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

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, ...


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