Youngblood v. Workers' Comp. Appeals Bd.

• Decision Date: 15 December 1989
• Docket Number: No. A043016,A043016
• Citation: 216 Cal.App.3d 764,265 Cal.Rptr. 211
• Parties: Robert YOUNGBLOOD, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD and The City and County of San Francisco, Respondents.
• Court: California Court of Appeals Court of Appeals

Page 211

265 Cal.Rptr. 211

216 Cal.App.3d 764

Robert YOUNGBLOOD, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD and The City and County of San Francisco, Respondents.

No. A043016.

Court of Appeal, First District, Division 4, California.

Dec. 15, 1989.

Kathryn E. Ringgold, Ringgold & Ayoob, San Francisco, for petitioner.

Louise H. Renne, City Atty., Nivedita Glace, Staff Atty., San Francisco, for respondents.

ANDERSON, Presiding Judge.

Petitioner Robert Youngblood (applicant) seeks review of a decision of the Workers' Compensation Appeals Board (Board) which held that it did not have jurisdiction under LABOR CODE SECTION 5404¹ and sections 5803 through 5805 to consider applicant's request for rehabilitation presented after five years from the date of injury. The Board further held that section 5405.5 applies only to initial requests for rehabilitation. Applicant contends that his request for rehabilitation, although not an initial request, is timely under section 5405.5 because it was presented within one year of the last finding of permanent disability. City and County of San Francisco (City) argues that applicant's request for rehabilitation is barred by the five-year limitation in section 5410. We affirm the Board's decision.

FACTUAL AND PROCEDURAL HISTORY

Applicant, born May 17, 1939, sustained an industrial injury to his right knee on October 3, 1978, while working as a motor coach operator for City. Findings and award issued on March 9, 1982. Applicant was awarded a permanent disability of 22 percent and future medical treatment.

Applicant also requested vocational rehabilitation, and apparently initiated proceedings before the Rehabilitation Bureau (Bureau) sometime in 1982. On July 8, 1982, following the opinion of an independent medical examiner, the Bureau issued a decision and order, finding that applicant was not a qualified injured worker eligible for rehabilitation benefits under section 139.5. Applicant did not appeal the Bureau decision.

On May 4, 1983, applicant filed a petition to reopen under section 5410, ² alleging that his condition had worsened and requesting that his claim "be reopened for purposes of finding new and further permanent disability." The petition did not allege the need for vocational rehabilitation as a ground for reopening.

On September 22, 1983, applicant filed the report of David Chittenden, M.D., dated August 18, 1983, in support of his petition to reopen. Dr. Chittenden stated that applicant was not able to return to work as a bus driver as a result of the industrial knee injury. He also determined that applicant's ratable permanent disability had increased to a limitation to light work under the guidelines for work capacity.

On May 17, 1985, a conference was held before the workers' compensation judge (WCJ). The WCJ's minutes reflect the issues discussed. There is no mention of a claim for vocational rehabilitation. A hearing was held before the WCJ on September 9, 1985. Entitlement to vocational rehabilitation was not raised.

Applicant testified regarding his injuries, physical limitations, and medical treatment. He also testified that he had not been employed, that he was retired, and that he had received some monies from a private disability policy until October 1983. There was no mention whatsoever regarding vocational rehabilitation, either that applicant might be interested in it or that he was requesting it.

Further findings and award issued on August 15, 1986. Finding that applicant's permanent disability had increased to 53 percent, the WCJ granted applicant's petition to reopen for new and further disability. ³ The WCJ made no findings regarding vocational rehabilitation. Applicant did not petition for reconsideration.

By letter to City dated October 27, 1986, over eight years from the date of injury, but within one year from the last finding of permanent disability, applicant requested rehabilitation. ⁴ City did not provide rehabilitation and applicant sought a decision and order from the Bureau which issued on July 22, 1987, finding that City was not obliged to provide rehabilitation because the issue of whether applicant was a qualified injured worker was addressed in 1982 and more than five years had elapsed since the industrial injury.

Applicant appealed the Bureau decision which was upheld by the WCJ on February 17, 1988. The Board issued its decision denying applicant's petition for reconsideration on June 6, 1988.

