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Jayna Popovich v. Workers' Compensation Appeals Board and Department of Corrections and Rehabilitation

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT


September 28, 2011

JAYNA POPOVICH, PETITIONER,
v.
WORKERS' COMPENSATION APPEALS BOARD AND DEPARTMENT OF CORRECTIONS AND REHABILITATION, RESPONDENTS.

(WCAB No. ADJ2927671)

The opinion of the court was delivered by: Hull , J.

Popovich v. WCAB

CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Labor Code sections 5410 and 5804 establish a five-year limitation period from the date of injury for awards of workers' compensation disability benefits. (Further undesignated statutory references are to the Labor Code.) In General Foundry Service v. Workers' Comp. Appeals Bd. (1986) 42 Cal.3d 331 (General Foundry), the California Supreme Court held this limitation period does not apply to an award of permanent disability benefits in cases of insidious, progressive diseases, which have long latency periods.

In 2000, petitioner filed a worker's compensation claim based on an insidious, progressive injury. In 2002, the Workers' Compensation Appeals Board (Board) entered an order on the parties' stipulation that petitioner had not yet suffered any disability as a result of the injury and the Board's jurisdiction shall extend beyond the five-year limit. The stipulation cited General Foundry.

In 2009, petitioner filed a petition to reopen for new and further disability, seeking an award of temporary total disability. The Board concluded General Foundry does not apply to awards of temporary disability benefits and denied relief.

We conclude General Foundry is inapplicable to the present matter, because the five-year limitation period did not begin to run until petitioner suffered disability, which did not occur until 2009. Therefore, the petition to reopen was timely.

Facts and Proceedings

Petitioner Jayna Popovich sustained a cumulative injury to her liver, diagnosed in 1999 as Hepatitis C, arising from her employment as a correctional officer with respondent Department of Corrections and Rehabilitation. In August 2000, she filed an application for adjudication of claim with the Board and, on September 5, 2002, the parties entered into a stipulation that petitioner had not yet suffered either temporary or permanent disability as a result of the injury. The stipulation further stated: "Parties stipulate that Hepatitis C is an insidious disease process that extends the jurisdiction of the [Board] beyond the statutory 5 years. [Citations.] This finding is based upon the report of the AME, Ira Fishman M.D. dated 2/22/02 and 1/25/02." The Board entered an award in accordance with the stipulation.

On July 3, 2009, petitioner filed a petition to reopen for new and further disability, seeking an award of temporary total disability. The parties submitted the matter to the Board on the issue of whether the 2002 reservation of jurisdiction "allowed for an award of temporary disability more than 5 years after the date of injury."

The workers' compensation judge (WCJ) denied the petition, concluding he had no jurisdiction to award temporary disability benefits more than five years after the injury, because the reservation of jurisdiction applied only to permanent disability benefits. Petitioner filed a petition for reconsideration, which the Board denied.

On November 10, 2010, petitioner filed a petition for review in this court. On January 6, 2011, we granted review.

Discussion

"The [Board] is vested with the authority and jurisdiction to conduct proceedings for the recovery of compensation. (§ 5300 et seq.) Concomitantly, it is empowered with continuing jurisdictional authority over all of its orders, decisions and awards. (§ 5803.) However, this power is not unlimited." (Nickelsberg v. Workers' Comp. Appeals Bd. (1991) 54 Cal.3d 288, 297.) The power to alter a prior award is subject to sections 5410 and 5804. (Ibid.)

Section 5410 reads: "Nothing in this chapter shall bar the right of any injured worker to institute proceedings for the collection of compensation . . . within five years after the date of the injury upon the ground that the original injury has caused new and further disability . . . . The jurisdiction of the appeals board in these cases shall be a continuing jurisdiction within this period. . . ." (Italics added.) Section 5804 states: "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 . . . ." (Italics added.)

