Martinez v. Workers' Comp

• Decision Date: 15 November 2000
• Docket Number: No. B141578,B141578
• Citation: 101 Cal.Rptr.2d 406,84 Cal. App. 4th 1079
• Parties: (Cal.App. 2 Dist. 2000) JOSEPHINE MARTINEZ, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD, HUGHES/RAYTHEON et al., Respondents. Filed
• Court: California Court of Appeals

101 Cal.Rptr.2d 406 (Cal.App. 2 Dist. 2000)

JOSEPHINE MARTINEZ, Petitioner, v.WORKERS' COMPENSATION APPEALS BOARD, HUGHES/RAYTHEON et al Respondents.

No. B141578

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA, SECOND APPELLATE DISTRICT DIVISION FOUR

Filed 11/15/00

PROCEEDING to review a decision of the Workers' Compensation Appeals Board. Annulled and remanded.

(W.C.A.B. Nos. AHM 041402, 052973 and 057504)

Leviton, Rabine, Diaz & Whiting, and Lawrence R. Whiting for Petitioner.

No appearance for Respondent Workers' Compensation Appeals Board.

Robert F. Tardiff, Jr., for Respondent Hughes/Raytheon.

CERTIFIED FOR PUBLICATION

VOGEL (C.S.), P.J.

INTRODUCTION

The Workers' Compensation Appeals Board(WCAB) found that petitioner, Josephine Martinez, failed to participate in vocational rehabilitation (VR) until more than five years from the date of injury and more than one year from the last adjudication of permanent disability.Although Martinez had timely requested VR, the WCAB concluded benefits were barred by the statute of limitations.

Martinez maintains that jurisdiction for VR benefits continues once properly established, absent an intervening contrary order by the WCAB.We agree, and annul and remand the WCAB's decision for further proceedings consistent with this opinion.

FACTUAL AND PROCEDURAL BACKGROUND

Josephine Martinez, a master electronic assembler for Hughes Aircraft Company(Hughes), sustained injury to her back and left knee on May 11, 1994, and from August of 1980 to July 22, 1994.When Martinez filed an application for adjudication of claim (application) for each injury, she designated VR as an issue.

In a medical report dated May 8, 1996, by the treating doctor, work restrictions were imposed and Martinez was declared medically eligible for VR.

On January 13, 1998, Martinez was awarded 60 percent permanent disability by a workers' compensation judge (WCJ).After a petition for reconsideration by Hughes was denied by the WCAB and the decision became final, Martinez requested VR by letter to Hughes dated June 4, 1998.

Shortly thereafter, Career Works was assigned to facilitate development of VR.However, Martinez apparently had personal problems and VR was placed on hold.

In a letter dated November 24, 1998, Career Works indicated authorization had been given to recontact Martinez regarding VR.Martinez responded she was interested, but desired to wait until the beginning of next year.

A January 19, 1999, meeting between Martinez and Career Works was rescheduled in writing for October 1, 1999.After Martinez met with Career Works, she demanded weekly benefits, which was rejected by Hughes based on the statute of limitations even though there had never been a request for closure or an act of closure by the Rehabilitation Unit (RU) of the WCAB.

Martinez then filed for dispute resolution with the RU.The RU ruled in favor of Martinez, partly because Hughes failed to provide any opposition.

Hughes appealed the RU's determination to the WCJ.Hughes set forth that Labor Code sections 5410¹and5405.5² controlled.Although Hughes conceded Martinez had timely requested VR, Hughes contended that the failure to participate until more than five years from the date of injury and more than one year from the last finding of permanent disability barred benefits.

Hughes further alleged Martinez could not interrupt VR without agreement or approval of the administrative director, according to section 4644, subdivision (b).³In addition, Hughes asserted closure was irrelevant because Martinez failed to perform any of the conditions allowing termination of liability under section 4644, subdivision (a).⁴

At trial, counsel for Martinez argued that the initial demand for VR was within the statute of limitations periods, and without a request or RU order for termination further demand for benefits beyond the statutory periods was still timely.

The WCJ found Hughes no longer had liability for VR because there was ". . . no actual attempt to participate in vocational rehabilitation services until October 1, 1999, a date well outside the 5 year period from the date of injury and more than one year from the date of the last finding of permanent disability by the Board in this matter."In the opinion on decision the WCJ agreed with Hughes that since Martinez could not unilaterally interrupt VR pursuant to section 4644, subdivision (b), and due to her actions closure could not occur according to section 4644, subdivision (a), participation in VR beginning after the statute of limitations periods was barred.

