*1 Dist., Nov. Second Div. Six. B155646. 2002.] [No. MARTINO, Petitioner,
BRENDA v. and CALIFORNIA APPEALS BOARD COMPENSATION WORKERS’ ASSOCIATION, Respondents. INSURANCE GUARANTEE *2 Counsel
William A. Herreras for Petitioner. for
Stockwell, David E. Jones Harris, Respondent Widom & Woolverton and Guarantee Association. California Insurance Board. Compensation Appeals Respondent No appearance *3 Opinion
GILBERT, Compensa the order of respondent P. J.We review to While Board reconsideration. (WCAB) denying tion Appeals services was pending terminate an vocational rehabilitation (VR) employee’s the the to with petitioned reopen before rehabilitation unit (RU), employee She disability. within five of her for new and further years injury WCAB be While the to was reopen pending, also VR reinstated. requested the the to reopen VR services terminated RU. Thereafter by were for Here we WCAB. conclude granted by employee’s petition of reverse. of VR is barred the statute limitations. We reinstatement
Facts on industrial back injury
Petitioner Brenda Martino sustained an admitted insurer, On wrote her employer’s 1995. June Martino April Insurance VR benefits. requesting National Superior Company (Superior),1 consultant. Marti- and the selected a rehabilitation agreed, Superior parties re- in the and she no’s her from injury prevented participating program, be or deferred.2 The interrupted parties that rehabilitation services quested extension, 1, 1996, 1996. July to a one-month from agreed July of two extensions. Each Martino and more Superior granted timely requested the following the letters to extensions contains Superior agreeing from five that have no more than you notice: “Please remember that law states If rehabilitation services. from date of additional injury request years your above, your end date shown do not services by interruption you request a further request Martino did not to rehabilitation will end.” rights probably of date the last extension beyond agreed extension of the VR program 20, 1998. February awarded 26, 1998, the compensation judge (WCJ)
On workers’ February and further medical treatment permanent disability, Martino 59Vi percent The order did not mention VR. attorney fees. 1 concluded, liquidated. Respondent California proceedings After WCAB statutory Superior’s discharged responsibilities for Association then its
Insurance Guarantee seq. et obligations, Code section 1063.1 required as Insurance VR sought interruption or deferral of 2It is not clear from record whether Martino services. 9, 1998,
On Superior filed an with the April RU requesting that for VR liability services be terminated. 24, 1998,
On before the RU made a determination on Superior’s terminate, Martino filed a with the WCAB new and alleging further VR disability be requesting reopened. On the RU May granted to terminate VR Superior’s request services, that “there are no finding current the inter- grounds extending ruption rehabilitation of process Regu- Code pursuant [California lations, title 8,] section 10129 . . . .” The RU’s determination also states: “The retains right per process Code 4-10-2000, 5410—this must made or within prior [Labor section] from the of date In view of the nature of the denial injury. *4 services, vocational rehabilitation in order to reinstate the rehabilitation the process, only will to submit a written for required request same, the albeit on a timely basis as stated.” previously (Capitalization omitted.) 30, 2000,
On the WCJ May granted Martino’s reopen, finding new and further to her and disability back her increasing permanent disabil- The ity rating 851/2 WCJ’s on decision “There percent. opinion states: little seems to be doubt that there is cause to back good reopen. Applicant’s has there disability changed and has been an additional of clearly period The order not mention temporary disability.” does VR. award,
Within one year of the on supplemental January Martino wrote reinstatement of VR services. When Superior requesting failed to Martino filed a for respond, resolution the RU. dispute with A formal the conference failed resolve issue. RU determi- The issued a 29, 2001, nation order and on March on the denying reinstatement of VR the ground that barred the that request was statute of limitations. On day, Martino filed a first WCAB, amended with the in reopen stating awarded, part: was on “Applicant May 85-1/2% dis- permanent the ability; year seeks to rehabilitation one from applicant reopen (1) May 30, 2000 Award.” She also the RU’s determination. appealed 25, 2001,
On the WCJ denied Martino’s and the WCAB May appeal, reconsideration, denied Martino’s for WCJ’s eventually the adopting and on report recommendation reconsideration as its own without further comment. review, contending that filed a for timely petition
Martino section 24, 1998, Labor Code timely filed under her and injury; five of date of it was filed within years 54103 because be section 5405.5 timely under first amended petition her and award of new of the May it filed within one year cause was further disability.
