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T and T Construction v. Workers' Compensation Appeals Board and Curtis Ray Hillman

June 1, 2012

T AND T CONSTRUCTION, PETITIONER,
v.
WORKERS' COMPENSATION APPEALS BOARD AND CURTIS RAY HILLMAN, DECEASED, ETC., RESPONDENTS.



(WCAB No. ADJ6530698)

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

T and T Construction v. WCAB (Hillman)

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Respondent Curtis Ray Hillman was injured while working as a road grader for petitioner T and T Construction (T and T) and subsequently died.*fn1 In this review of a Workers' Compensation Appeals Board (Board) decision denying T and T's petition for reconsideration, we must determine whether the workers' compensation judge (WCJ) properly construed Labor Code section 5407 to permit Hillman's surviving beneficiary to pursue a petition for serious and willful misconduct filed within 12 months of the date of injury but not served until two and one-half months later. We agree with the WCJ's construction of the statute and shall deny the petition for review.

FACTUAL AND PROCEDURAL BACKGROUND

On August 25, 2008, Hillman sustained a serious injury while on the job. Hillman died on September 11, 2008.

On September 10, 2008, Hillman's counsel filed an application for adjudication of claim with the Board and served T and T with a copy of the application.

Hillman's counsel filed a petition for serious and willful misconduct with the Board on August 20, 2009. The petition was never served on T and T. On November 6, 2009, counsel filed with the Board an amended petition for serious and willful misconduct. That same day, counsel served T and T with a copy of the amended petition.

T and T submitted briefs, arguing that because Hillman failed to file and serve the petition for serious and willful misconduct within the 12-month limitations period, the proceeding is barred.

The parties submitted the matter to the WCJ on the proper interpretation of the limitations period set forth in Labor Code section 5407.*fn2 Specifically, the parties asked the WCJ to consider whether an applicant must commence a serious and willful misconduct proceeding by filing the claim and giving notice to the employer, or whether filing the claim without employer notice is sufficient. The WCJ found Hillman's claim for increased benefits was not barred by the statute of limitations in section 5407.

T and T filed a petition for reconsideration. The WCJ filed a report recommending denial of the petition, noting, "[T]he determination regarding whether the case could go forward was not based only on the meaning of one word. The intent of the statute and the impact on the employer were both considered. [¶] . . . [¶] The purpose of the Statute of Limitations is to allow the employer sufficient notice to prepare a defense in close proximity to the event. The service of the original claim for increased benefits was late by 2[-]1/2 months. This delay did not seem sufficiently egregious to warrant barring the applicant the right to pursue her claim when the jurisdictional threshold of filing with the WCAB was made within the statutory time limits." The Board denied T and T's petition for reconsideration, adopting the WCJ's reasoning.

T and T filed a timely petition for writ of review. T and T asks us to find that Hillman's petition for serious and willful misconduct was untimely under section 5407 because it was not ...


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