by 1999 was demonstrated by his having personally signed the application for the adjudication of benefits for the 1996 injury and his retention of counsel in 1999 to represent him in that adjudication.Third, CIGA contends that Carls was aware of his rights no later than 2002, when the WCJ continued the trial as to the 1996 injury, in order to permit the filing of a new or amended application covering the 1997 injury.

2.The Applicable Statute of Limitations and Tolling Under Kaiser

(1)"Within one working day of receiving notice or knowledge of [an industrial] injury ... result[ing] in lost time beyond the employee's work shift at the time of injury or which results in medical treatment beyond first aid, the employer shall provide, personally or by first-class mail, a claim form and a notice of potential eligibility for benefits ... to the injured employee ...."(§ 5401, subd. (a).)California Code of Regulations, title 8, section 9880, provides that the notice required by section 5401 must be in a writing worded in nontechnical terms, and must set forth specified information.⁶

(2)The statute of limitations applicable here is one year from the date of an industrial injury.(§ 5405, subd. (a).)Thus, an employee must submit a claim for compensation within one year of his or her injury.However, "[i]f the employer breaches its statutory duty to notify an employee unaware of his workers' compensation rights of these rights, the limitations period is tolled for the period of time that the employee remains unaware of his rights.No tolling occurs if the employee has actual knowledge of his rights before the employer's breach.The employer has the burden of proving when the injured employee gained actual knowledge of his workers' compensation rights.The employee must...