Clark v. Workers' Comp. Appeals Bd.
| Decision Date | 24 May 1991 |
| Docket Number | No. B051429,B051429 |
| Citation | 281 Cal.Rptr. 485,230 Cal.App.3d 684 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Shirley J. CLARK, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD, Department of Youth Authority, et al., Respondents. |
Goldschmid, Silver & Spindel and Lawrence Silver, for petitioner.
Krimen, Hershenson, Da Silva & Daneri and Don E. Clark, for respondents State of Cal., Dept. of Youth Authority, and State of Cal., Dept. of the Military.
William B. Donohoe and Neil P. Sullivan, for respondent W.C.A.B.
We review a decision in which respondent Workers' Compensation Appeals Board (Board) concluded Shirley Clark's application for death benefits was barred by the statute of limitations. We agree.
On July 15, 1987, John M. Clark filed an application for inter vivos workers' compensation benefits. The application was signed on July 13, 1987, on Mr. Clark's behalf by his wife, Shirley Clark. In the application Mr. Clark alleged he sustained industrial injury to his lungs and pulmonary system because of exposure to asbestos during the 1968 to 1974 period of his employment as a stationary engineer by the California Youth Authority.
Mr. Clark died on July 18, 1987. In the death certificate, Mr. Clark's physician, Dr. Allen Rosen, stated the death was caused by cardiorespiratory arrest, congestive heart failure, and emphysema. The death certificate did not mention asbestos exposure.
On November 2, 1988, Shirley Clark filed an application for death benefits under the same case number as her husband's application for inter vivos benefits. The employer asserted her application was barred by the statute of limitations.
The autopsy report stated Mr. Clark had congestive heart failure, cor pulmonale, marked bilateral emphysema, bilateral pleural effusions, bilateral lower lobe pleural fibrosis, pulmonary edema, dehydration, and emaciation.
Dr. Ira Monosson interviewed Mrs. Clark on March 1, 1988, and reviewed pertinent medical records at the request of Mr. Clark's attorney. In a report dated May 23, 1988, Dr. Monosson reported that Mr. Clark's duties as a stationary engineer for the Youth Authority included removal of asbestos insulation from pipes and the interior of boilers and replacement of the insulation. Although the work generated asbestos dust, Mr. Clark had no special protective clothing or equipment and did not wear a respirator.
Dr. Monosson noted that Mr. Clark had "a morning cough" for "a number of years." In 1983 Mr. Clark was treated for laryngeal cancer. The laryngeal cancer treatment was successful, but Mr. Clark's cough became worse and by 1984 Mr. Clark had shortness of breath with exertion. By December 1986 Mr. Clark had chronic pleural effusions and was too ill to work.
Dr. Monosson further reported that in early 1987 Mr. Clark's asbestos exposure "surfaced" and Mr. Clark's primary treating physician informed Mr. and Mrs. Clark that the asbestos exposure had caused the pleural effusions. Dr. Monosson stated Mr. Clark's primary treating physician told Mrs. Clark to get an attorney and file a workers' compensation claim. Dr. Monosson noted Mrs. Clark did not read the autopsy report.
Dr. Monosson concluded the industrial asbestos exposure contributed to Mr. Clark's death by aggravating his emphysema.
Dr. Warren Roston opined the asbestos exposure did not contribute to Mr. Clark's death. Dr. Roston concluded the death was caused entirely by nonindustrial factors, including heavy smoking and severe alcohol abuse.
Mrs. Clark testified she first knew on March 1, 1988, that asbestos caused or contributed to her husband's death when she was so informed by Dr. Monosson. Upon cross-examination, she stated she signed Mr. Clark's application because he was not in any condition to sign it. She admitted she read the application before signing it, but stated she probably did not read it as thoroughly as she should have done. She knew her husband had a lung disorder.
Mrs. Clark further testified that when Mr. Clark was ill she thought the illness might have been caused by his work for the Youth Authority. When Mr. Clark worked for the Youth Authority, he told Mrs. Clark he had to "fire up" boilers insulated with asbestos, "repair[ ] the asbestos that was wrapped around the pipes," and "clean[ ] out" boilers that contained asbestos.
