Hurwitz v. Workers' Comp. Appeals Bd.
| Decision Date | 18 October 1979 |
| Citation | 158 Cal.Rptr. 914,97 Cal.App.3d 854 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Michael HURWITZ and Industrial Indemnity Company, Petitioners, v. WORKERS' COMPENSATION APPEALS BOARD of the State of California, Patricia M. Esposito, Respondents. Civ. 21261. |
Parker & Dally, Robert L. Dally and Stanford D. Herlick, San Bernardino, for petitioners.
Richard W. Younkin, William B. Donohoe and Dexter W. Young, San Francisco, for respondent Workers' Compensation Appeals Bd.
Richard V. Jackson, Palm Springs, for respondent Patricia M. Esposito.
The Workers' Compensation Judge determined that the claim of applicant Patricia M. Esposito was barred by the statute of limitations. After granting reconsideration, the Workers' Compensation Appeals Board (Board) held that the employer, Michael Hurwitz, and his workers' compensation insurance carrier, Industrial Indemnity Company, were estopped to assert the statute of limitations and remanded the case for further proceedings at the trial level. The employer and its insurance carrier (collectively, defendants) unsuccessfully petitioned for reconsideration and thereafter petitioned this court for a writ of review which was granted.
The applicant, born July 14, 1952, was employed as a legal secretary by Michael Hurwitz, an attorney practicing in Palm Springs in association with another attorney, Philip H. Flickinger. On May 2, 1975, with the permission of Mr. Hurwitz, applicant stayed at the office past the usual 5 o'clock closing time typing a paper for her husband, Samuel Esposito. At about 9 p. m. she left the office, and, in coming down the allegedly unlighted common stairway of the office building, she fell, injuring her right leg. She had never before done typing of a personal nature after hours at the office.
Applicant continued working for Mr. Hurwitz until approximately May 14, 1975, at which time she wrote a letter to Messrs. Hurwitz and Flickinger to the effect she was resigning her position. She assigned as reasons for her resignation: "Breach of employment contract"; "clandestine and surreptitious manipulation of my emoluments"; having to work in an atmosphere where her self-respect was continually being "put to the test" by the use of profane language; mental harassment; and "(c)omplete disregard of my physical injury to my leg, which occurred on the job, May 2, 1975." Although not specifically mentioned in the letter, Mr. Hurwitz had apparently rebuked applicant for reporting late to work because of a medical appointment without giving him advance notice.
No medical or temporary disability benefits were furnished by defendants. Although applicant consulted an attorney and engaged him to pursue a third party action for damages on account of her injury against the owners of the office building, she filed no application for workers' compensation benefits with Board until April 11, 1977, almost two years after the date of her injury. In response to the application, defendants denied that the injury arose out of and in the course of the employment and further asserted that the claim was barred by the statute of limitations inasmuch as the application was not filed within one year after the date of injury.
The case was heard on November 14, 1977. The trial judge found applicant's claim barred by the statute of limitations. In the opinion he stated:
Applicant filed a timely petition for reconsideration. Board issued an opinion and order granting reconsideration for further study of what Board referred to as the "peculiar facts" and the law "in order to make a just and reasoned decision." On January 4, 1979, Board issued its opinion and decision after reconsideration holding, on the authority of Reynolds v. Workmen's Comp. Appeals Bd., 12 Cal.3d 726, 117 Cal.Rptr. 79, 527 P.2d 631, that defendants were estopped from asserting the statute of limitations by their failure to comply with the rules and regulations of the Administrative Director pertaining to notices to be given an injured employee. 1
Defendants then petitioned for reconsideration contending that the Reynolds decision was based upon the doctrine of estoppel and was inapplicable in the case at hand because the evidence established that applicant was represented by an attorney, was aware of her rights under the workers' compensation law, and was specifically aware that her claim must be filed within one year from the date of injury; that applicant discussed the matter with her attorney and deliberately chose not to pursue a workers' compensation claim until almost one year after the statute of limitations had expired and that her delay in filing did not result from defendants' failure to give her the required notice or notices. 2 On March 23, 1979, Board issued its opinion and order denying reconsideration reiterating that Reynolds was applicable and that defendants were estopped from asserting the statute of limitations because of their failure to comply with the notice requirements.
Defendants advance on review essentially the same contentions urged in their petition for reconsideration: that the rationale of the Reynolds decision is inapplicable in this case in which the applicant was fully aware of her rights under the workers' compensation law and made a deliberate choice not to file a workers' compensation claim within the period of the statute of limitations and that, therefore, the Board's decision is contrary to law and unreasonable; that Board's conclusion that defendants are estopped from asserting the statute of limitations is not supported by its findings; and that its findings are not supported by substantial evidence based on the entire record.
The principal contention of both applicant and Board is that the Reynolds decision is controlling. However, applicant appears to contend that Board found that applicant's failure to file a workers' compensation claim within the statutorily prescribed period resulted from intimidation and warnings by her employer and her attorney's having misled her into believing that her employer's assistance was necessary in the third party action and that that finding by Board is supported by substantial evidence. 3 Applicant is incorrect in several respects.
First, Board made no such finding. Although in its opinion and decision after reconsideration holding that defendants were estopped from asserting the statute of limitations Board did refer to applicant's allegations, contentions and assertions about threats and intimidations, the Board's decision was based squarely on defendants' failure to fulfill the "mandatory obligation to inform applicant of her rights or to issue a disclaimer of liability or notice of nonpayment of benefits" and the Reynolds decision. (See fn. 1, Ante.) Board itself confirmed that fact in its opinion and order denying defendants' petition for reconsideration in which it expressly stated: "In the Board's January 4, 1979, decision, the board relied upon the doctrine set out in Reynolds vs. WCAB (1974), 12 Cal.3d 726 (117 Cal.Rptr. 79, 527 P.2d 631), 39 CCC 768, As the basis of its decision that defendant is estopped to raise the statute of limitations as a defense herein." (Emphasis added.)
It is true that in the last substantive paragraph of Board's opinion and order denying defendants' petition for reconsideration it is stated: "Further, the record in this case indicates that applicant was subjected to intimidation and warnings by defendant employer discouraging applicant from filing a worker's compensation claim and that applicant's counsel led applicant to believe that defendant employer's assistance was necessary in applicant's third party case, thereby discouraging applicant from filing a worker's compensation claim until after the statutory period had passed." However, it is abundantly clear that the decision after reconsideration was not based on such a finding, 4 and it is reasonably clear that the same is true of the order denying defendant's petition for reconsideration. Significantly, in its response to the petition for writ of review, Board makes no attempt to uphold its decision on the basis of such a finding.
Secondly, no such finding would be supported by substantial evidence based on the entire record. All parties are agreed that the trial judge's summary of the evidence "adequately sets forth the facts of the accident and the matters that transpired after the accident pertaining to the issue of (the) statute of limitations . . .." The trial judge's summary of the evidence was itself well summarized by the trial judge in his report and recommendation on applicant's petition for reconsideration. It reads in pertinent part: "The applicant testified that, from her experience working in an attorney's office, she was aware that she could file a compensation (application) and that she had one year within which to file it. She hired an attorney, William Jones, to represent her, as she had a civil case against the office building. He, she stated, did not want to file a compensation case against her employer, as he told her this would create a conflict. Attorney Jones apparently had other cases with her employer. In any event, because of this advice, she relied on him and did not file. 5
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