In General Foundry, the California Supreme Court carved out an exception to the foregoing five-year limitations for "insidious, progressive diseases." (General Foundry, supra, 42 Cal.3d at p. 338.) For such diseases, which have long latency periods and may not become permanent and stationary within five years, the Board "may reserve jurisdiction on the question of permanent disability and continue its jurisdiction beyond the five-year period." (Barnes v. Workers' Comp. Appeals Bd. (2000) 23 Cal.4th 679, 687; General Foundry, supra, 42 Cal.3d at p. 338.)

In the present matter, the Board concluded General Foundry does not apply to temporary disability benefits. In Hartsuiker v. Workers' Comp. Appeals Bd. (1993) 12 Cal.App.4th 209 (Hartsuiker), the Court of Appeal concluded the Board has no authority to reserve jurisdiction for the purpose of awarding temporary total disability benefits more than five years after the date of injury. (Id. at p. 211.) While recognizing the public policy that "workers should be compensated when they are required to forego work in order to obtain necessary treatment for their industrial injuries[,]" the court explained the present statutory scheme simply does not allow for it. (Id. at p. 219.)

Hartsuiker is inapposite, as it did not involve an insidious, progressive disease, as in General Foundry. Thus, the question remains whether the exception carved out in General Foundry should be extended to temporary disability benefits.

In MacDonald v. Western Asbestos Company (1982) 47 Cal.Comp.Cases 365 (MacDonald), the applicant worked as an asbestos installer until his retirement in 1972 and did not develop lung symptoms until seven years later. The WCJ found temporary total disability beginning July 1, 1980. However, because the applicant had already withdrawn from the labor market, he was found not to be entitled to temporary disability benefits. (Id. at pp. 365-366.) The Board disagreed and awarded benefits at the minimum rate. According to the Board, if it were to conclude otherwise, "the delay in the onset of disability, due to the insidious nature of the industrial disease, would produce a windfall to the employer by relieving it of the payment of disability benefits which arise because of injuries occurred [sic] in the course of or arising out of employment." (Id. at p. 368.)

In their 2002 stipulation, the parties cited both General Foundry and MacDonald. Petitioner contends it may be inferred from this that the parties intended the reservation of jurisdiction to apply both to permanent and to temporary disability benefits.

Of course, the fact the parties may have intended that Board jurisdiction extend beyond the five-year limitation period does not make it so. The question remains whether the Board had the legal authority to reserve jurisdiction to award temporary disability benefits beyond the limitations period.

But we need not decide that issue. In their stipulation, the parties also cited Chavira v. Workers' Comp. Appeals Bd. (1991) 235 Cal.App.3d 463 (Chavira). In Chavira, the Court of Appeal undertook an extensive discussion of when a worker with an insidious, progressive disease sustains an injury for purposes of filing a workers' compensation claim. Section 5412 states: "The date of injury in cases of occupational diseases or cumulative injuries is that date upon which the employee first suffered disability therefrom and either knew, or in the exercise of reasonable diligence should have known, that such disability was caused by his present or prior employment." An application for benefits must be filed within one year of the date of injury. (§ 5405.) The court indicated disability for purposes of section 5412 means either temporary disability, i.e., loss of earnings, or permanent disability, i.e., loss of earning capacity with or without an actual loss of earnings. (Chavira, at pp. 473-474.)

In their 2002 stipulation, the parties indicated petitioner had not yet suffered any temporary or permanent disability. We therefore requested supplemental briefing on two issues: (1) whether petitioner suffered a disability in 2002 for purposes of determining the date of injury, and (2) if not, when the five-year limitation period began to run. Both parties responded, agreeing that petitioner did not suffer a disability until 2010 and the limitation period did not begin to run until then.

In light of the parties' responses and the record before us, we conclude the Board erred in concluding the petition to reopen for an award of temporary disability was untimely. The decision of the Board must therefore be vacated and the petition to reopen must be considered on the merits.

Disposition

The order of the Board on reconsideration is annulled and the matter remanded for further proceedings consistent with the views expressed in this opinion. Petitioner shall recover the costs she incurred in this proceeding.

We concur: NICHOLSON , Acting P. J. MURRAY , J.

20110928

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