Can the 5-year statute of limitations be waived when reopening under LC 5710? This new, unpublished decision may raise eyebrows. It permits amending a prior Findings and Award for higher PD more than 5 years after the date of injury.
It also distinguishes between Labor Code Section 5410 and Sections 5803/5804 for purposes of the 5-year deadline.
Between 1975 and May 1996 the worker sustained multiple work injuries which resulted in various stipulations and awards of PD. In August 2001 (more than 5 years after all of the injuries) he petitioned to reopen.
In a 2002 report, the AME found that the disability hadn't changed significantly. However, in a report written in 2006 the same doctor said the worker's condition had deteriorated considerably.
At a subsequent trial, the parties stipulated that good cause to reopen had been shown and that an earlier 35% disability was now ratable at a level of 89%. The employer requested credit for the earlier disability and the matter was submitted on SB 899 apportionment issues.
The WCJ ultimately ruled that there should be no new apportionment and awarded the increased disability based on the AME's report and the parties' stipulations. The judge never specifically stated which Labor Code reopening sections (5410 or 5803/5804) were being applied.
On reconsideration, the employer for the first time argued that the WCAB lacked jurisdiction since it had been more than 5 years since any relevant dates of injury. The WCAB adopted the WCJ's opinion and denied reconsideration. The employer then requested a Writ and review was granted by the Second District.
First, the appellate court looked into which Labor Code section was applicable for reopening the case in the first place. It ruled that, despite the judge failing to specify which section applied, it was clear from the record that Section 5410 was the appropriate section.
Then, after reviewing the legislative intent behind sections 5410, 5803 and 5804, as well as noting that they were placed in different subdivisions of the Labor Code, the Court held that Section 5410 was distinguishable from sections 5803 and 5804 insofar as the 5-year statute of limitations was concerned -- and that the 5-year deadline could be waived if not raised in instance where Labor Code Section 5410 was involved:
"The [employer] contends that the WCJ was mistaken that timeliness of the petition to reopen or the lack of jurisdiction should have been raised at trial because subject matter jurisdiction is not conferred by consent, waiver, or estoppel and may be raised even on appeal. We disagree.
"...the running of the limitations period of five years after the date of injury does not extinguish the injured worker's right to institute proceedings to collect compensation for "new and further disability"... it operates as a bar to the remedy, which is an affirmative defense that may be waived if not raised prior to submission at trial."
"...We conclude that the WCAB had continuing jurisdiction to award the increased permanent disability because the [employer] failed to raise at trial the running of the applicable statute of limitations period of five years after the date of injury and waived the issue."
Accordingly, the Court ruled that despite it being more than 5 years from the date of injury, and despite there being a prior Award, the employer had waived its right to object to the deadline by not raising it at trial and an award for a higher PD rating was proper.
The opinion, though lengthy, is worth reading. The case is City of LA v. WCAB (Johnson).
To read the full opinion,
PLEASE CLICK HERE.
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