Relying on Bekins Moving & Storage Co. v. Workers' Comp. Appeals Bd. (1982) 137 Cal.App.3d 665, 187 Cal.Rptr. 226, the Board concluded that applicant's request for rehabilitation was untimely under sections 5803 through 5805. ⁵ At the time of the Bekins decision, not one of the limitation statutes stated on its face that it applied to requests for vocational rehabilitation under section 139.5. The issue in Bekins was whether sections 5410 and 5803-5804 applied to claims for rehabilitation filed after findings and award had issued as to other benefits, but within five years from the date of injury. Relying on section 5404, ⁶ the Bekins court determined that when an application for adjudication is timely filed, the right to request rehabilitation benefits not initially sought is governed by sections 5803 through 5805. (Id., at p. 670, 187 Cal.Rptr. 226.) Thus, the court treated the request for rehabilitation filed with the Bureau as a petition to reopen under sections 5803-5804, finding that the request alone met the requirement of good cause to reopen the prior award. (Id., at pp. 671-673, 187 Cal.Rptr. 226.) As such, the Board could exercise its power to amend the previous award under section 5803, and order the provision of rehabilitation benefits.

STATUTES OF LIMITATION--BACKGROUND

In California, the statutes of limitation consist of several provisions with varying limits of time depending on the particular situation. (§§ 5404-5412.) Section 5405 sets forth the basic time limitation for filing an application for workers' compensation benefits and invoking the Board's original jurisdiction. It provides that the limitation period for normal benefits (medical and disability) is one year from whichever of the following results in the longest period: (a) the date of the injury; (b) the date of the last indemnity payment for temporary or permanent disability; or (c) the date of the last furnishing of any medical or hospital benefits. (2 Hanna, Cal. Law of Employee Injuries and Workmen's Compensation (2d rev. ed. 1988) § 18.03, pp. 18-12--18-13.)

When section 5405, subdivision (a), is tolled by the voluntary furnishing of benefits, the five-year rule of section 5410 is in turn triggered. (Standard Rectifier Corp v. Workmen's Comp. App. Bd. (1966) 65 Cal.2d 287, 290, 54 Cal.Rptr. 100, 419 P.2d 164.) In this situation, that is, after the voluntary payment of benefits, section 5410 extends the period within which an original proceeding may be instituted from one to five years on the ground that the injury has resulted in further disability or a need for vocational rehabilitation. (Id., at pp. 290-291, 54 Cal.Rptr. 100, 419 P.2d 164; Pizza Hut of San Diego, Inc. v. Workers' Comp. Appeals Bd. (1978) 76 Cal.App.3d 818, 822-824, 143 Cal.Rptr. 131.)

Section 5405, subdivisions (b) and (c), operate to extend the time for filing original claims beyond the five-year limitation of section 5410 when benefits continue to be paid vol.untarily, without award, beyond that five-year period. (State of California v. Ind. Acc. Com. [Busch] (1962) 198 Cal.App.2d 818, 827, 18 Cal.Rptr. 458; Subsequent Injuries Fund v. Industrial Acc. Com. [Ferguson] (1960) 178 Cal.App.2d 55, 59-61, 2 Cal.Rptr. 646.)

The filing of an initial application for adjudication of claim institutes proceedings for workers' compensation benefits before the Board. (§ 5500.) The timely filing of an application with the Board for any part of the compensation defined in section 3207, including vocational rehabilitation, renders the statutes of limitation inoperative as to any subsequent proceedings for benefits referable to the same injury. (§ 5404; Bekins Moving & Storage Co. v. Workers' Comp. Appeals Bd., supra, 137 Cal.App.3d at p. 668, 187 Cal.Rptr. 226.) All further proceedings are governed by the five-year limitation provided in sections 5410 and 5804. (Ibid.) Section 5410 and sections 5803 through 5805, read together, cover the entire spectrum of the Board's continuing jurisdiction. (1 Hanna, Cal. Law of Employee Injuries and Workmen's Compensation (1988) § 9.01, pp. 9-5--9-6.) ⁷

On January 1, 1983, subsequent to the Bekins decision, specific limitations applicable to requests for vocational rehabilitation benefits under section 139.5 were codified. (§§ 139.5, 5405.5, 5410, 5803; Stats. 1982, ch. 922, §§ 2, 14-16, pp. 3365, 3371-3372.) Section 5803 was amended to give the Board continuing jurisdiction over the decisions and orders of the Bureau under section 139.5, and section 139.5 was amended to provide that requests for rehabilitation are governed by sections 5405.5, 5410, and 5803. (Stats. 1982, ch. 922, §§ 2, 16, pp. 3365, 3372.) Section 5410 was amended to add "vocational rehabilitation," in addition to "new and further disability," as a specific ground for reopening a prior decision, or for initiating an original claim within five years after the date of injury.

The Legislature also enacted section 5405.5, which reads: "Except as otherwise provided in Section 5410, the period within which an employee may request vocational rehabilitation benefits provided by Section 139.5 is one year from the date of the last finding of permanent disability by the appeals board, or one year from the date the appeals board approved a compromise and release of other issues." (Italics added.)

DISCUSSION

Our task is to interpret section 5405.5 and to determine its effect on applicant's claim for rehabilitation when it is read together with section 5410 and sections...