Martinez petitioned the WCAB for reconsideration.Martinez alleged she could unilaterally interrupt VR under California Code of Regulations, title 8, section 10129.1(hereafter title 8, section 10129.1), subdivision(b),⁵ and Hughes did not object or request termination.Since the initial request for VR was admittedly timely and there was no intervening order by the RU divesting jurisdiction,⁶ Martinez urged she remained eligible for benefits.

In the report on reconsideration the WCJ restated the reasons for the decision and recommended denial of the petition.The WCAB agreed with the WCJ and denied reconsideration.

Martinez petitioned this court for review.Martinez further alleges jurisdiction was timely invoked under section 5405.5 by her June 4, 1998, VR request, and a petition to reopen under section 5410⁷ was unnecessary without prior RU action as indicated by Youngblood v. Workers' Comp. Appeals Bd.(1989)216 Cal.App.3d 764.

In Youngblood, section 5405.5 was interpreted as allowing only an "initial" VR request beyond five years from the date of injury but within one year of the last finding of permanent disability.(Youngblood v. Workers' Comp. Appeals Bd., supra, 216 Cal.App.3d at p. 772.)However, an adverse adjudication of VR within five years from the date of injury, and not pleading VR in a petition to reopen which was resolved, precluded a VR request by letter to the employer, more than five years from the date of injury but within one year of last finding of permanent disability, from being an "initial" request.(Id. at pp. 773-775.)

In addition, Martinez continues to assert Hughes' approval of interruption was not mandatory, however, under title 8, section 10129.1, subdivision (a)⁸ because services, or a VR plan, was not provided.Martinez also alleges Hughes accepted interruption by not requesting dispute resolution.

Hughes has not responded.

DISCUSSION

I.Standard of Review

The facts in this case are not in dispute.Therefore, application of sections 5410and5405.5 to established facts is a matter of law subject to de novo judicial review.(Granco Steel, Inc. v. Workmen's Comp. App. Bd.(1968)68 Cal.2d 191.)

It is also well recognized that entitlement to VR is one of the most important benefits under the Labor Code.( 4635 et seq.;Estrada v. Workers' Comp. Appeals Bd.(1997)58 Cal.App.4th 1458;Sanchez v. Workers' Comp. Appeals Bd.(1990)217 Cal.App.3d 346.)Section 3202 provides that courts should liberally construe with the purpose of extending benefits, which governs all aspects of workers' compensation.(Arriaga v. County of Alameda(1995)9 Cal.4th 1055.)This policy is particularly compelling policy where the right to VR is at stake.

II.Compliance With Section 5410 or 5405.5

In this case VR was initially raised as an issue in the applications, followed by an award of other benefits.We need not decide, however, whether compliance with section 5410 and a petition to reopen was necessary, if Martinez alternatively complied with section 5405.5.(Sanchez v. Workers' Comp. Appeals Bd., supra, 217 Cal.App.3d 346, andO'Loughlin v. Workers' Comp. Appeals Bd.(1990)222 Cal.App.3d 1518.)

This determination turns on whether the June 4, 1998, request for VR to Hughes was an "initial" request as addressed by Youngblood v. Workers' Comp. Appeals Bd., supra, 216 Cal.App.3d 764.In Roberts v. Workers' Comp. Appeals Bd.(1992)3 Cal.App.4th 631, an injured worker waited to file for VR with the RU more than five years from the date of injury, but within one year of the last finding of permanent disability.Previously, the employee designated VR as an issue on the application, and then demanded VR from the employer before and after five years from the date of injury.The court held that since there had been no adjudication of VR prior to filing with the RU, the filing was the "initial" request and timely under section 5405.5.(Id. at p. 638.)

In Visalia School Dist. v. Workers' Comp. Appeals Bd.(1995)40 Cal.App.4th 1211, the injured worker originally raised VR as an issue on the application and called the claims examiner and requested VR more than five years from the date of injury, but within one year of the last finding of permanent disability.The court held that the phone call was sufficient to satisfy section 5405.5 considering the statute is not specific and the WCAB rules allow such contact.(Id. at p. 1227.)The court further found that a written request or filing with the RU was not the exclusive means to request VR.(Ibid.)

In this case there was no prior adjudication of VR before the June 4, 1998, request, which was within one year of the January 13, 1998, last finding of permanent disability.Since Hughes and the WCJ conceded the request was timely, and section 5405.5 does not state how VR must be requested, we find that writing the employer is sufficient under section 5405.5 and filing with the RU is not essential.

Furthermore, section 5405.5 only limits the time to initially request VR, and not the period for completion.Therefore, it was erroneous to require participation by Martinez within one year of the last finding of permanent disability.

III.Compliance With Section 5405.5 Notwithstanding VR Interruption

Similarly, a timely VR request does not somehow become untimely solely because interruption ends beyond the limitations period of ...