Discussion workers. to offer VR services qualified An is employer required 139.5, 3207; Veilleux v. Workers’ Comp. Appeals (§§ “Nothing in part: 5410 states 568].) Section Cal.App.3d of worker to institute proceed- this bar the chapter right any injured shall including for of vocational the collection ings compensation, services, injury upon ground within five after date or that has new further original disability provision caused injury em- because the of vocational rehabilitation services has become feasible or because of other factors medical condition has improved ployee’s time liability of at the vocational employer’s determination capable The jurisdiction appeals rehabilitation services otherwise terminated. cases shall be a within this continuing jurisdiction period.” board these is a limitation to facts undisputed
The of VR statutes of v. Workers’ Comp. of law to de novo review. subject (Martinez question *5 1079, 406].) 84 1084 Cal.Rptr.2d Bd. Appeals (2000) Cal.App.4th [101 “ ‘Limitations must be in the law compensation workmen’s provisions by in unless otherwise liberally compelled construed favor employee be in statute, the the and such should not language interpreted of enactments manner a loss v. (Bland which will result in’ of Workmen’s compensation.” 431, 475 P.2d 324, Bd. 3 Cal.3d 330-331 App. Cal.Rptr. Comp. (1970) [90 Bd. 181 see Bussear v. 663]; Comp. also Workers’ Appeals 186, legislative 193 Cal.App.3d Cal.Rptr. purpose [226 242] [“[T]he to participate section 139.5 to enable workers enacting injured to extent training rehabilitation the fullest possible”].) 5410, under section the continuing jurisdiction To invoke WCAB’s that an only appropriate Act (Act) requires the Workers’ Compensation injury. the date of within five from be filed with the WCAB pleading ed. (6th 2001) Law Herlick, Compensation 1 Cal. Workers’ (See generally filed is 14.06, timely If pleading 14-24 to an 14-24.5.) appropriate pp. § decide a the WCAB to reopen the the of five-year period, power within App. v. Comp. Workmen’s five-year period. (Bland matter extends the beyond the Labor Code. statutory 3All references are to
490 Bd., 329, 3; 3 see p. Cal.3d at fn. also General Service supra, v. Foundry 331, Workers’ Bd. 42 Comp. Cal.3d 337 Appeals Cal.Rptr. [228 721 P.2d Board the clearly has to continue its power jurisdiction 124] [“The the when an beyond five-year application is made within that period pe- riod”].)
The found RU that Martino’s April to was not petition section timely under 5410 because the out petition “chronologically of given that the sequence, subsequently was closed on process 5-11-98.” The WCJ otherwise would to state agreed, stating argue “[t]o that one is attempting reopen something before it has been decided which is not certainly acceptable.” findings
These of untimeliness are not the the by facts or law. supported The WCAB, was filed with the not the RU. The issue only before the RU was whether to grant Superior’s terminate for VR. The RU’s liability decision regarding Superior’s request VR terminate no the benefits had effect on continuing WCAB’s jurisdiction to act on the timely filed the to reinstate reopen containing VR. A timely reopen remains and is not affected pending statute of limitations there been where has no of kind any decision WCAB on at specific form benefits issue. v. Workmen’s (Bland Comp. Bd., at App. supra, Cal.3d pp. 333-334.)
Moreover, neither Act nor case law an requires adhere strict chronological to a when filing documents in admin sequence istrative To the it proceedings. contrary, is an often-stated principle that the Act disfavors of formalistic rules of procedure would defeat entitlement to rehabilitation benefits. employee’s (See e.g., Rubio v. Cal.App.3d Board’s rules ‘serve convenience of the procedural 461] [“The tribunal and and facilitate the do litigant[s] proceedings. They the tribunal of when deprive power to with dispense compliance *6 it, justice of when the purposes particularly violation is formal and require does not the other this court substantially prejudice party’ ”].) Accordingly, has refused to rules of strictly technical if to do so would apply procedure ’ a worker of In v. deprive benefits. Workers Bd. Vasquez Comp. Appeals 226 Cal.App.3d 102], 867 we held that a box Cal.Rptr. checking [277 on an for adjudication indicating that VR was is suffi disputed cient a to constitute for rehabilitation benefits within the of request statute even limitations absent a formal with the RU. request This court’s decision in v. Rivera Workers’ Comp. Appeals 190 1452 is on Cal.App.3d also There we point. [236 28]
