Sidders v. Workers' Comp. Appeals Bd.

• Decision Date: 30 September 1988
• Docket Number: No. F009244,F009244
• Court: California Court of Appeals Court of Appeals
• Parties: William A. SIDDERS, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD and Doctors Moore, Newman & Sidders et al., Respondents.

Page 304

252 Cal.Rptr. 304

205 Cal.App.3d 613

William A. SIDDERS, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD and Doctors Moore, Newman & Sidders et al., Respondents.

No. F009244.

Court of Appeal, Fifth District, California.

Sept. 30, 1988.

Goldberg, Fisher & Quirk and Arthur F. Fisher, Bakersfield, for petitioner

Mullen & Filippi, Gay Lynne Natho, Bakersfield, Mathews, McClain & Kraus, Michael J. McClain, Richard W. Younkin, William B. Donohoe and Charles E. Finster, San Francisco, for respondents.

OPINION

MARTIN, Acting Presiding Justice.

The applicant and petitioner, William A. Sidders, M.D., born January 31, 1920, sustained two specific injuries to his back while employed as a physician and surgeon by Drs. Moore, Newman & Sidders. The first occurred on March 25, 1981, when Industrial Indemnity Company provided insurance coverage (case No. 86 BAK 36748) and the second on February 17, 1983, when Employee Benefits Insurance Company provided coverage (case No. 86 BAK 36509).

Petitioner testified that after the initial injury he was hospitalized for four to five days but returned to work about four to six weeks after the injury. He continued to experience some backache and right leg pain. After the second injury in February of 1983, petitioner experienced periods of pain and numbness in his right leg and backaches. He has difficulty walking up steep grades and cannot run or jog. When the back pain became excessive, petitioner would lay on the floor with his feet propped up on an ottoman. He also took medication twice a day.

An application for workers' compensation benefits was filed on July 9, 1986, more than five years and three months after the March 25, 1981, injury.

A hearing was held before the Honorable Bruce M. Lang, Workers' Compensation Judge, on February 6, 1987. A series of letters were filed after the hearing in which further arguments were made on the issues of apportionment and the statute of limitations.

The workers' compensation judge submitted the case for a recommended permanent disability rating by the disability evaluator and stated, among other instructions, "consider that applicant had a prior back disability which precluded stooping and lifting."

Upon receiving such instruction the disability evaluator determined that the prior injury should be given a permanent disability rating of 50 percent and the second injury a permanent disability of 29.2 percent and then proceeded to subtract the disability attributed to the prior injury from the present disability, leaving a zero balance.

The workers' compensation judge determined that the application for benefits based on the occurrence of an injury on March 25, 1981, was barred by the statute of limitations. The workers' compensation judge determined that the second injury resulted in a 29 1/2 percent permanent disability. The applicant's preexisting back disability, which precluded stooping and lifting, was taken into consideration and, after apportionment for the preexisting restriction the workers' compensation judge determined that the second injury had not resulted in any compensable permanent disability. However, an award was made in favor of petitioner against Employee Benefits Insurance Company for further medical care and treatment as required to relieve or cure the applicant from the effects of the second injury.

The workers' compensation judge's opinion on decision included the following language:

"In a series of letters after the hearing, applicant claims the Statute of Limitations was tolled by defendants' failure to comply with the Administrative Director's Rules which require defendant to serve injured employees with notice of their rights in the workers' compensation system and the time limits for filing an application. In the letters, applicant cites several cases in support of this claim. In all the cases cited, there was evidence of the employer or carrier's failure to comply with the Administrative Director's Rules, coupled with evidence that within the Statute of Limitations the employee either did not learn of the connection between his injury and his employment or did not learn of his right to file an application for benefits. In the present case, no evidence was presented at the trial to establish any of these three points. The assertions made by applicant's attorney by letter after the hearing do not constitute evidence."

On July 19, 1987, petitioner filed a petition for reconsideration with the Workers' Compensation Appeals Board.

An answer to the petition for reconsideration was filed on July 29, 1987, by Employee Benefits Insurance Company.

