Zurich Ins. Co. v. Workmen's Comp. Appeals Bd.
Decision Date | 02 August 1973 |
Docket Number | S.F. 22998 |
Citation | 512 P.2d 843,109 Cal.Rptr. 211,9 Cal.3d 848 |
Court | California Supreme Court |
Parties | , 512 P.2d 843 ZURICH INSURANCE COMPANY, Petitioner, v. WORKMEN'S COMPENSATION APPEALS BOARD and Orlando M. Cairo, Respondents. |
Franklin O. Grady, Marcel L. Gunther, Sheldon C. St. Clair, Charles P. Scully, and Lowell A. Airola, San Francisco, for respondents.
Petitioner seeks review of a decision of the Workmen's Compensation Appeals Board (hereinafter referred to as 'the board'), after reconsideration, in which the board made awards for new and further permanent disability.
The applicant, while employed by Macy's Department Store as a laborer or warehouseman, sustained a compensable injury to his low back on March 1, 1966, while lifting heavy bedding and furniture at the employer's warehouse in San Bruno, California. He was provided compensation benefits through May 1, 1966, and resumed work at the warehouse on approximately that date. On June 14, 1966, the applicant sustained a second injury, described as 'while working, lifted heavy pieces of furniture, felt severe pain in upper part of back.' Medical treatment for the second injury was provided, including hospitalization from August 31, 1966, to September 8, 1966. The applicant filed applications for benefits for the injuries of March 1 and June 14, 1966 (cases 66 SF 215--321 and 66 SF 216--220). Thereafter, on March 1, 1968, following alleged incidents of injuries at work for the same employer on February 12 and February 14, 1968, he was discharged.
On May 27, 1968, Findings and Award issued in each case covering the March 1 and June 14, 1966, injuries, each injury having been found to have caused permanent disability of 6 1/2 percent after apportionment. Following grant of reconsideration, the referee's decision was amended to allow continuing medical treatment for each injury.
On April 28, 1969, the applicant filed an application alleging injury on February 12, 1968 (case 69 SF 225--551). Petitioner and the employer responded by filing a Petition to Terminate Liability for Medical Treatment is cases 66 215--321 and 66 216--220. Issues in all three cases were framed at a hearing on January 21, 1970, and all three were ordered off calendar pending agreed or independent medical evaluation.
At a hearing on May 18, 1970, the record was supplemented by a report of Dr. Frank W. Lusignan, an agreed medical examiner, and reports of two psychiatric examiners, Dr. Percy P. Poliak for the applicant and Dr. Willard H. Pennell for petitioner and the employer, as well as the applicant's testimony and the testimony of Dr. P. A. Lindstrom in his behalf.
In companion case 69 225--551, covering the alleged injury of February 12, 1968, a Report of Permanent Disability was filed and served on July 17, 1970, reflecting the Rating Bureau's assessment of permanent disability attributable to the injury of February 12, 1968, as described by the referee, to be 50 3/4 percent.
On December 7, 1970, in cases 66 215--321 and 66 216--220, the referee issued Notice of Intention of Increase Compensation Awarded, on the ground that disability indemnified by the prior awards had increased. The notice provided that in the absence of good cause shown to the contrary, served and filed within ten days following service of the notice, supplementary award would issue finding that each of the injuries of March 1, 1966, and June 14, 1966, had caused new and further permanent disability, and that the total amount of residual permanent disability attributable to each was 33 1/2 percent. By letter dated December 14, 1970, counsel for petitioner filed written objection in response to the Notice of Intention. The objection was in the form of argument, and no further proceedings were requested.
On July 19, 1971, which was about five years and one month after the last of the two injuries, the referee issued Supplemental Findings and Awards, finding, among other things, that the injuries of March 1 and June 14, 1966, had caused new and further permanent disability to that indemnified by the prior Findings and Awards, ratable at 33 1/2 percent for each injury. At the same time, the referee issued a take nothing order in case 69 225--551, based on a finding that the action was barred by the one-year statute of limitations. (Lab.Code, § 5405.)
Petitioner thereafter petitioned in cases 66 215--321 and 66 216--220 for reconsideration, which was granted; and on January 17, 1972, which was more than five and a half years after the last injury, the board issued its decision affirming the Supplemental Findings and Awards.
