Liberty Mutual Ins. Co v. Workers' Comp. Appeals Bd.

• Decision Date: 12 August 1980
• Citation: 109 Cal.App.3d 148,167 Cal.Rptr. 57
• Parties: LIBERTY MUTUAL INSURANCE COMPANY, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD of the State of California and Levon Aprahamian, Respondents. Civ. 57036.
• Court: California Court of Appeals

Page 57

167 Cal.Rptr. 57

109 Cal.App.3d 148

LIBERTY MUTUAL INSURANCE COMPANY, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD of the State of California and Levon Aprahamian, Respondents.

Civ. 57036.

Court of Appeal, Second District, Division 5, California.

Aug. 12, 1980.

Evans, Dalbey & Cumming by Barry F. Evans, Hollywood, for petitioner.

Leslie, Rubin & Canter by Robert S. Canter, Beverly Hills, for respondent Levon Aprahamian.

Richard W. Younkin, William B. Donohoe, Dexter W. Young, and Allan Yannow, San Francisco, for respondent Workers' Compensation Appeals Board.

STEPHENS, Acting Presiding Justice.

Petitioner Liberty Mutual Insurance Company (Liberty) seeks review of the summary denial by respondent Workers' Compensation Appeals Board (Board) of Liberty's petition to reopen the workers' compensation award of respondent injured worker, Levon Aprahamian. We agree with Liberty that such summary denial was in error and accordingly annul the Board's decision.

SUMMARY OF APPEALS BOARD PROCEEDINGS

Aprahamian (hereinafter also "applicant") on April 16, 1974, sustained injury to his spine arising out of and occurring in the course of his employment for Huck Manufacturing Company whose compensation insurance carrier is Liberty.

On August 12, 1976, the Board awarded applicant 78 percent permanent disability which is the sum of $31,167.50 payable at $70 per week for 445.25 weeks commencing February 24, 1975, and thereafter a life pension of $29.08 for the remainder of his life.

On April 16, 1979, Liberty filed a petition to reopen to reduce applicant's permanent disability award. (Lab.Code, §§ 5803, 5804. )¹ In its petition to reopen Liberty alleged applicant's "condition has changed since the Decision of August 12, 1976, in that his disability is substantially less than that found and awarded at that time. . . ." In its petition to reopen Liberty neither offered specifics of its contention of decreased disability nor attached any documentary evidence. Liberty did state that it would "ask leave of the Board to offer medical evidence in support of this contention along with other evidence of a relevant and material nature."

On April 18, 1979, applicant filed "Objections to Petition to Reopen and Motion to Dismiss." Citing Polach v. American Smelting & Refining Co. (1969) 34 Cal.Comp. Cases 511, and WCAB Rules of Practice and Procedure (Cal.Admin.Code, tit. 8, ch. 4.5, subch. 2) § 10454, ² applicant moved that Liberty's petition be dismissed as it "fails to specifically set forth the nature and substance of the evidence, report or reports, or other matters upon which (Liberty) relies for showing of good cause, change in physical condition of the injured employee, or any other ground."

On April 24, 1979, and without prior notice to Liberty, the workers' compensation judge denied Liberty's petition to reopen on the grounds it had failed to present any evidence supporting its petition to reopen.

Liberty then sought reconsideration by the Board, asserting it had been denied the opportunity to present evidence on its petition to reopen. In its petition for reconsideration Liberty admitted it had presented no evidence to support its petition to reopen but stated: "Your petitioners have recently come upon evidence in support of its contention that there has been a change in the nature and extent of claimant's disability in the form of work activity which is contrary and inconsistent with the rating that previously issued and the finding based thereon which is supportive of the contentions set forth in its Petition to Reopen. . . . Specifically, claimant is now self-employed as the owner, operator and driver of a catering and/or vending truck. It is and will be the position of petitioners that the activity with reference to this self-employment reflects substantially less disability than that which was previously awarded."

The Board denied Liberty's petition for reconsideration and awarded applicant attorneys fees pursuant to Labor Code § 5410.1.

DISCUSSION

The denial of Liberty's petition to reopen precludes it from ever attempting to reopen the case again. This is because a petition to reopen must be filed within five years of the date of injury and that period has now lapsed. (Aliano v. Workers' Comp. Appeals Bd. (1979) 100 Cal.App.3d 341, 365, 161 Cal.Rptr. 190; 1 Hanna, Cal.Law of Employee Injuries and Workmen's Compensation (2d rev.ed. 1980) § 9.02(3).) ³

