Martino v. Workers' Comp. Appeals Bd.

• Decision Date: 04 November 2002
• Docket Number: No. B155646.,B155646.
• Citation: 103 Cal.App.4th 485,126 Cal.Rptr.2d 812
• Parties: Brenda MARTINO, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD and California Insurance Guarantee Association, Respondents.
• Court: California Court of Appeals

126 Cal.Rptr.2d 812

103 Cal.App.4th 485

Brenda MARTINO, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD and California Insurance Guarantee Association, Respondents.

No. B155646.

Court of Appeal, Second District, Division 6.

November 4, 2002.

As Modified November 25, 2002.

William A. Herreras, Grover Beach, for Petitioner Brenda Martino.

Stockwell, Harris, Widom and Woolverton, David E. Jones for Respondent California Insurance Guarantee Association.

No appearance for Respondent Workers' Compensation Appeals Board.

YEGAN, J.

We review the order of respondent Workers' Compensation Appeals Board (WCAB) denying reconsideration. While a petition to terminate an employee's vocational rehabilitation (VR) services was pending before the rehabilitation unit (RU), employee petitioned to reopen with the WCAB within five years of her injury for new and further disability. She also requested VR be reinstated. While the petition to reopen was pending, VR services were terminated by the RU. Thereafter the petition to reopen was granted by the WCAB. Here we conclude the employee's petition for reinstatement of VR is not barred by the statute of limitations. We reverse.

FACTS

Petitioner Brenda Martino sustained an admitted industrial back injury on April 10, 1995. On June 1, 1995, Martino wrote her employer's insurer, Superior National Insurance Company (Superior),¹ requesting VR benefits. Superior agreed, and the parties selected a rehabilitation consultant. Martino's injury prevented her from participating in the program, and she requested that rehabilitation services be interrupted or deferred.² The parties agreed to a one-month extension, from July 1, 1996, to July 30, 1996. Martino timely requested and Superior granted two more extensions. Each of the letters from Superior agreeing to extensions contains the following notice: "Please remember that the law states that you have no more than five years from your date of injury to request additional rehabilitation services. If you do not request services by the interruption end date shown above, your rights to rehabilitation will probably end." Martino did request a further extension of the VR program beyond the last agreed extension date of February 20,1998.

On February 26, 1998, the workers' compensation judge (WCJ) awarded Martino 59 ½ percent permanent disability, further medical treatment and attorney fees. The order did not mention VR.

On April 9, 1998, Superior filed an application with the RU requesting that liability for VR services be terminated.

On April 24,1998, before the RU made a determination on Superior's request to terminate, Martino filed a petition to reopen with the WCAB alleging new and further disability and requesting that VR be reopened.

On May 11, 1998, the RU granted Superior's request to terminate VR services, finding that "there are no current grounds for extending the interruption of the rehabilitation process pursuant to [California Code of Regulations, title 8,] section 10129...." The RU's determination also states: "The employee retains the right to reopen the rehabilitation process per [Labor Code section] 5410—this must be made prior to 4-10-2000, or within 5 years from the date of injury. In view of the nature of the denial of vocational rehabilitation services, in order to reinstate the rehabilitation process, the employee will only be required to submit a written request for the same, albeit on a timely basis as previously stated." (Capitalization omitted.)

On May 30, 2000, the WCJ granted Martino's petition to reopen, finding new and further disability to her back and increasing her permanent disability rating to 85 % percent. The WCJ's opinion on decision states: "There seems to be little doubt that there is good cause to reopen. Applicant's back disability has changed and there has clearly been an additional period of temporary disability." The order does not mention VR.

Within one year of the supplemental award, on January 31, 2001, Martino wrote Superior requesting reinstatement of VR services. When Superior failed to respond, Martino filed a request for dispute resolution with the RU. A formal conference failed to resolve the issue. The RU issued a determination and order on March 29, 2001, denying reinstatement of VR on the ground that the request was barred by the statute of limitations. On that day, Martino filed a first amended petition to reopen with the WCAB, stating in part: "Applicant was awarded, on May 30, 2000, 85-1/2% permanent disability; applicant seeks to reopen rehabilitation one (1) year from the May 30, 2000 Award." She also appealed the RU's determination.

On May 25, 2001, the WCJ denied Martino's appeal, and the WCAB eventually denied Martino's petition for reconsideration, adopting the WCJ's report and recommendation on reconsideration as its own without further comment.

Martino filed a timely petition for review, contending that (1) the petition to reopen filed April 24, 1998, was timely under Labor Code section 5410³ because it was filed within five years of the date of her injury; and (2) her first amended petition to reopen was timely under section 5405.5 because it was filed within one year of the May 30, 2000, award of new and further disability.