491 even was not defective from a RU decision appeal held that an employee’s said, “The and order. We filed its decision it filed before the RU was though technicality the procedural In its on basing ruling erred .... clearly Board the formal requirements not meet declaration did that readiness applicant’s case law decision, overlooked the Board from the Bureau filing appeal and not are informal and pleadings proceedings that workers’ compensation over The Board also Board jurisdiction. utilized to preclude [Citations.] XIV, the Const., legislative 4), art. the constitutional mandate (Cal. looked § Court Code, Supreme decisions 3202), repeated mandate (Lab. § in favor of construed liberally laws be that workers’ compensation [citations] in v. Beveridge As stated workers. substantial affording justice P.2d 545], Cal.App.2d Industrial Acc. Com. rather than upon substance claim is entitled to adjudication upon ‘applicant’s ” that the argument at 1456.) Rejecting statement.’ formality (Rivera, p. of filed because it was the readiness declaration premature employee’s order order, an appealable we said: “Since before the RU issued written certificate should Bureau, readiness in fact entered the by applicant’s (Id. entered.” order was effect filed before written though full even given at 1457.) p. with to reopen that Martino’s of filing
There is no evidence Supe- determination prejudiced before the RU issued its written WCAB by filing deceive or Superior rior or that Martino intended to surprise “ not tied circumstances, ‘hands were Under these WCAB’s petition. ” Bd., v. supra, its own rules’ procedural (Rubio should for reconsideration at and Martino’s 201), Cal.App.3d p. been granted. have of rehabilitation for reinstatement
Our that Martino’s holding decide it for us to unnecessary 5410 makes is not barred section services 5405.5. erred in section the WCAB applying whether imagines the dissent for Superior, In its mission to secure “repose” opn., post, of orders.” finality (Dis. of concept our “eviscerates opinion the terms of the RU 5410 and Under section thing. We do no such 495.) at p. five of her within itself, to reopen Martino was entitled order services terminating order the RU issued its date of her When injury. 10, 2000. for VR up April be responsible knew it could future costs. its possible account when planning trust it took this into We and VR disability and further for new filed a to reopen Martino limitations. statute five-year well within under section 5410 *7 by as suggested Thus, no sudden economic prejudice, suffered dissent.
Cisneros v. Workers’ Cal.App.4th court, 655], decided this here. Cal.Rptr.2d provides guidance Applicant Cisneros settled his case of a and release. He an by way signed compromise Statement of Declination of Rehabilitation Vocational Services.” “Employee Cisneros did not when defendant filed a for Termination of object “Request Later, however, Rehabilitation Services.” Cisneros claimed he did not intend to waive VR. We remanded for the WCAB to determine Cisneros whether misunderstood the documents he future rehabili signed waiving right his tation If benefits. the WCAB determined that Cisneros did in fact understand he documents he could still be rehabilitation signed, eligible services. We held that “if the worker specifically timely object does services, the termination of rehabilitation he must come within the require (Cis ments of Labor Code section 5410 order to rehabilitation.” neros, at That is what here. p. 762.) happened
The order of WCAB Martino’s for reconsideration is denying vacated and the matter is remanded for a new order Martino’s granting petition.
Coffee, L, concurred. YEGAN, J., Dissenting.—I that we should construe limitations agree in workers’ law in favor of an provisions compensation liberally injured ante, worker at not elevate form over substance or (maj. opn., p. 489), (2) a insist on strict in the of documents chronological sequence filing ante, at applicant (maj. liberally view workers’ opn., p. 490), laws in favor of substantial work- compensation affording justice ante, Constitutional, ers at and decisional law (maj. opn., p. 491). statutory, However, must, dictates that these be furthered. there laudatory goals come a time when the rules dictate that the and its necessity, employer rules, insurance carrier no have The whether favor the longer liability. they instance, or the allow the some any given employer parties Here, the assurance and in their and liabilities. repose rights respective workers’ and the workers’ compensation judge (WCJ) compensation appeals board have determined that is not entitled to vocational (WCAB) applicant her rehabilitation benefits because she did not or timely appropriately perfect carrier, the therefor. This case is not one where the its employer, WCJ, rule to benefits. deny and WCAB insisted upon hypertechnical too. rights Insurance carriers have it vocational rehabili- the carrier did could
Initially, everything provide it did tation to When became applicant. reasonably apparent applicant services, not want those it secured an order from the vocational
493
time,
At that point
therefor.
liability
terminating
unit (hereafter RU)
financially
to
the order and was not required
on
reasonably rely
carrier could
the carrier to
This allowed
in the future.
the costs of such services
on
plan
(See
workers.
of services to other
for the costs
financially plan
Bd.