Upon cross-examination, Mrs. Clark stated she told Dr. Monosson that Dr. Rosen told her to file a workers' compensation claim. She testified Dr. Rosen had told Mr. Clark to file the claim and she acted on her husband's instructions. Upon being asked when Dr. Rosen "either told [Mrs. Clark] or told [her] husband and [her] husband then directed [Mrs. Clark] to file a claim," Mrs. Clark testified: "It seems to me that it was some time [sic ] after my husband was first hospitalized in December of
1986." Upon being questioned by the workers' compensation judge (WCJ) as to whether "Dr. Rosen told you to get an attorney in December of '86," Mrs. Clark testified: "I believe that was the discussion." After Mrs. Clark answered the WCJ's question, her attorney objected on the grounds Mrs. Clark had testified Dr. Rosen told Mr. Clark to get an attorney in December 1986. Mrs. Clark then testified: She later testified: "... I think my husband said Dr. Rosen thought it was a good idea for you to get an attorney because, evidently, my husband stated something about maybe one time being exposed to asbestos...." Upon further questioning, Mrs. Clark stated she did not remember whether she was present when Dr. Rosen told her husband to get an attorney. Upon being asked whether she believed Mr. Clark's injuries were not work-related when she signed his application on his behalf, Mrs. Clark testified:
Mrs. Clark stated Dr. Rosen did not tell her that Mr. Clark's ill health was due to his work. She asserted she did not read the autopsy report. She claimed she did not have any discussion with Dr. Rosen after Mr. Clark's death because the death certificate stated Mr. Clark died of cardiac arrest. Although she was aware that the death certificate also listed emphysema as a cause of death, she stated nothing in the death certificate suggested to her that Mr. Clark had asbestosis.
Although Mrs. Clark initially testified in essence that when Mr. Clark died she thought his death was work-related because "you can't help but assume that when all of a sudden someone has lung problems," she later testified merely that she thought it was possible his death was work-related.
Lawrence Silver, Mrs. Clark's attorney, testified he scheduled the interview with Dr. Monosson to determine whether the death was work-related. He further testified he believed the application for death benefits was merely an amendment to the application for inter vivos benefits.
The WCJ determined the application for death benefits was not barred by the statute of limitations. The WCJ based this determination on his finding that neither Shirley Clark nor her attorney knew Mr. Clark's death was work-related until Dr. Monosson's report was received.
The employer petitioned for reconsideration.
In his report on reconsideration, the WCJ determined Mrs. Clark first knew on March 1, 1988, that the death was work-related and therefore the application for death benefits was timely. The WCJ stated it would be unfair to charge Mrs. Clark with earlier knowledge the death was work-related in view of Dr. Roston's assertion the death was not industrially caused.
In a two-to-one decision after reconsideration, the Board determined the application for death benefits was barred by the statute of limitations. The Board majority found Mrs. Clark knew at the time of Mr. Clark's death that the death was work-related. The Board based this finding on the evidence that Mrs. Clark signed and read Mr. Clark's application during his life, that his application stated the injury occurred because of exposure to asbestos, that Mr. Clark was too ill to sign his application, and that Mr. Clark died three days after his application was filed.
The dissenting Board panel member concluded the application for death benefits was timely because it was an amendment to the application for inter vivos benefits. In the alternative, he found the application was filed within one year after the widow first had knowledge the death was work-related. He gave great weight to the WCJ's determination as to the credibility of Mrs. Clark and her attorney. He concluded that under Labor Code section 5406.5 dependents should not be deprived of death benefits before they know they have a claim. He stated Labor Code section 5406.5 was enacted to extend and protect the rights of survivors of workers who died from asbestos exposure and to insure claims for death benefits would not be extinguished before they arose.
Mrs. Clark contends the application for death benefits was timely filed because it was an amendment to the application for inter vivos benefits and it was filed within one year after Mrs. Clark knew her husband's death was work-related. 1
In support of her contention that the death benefits application was an amendment to the inter vivos application, Mrs. Clark relies on Glavich v. Industrial Acc. Com. (1941) 44 Cal.App.2d 517, 112 P.2d 774 and Nino v. County of Los Angeles (1982) 47 Cal.Comp.Cases 370 (in bank). As explained below, neither case supports her contention.
In Glavich the court stated in dictum that it may be true that when a...
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