DISCUSSION

An employer is required to offer VR services to qualified injured workers. (§§ 139.5, 3207; Veilleux v. Workers' Comp. Appeals Bd. (1985) 175 Cal.App.3d 235, 220 Cal.Rptr. 568.) Section 5410 states in part: "Nothing in this chapter shall bar the right of any injured worker to institute proceedings for the collection of compensation, including vocational rehabilitation services, within five years after the date of the injury upon the ground that the original injury has caused new and further disability or that the provision of vocational rehabilitation services has become feasible because the employee's medical condition has improved or because of other factors not capable of determination at the time the employer's liability for vocational rehabilitation services otherwise terminated. The jurisdiction of the appeals board in these cases shall be a continuing jurisdiction within this period."

The application of VR statutes of limitation to undisputed facts is a question of law subject to de novo review. (Martinez v. Workers' Comp. Appeals Bd. (2000) 84 Cal.App.4th 1079, 1084, 101 Cal. Rptr.2d 406.) "`Limitations provisions in the workmen's compensation law must be liberally construed in favor of the employee unless otherwise compelled by the language of the statute, and such enactments should not be interpreted in a manner which will result in' a loss of compensation." (Bland v. Workmen's Comp.App. Bd. (1970) 3 Cal.3d 324, 330-331, 90 Cal. Rptr. 431, 475 P.2d 663; see also Bussear v. Workers' Comp. Appeals Bd. (1986) 181 Cal.App.3d 186, 193, 226 Cal.Rptr. 242["[T]he legislative purpose in enacting section 139.5 was to enable injured workers to participate in rehabilitation training to the fullest extent possible"].)

To invoke the WCAB's continuing jurisdiction under section 5410, the Workers' Compensation Act (Act) requires only that an appropriate pleading be filed with the WCAB within five years from the date of injury. (See generally, 1 Herlick, Cal. Workers' Compensation Law (6th ed.2001) § 14.06, pp. 14-24-14-24.5.) If an appropriate pleading is timely filed within the five-year period, the power of the WCAB to reopen and decide a matter extends beyond the five-year period. (Bland v. Workmen's Comp.App Bd., supra, 3 Cal.3d at p. 329, fn. 3, 90 Cal.Rptr. 431, 475 P.2d 663; see also General Foundry Service v. Workers' Comp. Appeals Bd. (1986) 42 Cal.3d 331, 337, 228 Cal.Rptr. 243, 721 P.2d 124 ["The Board clearly has the power to continue its jurisdiction beyond the five-year period when an application is made within that period"].)

The RU found that Martino's April 24, 1998, petition to reopen was not timely under section 5410 because the petition was "chronologically out of sequence, given that subsequently the rehabilitation process was closed on 5-11-98." The WCJ agreed, stating "[t]o argue otherwise would be to state that one is attempting to reopen something before it has been decided which is certainly not acceptable."

These findings of untimeliness are not supported by the facts or the law. The petition to reopen was filed with the WCAB, not the RU. The only issue before the RU was whether to grant Superior's April 9, 1998, petition to terminate liability for VR. The RU's decision regarding Superior's request to terminate VR benefits had no effect on the WCAB's continuing jurisdiction to act on the timely filed petition to reopen containing the request to reinstate VR. A timely petition to reopen remains pending and is not affected by the statute of limitations where there has been no decision of any kind by the WCAB on the specific form of benefits at issue. (Bland v. Workmen's Comp.App. Bd., supra, 3 Cal.3d at pp. 333-334, 90 Cal.Rptr. 431, 475 P.2d 663.)

Moreover, neither the Act nor case law requires an injured employee to adhere to a strict chronological sequence when filing documents in administrative proceedings. To the contrary, it is an often-stated principle that the Act disfavors application of formalistic rules of procedure that would defeat an employee's entitlement to rehabilitation benefits. (See e.g., Rubio v. Workers' Comp. Appeals Bd. (1985) 165 Cal.App.3d 196, 200, 211 Cal.Rptr. 461 ["The Board's procedural rules `serve the convenience of the tribunal and the litigant[s] and facilitate the proceedings. They do not deprive the tribunal of the power to dispense with compliance when the purposes of justice require it, particularly when the violation is formal and does not substantially prejudice the other party'"].) Accordingly, this court has refused to strictly apply technical rules of procedure if to do so would deprive a worker of benefits. In Vasquez v. Workers' Comp. Appeals Bd. (1991) ...