39
(1985)
v. Workers’
Hospitals
Kaiser Foundation
that
115,
changed by
All of
is
57,
On April terminated. Lab. that for VR be liability (See Company (carrier), requested Code, 4644, ’ 84 Martinez v. Workers Comp. Appeals subd. (b); § the RU heard Before even 406].) 1086 Cal.Rptr.2d Cal.App.4th with the matter, reopen filed an 1998 appellant WCAB, not the RU.2 VR carrier’s to terminate request
On the RU May granted right reopen that she had services. The order advised appellant “MUST reopen 5410 and that a request to Labor Code section pursuant 4-10-2000, 5 YEARS FROM THE TO OR WITHIN BE MADE PRIOR IS FI- “THIS DETERMINATION DATE OF INJURY.” The order stated: APPEAL WITH THE PARTY MUST FILE AN NAL. ANY AGGRIEVED TWENTY APPEALS BOARD WITHIN WORKERS’ COMPENSATION THIS DETERMINA- THE DATE OF SERVICE OF DAYS FROM the RU hearing. not at TION.” The discussed reconsideration, or the May move for appeal did not object, Applicant reserve jurisdiction did she that WCAB order. Nor request 10129.1, (b) pertinent subdivision states Regulations, title section 1California Code of subsequent accepting ser may rehabilitation services interrupt “An part: (Italics added.) vices. . . .” ante, 489.) It was not (Maj. opn., p.at say “appropriate.” majority request 2The motion, reopen VR requests to of this the obvious untimeliness appropriate. apart from Quite Hanna, Employee Law of (2 .” Cal. Unit. . . filed with the “should be [rehabilitation] ed., edit., Rehabilita 2001) Vocational 2d Tancor Compensation (rev. Injuries and Workers’ WCAB; & Fraile v. Dzurilla 35.73, 35-89, tion, relying opinion an en banc p. upon § 523.) Cal.Comp.Cases Dymond Co. Construction designed for of WCAB rules micromanage not Appeal The Court of should that a requiring The rule adjudication compensation benefits. orderly reasonable, only but is seems with the RU be filed in the first instance VR benefits to make VR position in the best experts who are delegation appointed to the practical evaluations. *9 further
adjudicate VR services. Roberts (See v. Workers’ Comp. Bd. Appeals 631, 636, 3 (1992) fn. Cal.App.4th 8 The Cal.Rptr.2d infer- 576].) only [4 ence that flows from these occurrences is that waived VR applicant services. 30, 2000,
On May applicant’s permanent disability rating was increased to on her percent 8592 to She did not then ask for reopen. vocational 29, 2001, benefits. On she did so. The May WCAB found that was barred 1998 order and May Labor Code section 5410.
The majority hold that an a final RU applicant may ignore order if a to is filed reopen with the WCAB before VR services were closed. this By filing stealth to with a different reopen board hearing (the WCAB), is allowed to applicant attend RU hearing, say and nothing, later claim that successfully the order closing VR services was of no force or effect. This is akin to a filing motion for trial before new has jury returned a WCJ, verdict. In the words “one cannot what has reopen closed, not been If this were acceptable . . . practice, would ffl] [t]here ,”3 never be any . . . finality anything
An injured worker cannot VR services suspend by filing generic a before VR reopen services are closed. Where VR services are adjudicated closed, and the WCAB and lack RU jurisdiction consider a new request for VR services filed more than five from the years date of the industrial Code, injury. 5804; (Lab. v. Youngblood Workers’ Comp. Appeals §§ Bd. 216 (1989) 774 Cal.App.3d 211]; Sacramento Cal.Rptr. [265 County Education v. Workers’ Bd. 82 Off. of 107, 115 Cal.App.4th Cal.Rptr.2d 699].) [97
The assume that majority was not able applicant medically to use VR 30, 2000, services before when the May WCAB increased the permanent disability case, award. If that was the all she had to do was inform the timely RU and ask for an of services. There is interruption the record to nothing that she was support unable to use medically VR services. Unlike Pool v. Workers’ Bd. Comp. Appeals Cal.App.3d [259 564], rehabilitation services were not suspended so could seek applicant additional medical evaluation and treatment.
Labor Code section 5410 is “to foster both designed certainty and finality in the law. For believe a example, applicant may newly manifested times, applicant represented by 3At all experienced capable counsel. The record why 27, 2001, applicant attorney does show and her May waited from press ruling a on the earlier stealth motion to VR. for which injury compensation a industrial is caused disability by previous the claim Nevertheless, ability had been awarded. applicant’s In symmetrical of the injury (§ 5410). from the date years ceases five for the fashion, injured employee some generates repose section 5804 claim adjudicated .ability reopen previously terminating employer’s v. have passed.” (Barnes the date of the original injury once five from Cal.Rptr.2d 23 Cal.4th 686-687 Comp.Appeals 638, 2 fn. 1180], omitted.) P.3d *10 of the WCAB a liberal construction goes beyond
The majority’s opinion Now, every of orders. applicant It eviscerates the concept finality rules. the WCAB before just before can file a “Martino” petition the RU. The can applicant keep are closed by rehabilitation services later, services were dormant, and claim that rehabilitation section 5410 a nullity. Such a renders Labor Code suspended. procedure read as was modified to opinion printed On November above.