The informality of pleadings in workers' compensation proceedings before the Board has been recognized. (Zurich Ins. Co. v. Workmen's Comp. Appeals Bd. (1973) 9 Cal.3d 848, 852, 109 Cal.Rptr. 211, 512 P.2d 843; Bland v. Workmen's Comp. App. Bd. (1970) 3 Cal.3d 324, 328-334, 90 Cal.Rptr. 431, 475 P.2d 663.) The courts have rejected pleading technicalities as grounds for depriving the Board of its continuing jurisdiction under Labor Code sections 5410, ⁴ 5803, 5804 and 5805 ⁵ concerning petitions to reopen filed by the injured worker. ^{6 6} (Blanchard v. Workers' Comp. Appeals Bd. (1975) 53 Cal.App.3d 590, 126 Cal.Rptr. 187; Beaida v. Workmen's Comp. App. Bd. (1968) 263 Cal.App.2d 204, 69 Cal.Rptr. 516.) If the injured worker's petition to reopen is timely filed within the five year jurisdictional period, any lack of specificity therein may be later curable by amendment. (Blanchard, supra, 53 Cal.App.3d at pp. 594-595, 126 Cal.Rptr. 187; Beaida, supra, 263 Cal.App.2d at pp. 208-210, 69 Cal.Rptr. 516.) The language of an injured worker's petition to reopen is liberally construed. (Bland, supra.) Even the failure to attach medical reports to the petition to reopen is not fatal to an injured worker's petition. (Blanchard, supra.)

Respondents point out that the liberal pleading rules in favor of an injured worker's petition to reopen are based upon the rationale that Labor Code § 3202 requires liberal construction of the workers' compensation laws in order to extend protection to injured employees. (See Blanchard, supra, 53 Cal.App.3d 590, 126 Cal.Rptr. 187; Beaida, supra, 263 Cal.App.2d at pp. 208-209, 69 Cal.Rptr. 516.) Respondents thus urge that the Board's action is consistent with Labor Code § 3202, in that its summary denial of employers' and insurance carriers' skeletal petitions to reopen protects injured workers from groundless petitions to reopen. Respondents would thereby establish one rule of pleading for injured workers and another for employers and carriers.

In its brief the Board argues:

"The Board is concerned that if it is reversible error to dismiss a petition filed in the form of (Liberty's) petition here, (employers/carriers) will be encouraged to file skeletal Petitions to Reopen shortly before the expiration of the 5 year period without having medical or other evidence to support their contentions. It may well be that (employers/carriers) will routinely file such petitions in the hope that such evidence can subsequently be obtained or that attorneys will feel compelled to routinely file such petitions merely to avoid the possibility of malpractice. The Board consequently believes that compliance with (WCAB) Rule 10454 is essential to insure the integrity of the reopening process."

Injured workers are already provided ample protection from frivolous petitions to reopen by employers and carriers. The filing by an employer or carrier of a petition to reopen to reduce a permanent disability award does not permit the automatic unilateral termination of permanent disability payments. (County of Los Angeles v. Workers' Comp. Appeals Bd. (King), 104 Cal.App.3d 933, 160 Cal.Rptr. 369.) It is only until the Board actually grants the petition to reopen to reduce and modifies the award that the employer or carrier may discontinue or reduce payments in accord with the injured worker's reduced disability. (King, supra.) The employer or carrier is thus interested in proceeding diligently on its petition to reopen. If the employer or carrier is unsuccessful in reopening the case, a reasonable attorney's fee for the injured worker's attorney is assessed against the petitioning party pursuant to Labor Code 5410.1. ⁷ Further, if the employer or carrier files a petition to reopen immediately before the five-year period elapses the injured worker still has 30 days to file a counter petition to reopen to increase his award. (Lab.Code, § 5804.) In addition, if the employer or carrier has no evidence to support its petition to reopen the injured worker can simply get the matter set for hearing; or if the employer or carrier tries to delay, the injured worker can seek dismissal for lack of prosecution. (WCAB Rules, § 10582.)

Accordingly, as the injured worker is already amply protected against frivolous employer or carrier petitions to reopen, we decline to endorse the pleading rule dichotomy to the extent suggested by respondents. This is not to say that employers and carriers petitions to reopen must necessarily be given as broad a reading as allowed to an injured worker's petition to reopen. (See Bland, supra, 3 Cal.3d 324, 90 Cal.Rptr. 431, 475 P.2d 663.) In this case, however, Liberty's petition to reopen clearly states it requests a reduction of the permanent disability award based upon a change in such disability. Liberty's petition to reopen is not vague as to the issue presented only as to the underlying specific facts.

The summary denial of the petition to reopen also runs counter to the Board's own rules. The Board here has, in effect, granted a demurrer to Liberty's petition to reopen. Pursuant to WCAB Rules § 10490 ⁸ when a petition or other pleading "is insufficient no demurrer thereto is permitted; if a party is surprised or otherwise disadvantaged by the insufficiency of a pleading, the remedy is to grant that party a reasonable continuance to permit him adequately to prepare to present his case or defense." (Blanchard, supra, 53 Cal.App.3d at pp. 594-595, 126 Cal.Rptr. 187, 190; see also, Lab.Code, § 5500.)

The summary...