Questions. First. Did the board have the power to amend its awards more than five years after the injuries occurred?
Yes. Petitioner contends that the board had no power to amend the awards, because no party in interest had, within the five-year limitation period prescribed by the Labor Code, filed a petition requesting such action.
Section 5410 of the Labor Code provides: And section 5804 of the Labor Code provides: 'No award of compensation shall be rescinded, altered, or amended after five years from the date of the injury except upon a petition by a party in interest filed within such five years . . ..'
Admittedly, no petition for the increased awards was filed by a 'party in interest.' The referee's notice, however, which was filed on December 7, 1970, well within the five-year period, specified not only the ground for relief, but the relief to be considered; and the absence of a petition by the applicant cannot in any way have prejudiced petitioner. The applicant, on the other hand, could reasonably have been lulled by the referee's action into thinking that there was no necessity for him to file a petition; and the time for him to have filed would not have expired until March 1, 1971, in one case and June 14, 1971, in the other.
In Subsequent Injuries Fund v. Workmen's Comp. App. Bd., 2 Cal.3d 56, 65, 84 Cal.Rptr. 140, 465 P.2d 28, this court reiterated the doctrine that limitation provisions in the Labor Code must be liberally construed in favor of employees unless otherwise compelled by the language of the statute. (Lab. Code, § 3202; Fruehauf Corp. v. Workmen's Comp. App. Bd., 68 Cal.2d 569, 577(4), 68 Cal.Rptr. 164, 440 P.2d 236.) Applying such doctrine, the Court of Appeal recently held that a letter written by a doctor at an employee's request, stating that an award was insufficient in view of the injury, could be regarded as the institution of proceedings by a party in interest under section 5410 or as a 'petition by a party in interest' within the meaning of section 5804. (Beaida v. Workmen's Comp. App. Bd., 263 Cal.App.2d 204, 208--210, 69 Cal.Rptr. 516, 520.) An analogous situation exists here.
Under the circumstances, the referee's notice should be treated as a petition to reopen under the provisions of the Labor Code hereinabove referred to. As a result, the board had the power to amend the awards at the time it did so.
Second. Was the applicant's disability properly rated?
Yes. The referee in his Opinion on Decisions stated, among other things, in describing the applicant's disability: 'In finding that the injuries of March 1, 1966 and June 16 (sic), 1966 caused new and further permanent disability such as to limit applicant to semi-sedentary work, I am persuaded by the views expressed by Dr. Poliak. He says, in substance, that although there may be no organic reasons for applicant's subjective complaints, those complaints are nonetheless reasonably attributable to the work incidents of March 1 and June 14, 1966; that these incidents initiated 'the disabling psychoneurotic condition which is now in evidence."
Petitioner argues that, as a result, the referee should have used the rating formula applicable to disability in the form of neurosis. The referee, however, further stated in his report: (Italics added.) Accordingly, no showing has been made that the formula used by the board was not proper.
Third. Is there substantial evidence to support the board's finding that each of the 1966 injuries caused new and further disability?
Yes. As pointed out in the referee's report, neither the March 1, 1966, nor the June 14, 1966, incident can be considered to have caused Orthopedic disability in excess of that indemnified by the awards of May 27, 1968; but Dr. Poliak's report, hereinabove referred to, indicates that those work incidents initiated the disabling psychoneurotic condition which later developed. This condition could reasonably be found to constitute new and further disability, manifested by disabling back and leg pain.
Under this court's holding in Garza v. Workmen's Comp. App. Bd., 3 Cal.3d 312, 319, 90 Cal.Rptr. 355, 475 P.2d 451, findings of the referee are entitled to great weight; and factual determinations of the board must be upheld if, based on the entire record, such findings are supported by substantial evidence. (LeVesque v. Workmen's Comp. App. Bd., 1 Cal.3d 627, 637, 83 Cal.Rptr. 208, 463 P.2d 432(3).)
The board, incidentally, concluded that no part of the applicant's present disability was attributable to the incident of February 12, 1968. The amount awarded in the cases relating to the 1966 incidents was the amount specified in the notice of intention issued by the referee...
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