On July 30, 1987, the workers' compensation judge recommended the petition for reconsideration be denied.

Since the workers' compensation judge determined that the one-year statute of limitations had run on the first injury, the board concluded that no award of permanent disability could be allowed for either of the two industrial injuries and an order to this effect was entered in each of the consolidated cases.

The Workers' Compensation Appeals Board issued an order denying reconsideration on August 12, 1987. The board denied reconsideration for the reasons stated in the report of the workers' compensation judge on the petition for reconsideration which the board adopted and incorporated into its order. The board also observed

"that the applicant here is one of the owners of a small medical corporation. In essence, therefore, he is arguing that the statute of limitations should be tolled by his failure to give notice to himself. We do not believe that the statute of limitations should be tolled under such circumstances."

A petition for writ of review was filed in this case on September 21, 1987. An answer to the petition for writ of review was filed by Employee Benefits Insurance Company on October 8, 1987, and by Industrial Indemnity Company on November 6, 1987.

This court requested supplemental letter briefing on the issues as to whether the petitioner's status as both an employee and a partner or corporate owner results in an inference or imputation of knowledge of petitioner's right to benefits referred in Labor Code section 5402 ¹ or otherwise renders inappropriate application of a tolling or estoppel doctrine based on asserted noncompliance with the employer's notification duty imposed by said section.

This court issued a writ of review and set the matter for an order to show cause hearing on May 16, 1988.

DISCUSSION

I. STATUTE OF LIMITATIONS

The affirmative defense of the statute of limitations was raised in an amended answer filed by Industrial Indemnity Company. In evidence at the hearing was the date of the initial injury, March 25, 1981, and the date of application or adjudication of a claim to workers' compensation benefits based on that injury, i.e., July 9, 1986. The question regarding a tolling of the statute of limitations was not raised or presented during the hearing. As was stated previously, the workers' compensation judge determined that due to a failure of proof on the issue of estoppel or tolling, the statute of limitations had run. This determination was adopted by the board. This order effectively placed the burden of proof as to the issue of the tolling of the statute of limitations on petitioner. As will be explained, this was an error of law.

The opinion or decision with regard to case No. 86 BAK 36748, the initial injury, found that the filing of the application was barred by the statute of limitations in that the application was filed July 9, 1986, more than one year after the date of injury and more than five years within which an injured employee may claim new or further disability. ²

The application filed by petitioner on July 9, 1986, was a claim for all workers' compensation benefits resulting from an injury that occurred on March 25, 1981. Medical benefits were paid by Industrial Indemnity through June 30, 1981. The statutory period for claiming further workers' compensation benefits under section 5405 would have terminated on July 1, 1982. If the application were interpreted only as a request for new and further disability, respondent Industrial Indemnity Company contends section 5410 would bar the claim. Respondent further argues that in raising the issue and asserting it at the hearing they made a prima facie showing that the statute of limitations had run.

In explaining his decision, the workers' compensation judge made reference to letters submitted by petitioner's counsel wherein petitioner cited several cases in support of his claim. The judge felt that these cases were inapposite in that each contained evidence of the employer or carriers' failure to comply with the administrative director's rule requiring an employer to notify an employee of his right to claim benefits. Furthermore, those cases contained evidence that the employee did not learn of his right to claim workers' compensation benefits for various periods of time which tolled the running of the statute. The opinion goes on to state that in the present case "no evidence was presented at the trial to establish any of these three points and that the assertions made by the applicant's attorney by letter after the hearing do not constitute evidence."

Section 5405 specifies in relevant part that workers' compensation proceedings must be commenced within one year from the date of injury or the date of last furnishing of any benefits. (See fn. 2, ante.)

The purpose of a statute of limitations for filing of claims in workers' compensation cases is to cause an early submission of controversies while it is possible to obtain competent evidence concerning the alleged injury and its effects, and thus to afford protection against false claims or those based upon remote and unsatisfactory speculation as to the cause of a disability manifesting itself long after the accident. (2 Hanna, Cal.Law of Employee Injury and Workmen's Compensation (2d...